Default denied based upon quirk of NYCCCA 403 and 404

S & R Med., P.C. v Allstate Prop. & Cas. Ins. Co., 2017 NY Slip Op 50551(U)(App. Term 2d Dept. 2017).

I always knew this quirk existed.  I have not seen it utilized, but when you are in default and do not have a leg to stand on, you hunt down procedural hammers that have grown dusty.

“Section 403 of the New York City Civil Court Act provides that service “shall be made only within the city of New York unless service beyond the city be authorized by this act or by such other provision of law, other than the CPLR, as expressly applies to courts of limited jurisdiction or to all courts of the state.” Plaintiff appears to be arguing that defendant is not a resident of the City and, thus, to be implicitly arguing that the service was valid pursuant to CCA 404, which provides for service outside the City upon nonresidents in certain enumerated instances. However, defendant’s position is that it is a [*2]resident of the City of New York, in which case, pursuant to CCA 403, service was invalid. As neither plaintiff’s complaint nor its motion papers set forth any facts allowing for jurisdiction to be acquired over defendant by service outside the City of New York pursuant to CCA 404 (see All-State Credit Corp. v Defendants Listed in 669 Default Judgments, 61 Misc 2d 677 [App Term, 2d Dept, 9th & 10th Jud Dists 1970]), plaintiff has failed to show that service had been validly effectuated, and, thus, plaintiff failed to establish its entitlement to a default judgment.

Defendant is correct here.

Allstate has claims offices in the City and elsewhere.  Thus, service must be made at one of the NYC claims offices.  The way around this is to cough up $40 and to serve pursuant to Ins Law 1212.  Ins Law 1212(b), last sentence states: “Service of process so made shall be deemed to have been made within the territorial jurisdiction of any court in this state.”  Therefore service would be as if it was made on one of Allstate’s New York city offices.

Jursidictional defect (it really isn’t)

Tribeca Lending Corp. v Bartlett, 2014 NY Slip Op 07429 (1st Dept. 2014)

The realm of procedural snafus that can trigger the existences of jurisdiction defects, sufficient to warrant 5015(a)(4) treatment are quite narrow.  This case expresses this sentiment quite nicely.

“The alleged defects raised by defendant do not involve jurisdictional defects within the meaning of CPLR 5015(a)(4), and thus do not provide a basis for vacatur under that provision (Wells Fargo, N.A. v Levin, 101 AD3d 1519, 1521 [3d Dept 2012], lv dismissed 21 NY3d 887 [2013] [lack of standing is not a jurisdictional defect]; see Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, 68 AD3d 672, 673 [1st Dept 2009] [lack of a certificate of conformity is “not a fatal defect”]; see also Varon v Ciervo, 170 AD2d 446, 447 [2d Dept 1991] [untimely filing of proof of service is not a basis to vacate a notice of pendency]).”

The usual reminder is that it is quite difficult to get out of a judgment is resort is not made to 5015(a)(1)

No jurisdiction

Does anyone know if this is “the general”?  I always hear their commercials.

Metro Health Prods., Inc. v Access Gen. Ins. Co., 2014 NY Slip Op 50348(U)(App. Term 2d Dept. 2014)

“In an affidavit in support of the motion, defendant’s litigation specialist asserted that defendant is a Georgia-based corporation, which is not authorized to conduct business in New York State, does not issue or deliver contracts of insurance to New York State residents or to corporations authorized to do business in New York, does not solicit applications for contracts of insurance within New York State, does not have a power of attorney on file with the State of New York, has not filed a consent to service or declaration that its insurance policy be deemed in compliance with New York Vehicle and Traffic Law § 311 and does not control any New York State authorized company.”

No jurisdiction for out-of-state non licensed or credentialed insurance carrier in the state of New York

There was no long arm jurisdiction

J.C. Healing Touch Rehab, P.C. v Access Gen. Ins. Co., 2013 NY Slip Op 52086(U)(App Term 2d Dept. 2013)

“The litigation specialist alleged, among other things, that defendant maintained offices in Atlanta, Georgia and that defendant is not authorized to conduct business in New York. He further stated that defendant does not issue or deliver contracts of insurance to New York State residents or corporations authorized to do business in New York and has never had any employees either located in or working to solicit business in New York.”

“Here, defendant made a prima facie showing that personal jurisdiction had not been obtained [*2]over it based on any of the acts set forth in the Civil Court’s long-arm jurisdiction statute (CCA 404 [a]). In order for plaintiff to prove that the Civil Court had obtained personal jurisdiction over defendant, a corporation which is not a resident of the City of New York, plaintiff was required to establish that defendant either transacted business, contracted to supply goods or services, committed a tortious act, or used or possessed any real property within the City of New York”

“The affirmation of plaintiff’s attorney offered in opposition to defendant’s motion failed to demonstrate that he possessed personal knowledge of the facts to show that some basis for jurisdiction existed.”

It is always strange when you conceptualize yourself, driving through a state where your insurance coverage has no force or effect.  It is a scary proposition

CAN-O

American Transit Ins. Co. v. Cano, 2012 NY Slip Op 31608(U)(Sup. Ct. NY Co. 2012)

A New Jersey Hospital who renders treatment upon an EIP submits bills to the insurance carrier.  The bills are overdue.  EIP fails to comply with a condition precedent to coverage.  Insurance carrier brings a dreaded DJ action against the EIP and all providers who have the right to collect no-fault benefits.

Hospital moves to dismiss based upon the disingenuous argument that there is no jurisdiction.  The motion is denied in a nice decision by Justice Tingling.  See the link above.

Plf Attorney: Law Office of James F. Sullivan

Def Attorney: Unknown