Masigla v Windhaven Ins. Co., 2019 NY Slip Op 51169(U)(App. Term 2d Dept. 2019)
He wrote the book, but who wrote the answer? I am not quitting my day job anytime soon…
It appears that an innocent error in an answer could produce grave results for the insurance carrier.
“As to defendant’s second argument, there is no need to consider whether defendant’s claimed lack of contacts with New York might raise an issue of personal, rather than subject matter, jurisdiction, since, pursuant to CPLR 3211 (e), an objection to personal jurisdiction is waived unless it is raised in the answer or in a pre-answer motion to dismiss the complaint, whichever comes first (see Hatch v Tu Thi Tran, 170 AD2d 649 [1991]; see also Parasconda v Club Mateem, Inc., 33 Misc 3d 141[A], 2011 NY Slip Op 52201[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). “Absent the pursuit of either course, a defendant’s voluntary participation in litigation in which the point can be raised, in and of itself, constitutes a submission to the jurisdiction of the courts” (Gager v White, 53 NY2d 475, 488 [1981]). Here, defendant first appeared by interposing its answer, in which it raised the affirmative defense that [*2]the summons was not properly served, but was silent on the issue of personal jurisdiction due to a lack of a jurisdictional basis for the service. Thus, it waived all personal jurisdiction defenses other than the actual service of process (see Hatch, 170 AD2d at 649; Osserman v Osserman, 92 AD2d 932 [1983]).”
Personally, I think the Court court have construed that the summons was not properly served as a general personal jurisdiction defense. Not sure I agree with this Court’s holding, but my name is not on the order nor is my name Paul Kenny and my opinion does not really count.
The second basis for the decision is absolutely correct and is a lesson to everyone who tries to play the deemer does not apply to us game.
” Finally, even if, as defendant claims, it is exempt from Insurance Law § 5107, which requires certain insurers to provide no-fault coverage, defendant did not demonstrate that its policy did not provide such coverage, and, therefore, defendant did not demonstrate its entitlement to judgment as a matter of law.”
The reason as many of you coverage geeks know is that many insurance policy contains an out of state deemer provision in the insurance contract. This is separate and apart from Ins. Law 5107. Thus, absent presenting the contract of insurance, the Court properly found denied the motion as all triable issues of fact have not been eliminated.
