Healthwise Medical Associates, P.C. a/a/o Donte Sinclair, Plaintiff(s), v. Safe Auto Insurance Company, Defendant(s). (2026)

Plaintiff commenced the instant action on June 4, 2021 seeking to recover no-fault benefits for medical treatment rendered to plaintiff's assignor Donte Sinclair allegedly as a result of a motor vehicle accident that occurred on November 18, 2019.

On or about August 8, 2022, defendant filed a motion to dismiss the complaint (motion sequence no. 001). On or about May 11, 2023, plaintiff moved for leave to enter default judgment (motion sequence no. 002).¹ On or about August 29, 2023, plaintiff "cross-moved" pursuant to CPLR 3211 (c) to treat [presumably defendant's] motion as one for summary judgment, and for leave to enter default judgment, and limiting the issues for trial pursuant to CPLR 3212(g) (see NYSCEF Doc No 10) (motion sequence no. 003).

In the motion to dismiss the complaint pursuant to CPLR 3211, defendant did not reference any subdivision. The Court presumes the motion is made pursuant to subdivisions (a) (1), (7), and/or (8) based on the arguments raised in the papers, which claim, inter alia, a lack of personal jurisdiction due to improper service of process and lack of long-arm jurisdiction as defendant is allegedly not an authorized New York insurer and not authorized to do business in New York.

"[W]here, as here, a defendant seeking to vacate a default raises a jurisdictional objection pursuant to CPLR 5015 (a) (4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default" (Rattner v Fessler, 202 AD3d 1011, 1015 [2d Dept 2022]; see SOS Capital v Recycling Paper Partners of PA, LLC, 220 AD3d 25, 31 [1st Dept 2023] [discretionary vacatur pursuant to CPLR 5015 (a) (1) "assumes personal jurisdiction exists over a defaulting defendant"; thus, a court "must first resolve the issue of personal jurisdiction over the individual defendants before determining whether it [is] appropriate" to consider discretionary vacatur]).

Lack of Personal Jurisdiction: Service of Process

Defendant argues that service of process was improper per BCL 307. However, the manner of service was not attempted through that statute (see NYSCEF Doc No 14, affidavit of service) and defendant ignores that service appeared to have been achieved by CPLR 311 (a) (1). "An affidavit of service constitutes prima facie evidence of proper service" (Ocwen Loan Servicing, LLC v Ali, 180 AD3d 591 [1st Dept 2020]) and "[t]o rebut this prima facie showing, defendant was required to submit a sworn, nonconclusory denial of service or swear to specific facts to rebut the statements in the process server's affidavit" (JP Morgan Chase Bank v Dennis, 166 AD3d 530, 530-31 [1st Dept 2018]). Defendant failed to do so (see, e.g., Rattner, 202 AD3d at 1016—17; U.S. Bank N.A. v Telford, 153 AD3d 881, 881-82 [2d Dept 2017]). Accordingly, that branch of the motion is denied.

Lack of Personal Jurisdiction: CPLR 302 New York's Long-Arm Statute

"[A] New York court may not exercise personal jurisdiction over a non-domiciliary unless two requirements are satisfied: the action is permissible under the long-arm statute (CPLR 302) and the exercise of jurisdiction comports with due process" (SOS Capital, 220 AD3d at 32, quoting Williams v Beemiller, Inc., 33 NY3d 523, 528 [2019] [internal quotations omitted]; see Aybar v US Tires and Wheels of Queens, LLC, 211 AD3d 40, 52 [2d Dept 2022] ["When all the requirements of CPLR 302 are met, the exercise of personal jurisdiction still must comport with constitutional due process requirements"]).

CPLR 302 (a) (1) provides, in relevant part, that "a court may exercise personal jurisdiction over any non-domiciliary" who "transacts any business within the state or contracts anywhere to supply goods or services in the state." "[L]ong-arm jurisdiction over a nondomiciliary exists where (i) a defendant transacted business within the state and (ii) the cause of action arose from that transaction of business. If either prong of the statute is not met, jurisdiction cannot be conferred under CPLR 302 (a) (1)" (Johnson v Ward, 4 NY3d 516, 519 [2005]; Fanelli v Latman, 202 AD3d 758, 760 [2d Dept 2022] [CPLR 302 (a) (1)'s "jurisdictional inquiry is twofold: under the first prong the defendant must have conducted sufficient activities to have transacted business in the state, and under the second prong, the claims must arise from the transactions"], quoting Rushaid v Pictet & Cie, 28 NY3d 316, 323 [2016]; see Aybar, 211 AD3d at 48—49). By "transact[ing] any business," "[t]he statute requires '[p]urposeful activities,' i.e., 'those with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws' " (PC-16 Doe v Hill Regional Career High School, 223 AD3d 518, 518-20 [1st Dept 2024], quoting Fischbarg v Doucet, 9 NY3d 375, 380 [2007]). Even "proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted" (Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]).

"The ultimate burden of proving a basis for personal jurisdiction rests with the party asserting jurisdiction" (Fanelli, 202 AD3d at 759; see SOS Capital, 220 AD3d at 33). "When opposing a motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground of lack of jurisdiction, a plaintiff 'need only make a prima facie showing' that personal jurisdiction over the moving defendant exists" (Fanelli, 202 AD3d 758, 759 [2d Dept 2022], quoting Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243 [2d Dept 2005]; see Aybar, 211 AD3d at 49). "The facts alleged in the complaint and affidavits in opposition to such a motion to dismiss are deemed true and construed in the light most favorable to the plaintiff, and all doubts are to be resolved in favor of the plaintiff" (Fanelli, 202 AD3d at 759, quoting Nick v Schneider, 150 AD3d 1250, 1251 [2d Dept 2017] [internal quotations omitted]).

In support of the motion arguing the lack of personal jurisdiction, defendant submitted, inter alia, an affidavit from Scott Spiers, the litigation manager of defendant, which states:

8. On June 1, 2021, Safe Auto Insurance Company agreed to be acquired by The Allstate Corporation through Allstate subsidiary National General Insurance (hereinafter "the acquisition").

9. I am familiar with claim number [XXXXX]-354-926 related to Policy Number [XXXXXXXX]99A-00.

10. Policy Number [XXXXXXXX]99A-00 was issued to Donte Sinclair in the State of Pennsylvania through Safe Auto Insurance Company with a relevant policy period of August 5, 2019 to February 5, 2020.

11. Claim number [XXXXX]-354-926 related to Policy Number [XXXXXXXX]99A-00, was submitted to Safe Auto Insurance Company prior to its acquisition by The Allstate Corporation.

12. Prior to the acquisition, Safe Auto Insurance Company was not an "authorized insurer" and did not hold a Certificate of Authority to transact insurance in the State of New York.

13. Prior to the acquisition, Safe Auto Insurance Company did not have any insurance agents appointed to act on its behalf in the State of New York.

14. Prior to the acquisition, Safe Auto Insurance Company did not target the State of New York with advertisements.

15. Prior to the acquisition, Safe Auto Insurance Company did not own any real property in the State of New York.

16. Prior to the acquisition, Safe Auto Insurance Company had not filed a statement with the Superintendent of Insurance agreeing that its automobile insurance policies sold in any other state or Canadian province will be deemed to satisfy the financial security requirements of Article VI or VIII of the New York Vehicle and Traffic Law.

17. Prior to the acquisition, Safe Auto Insurance Company did not underwrite insurance policies in the State of New York and did not issue insurance policies in the State of New York.

18. Prior to the acquisition, Safe Auto Insurance Company did not adhere to the New York State No-Fault guidelines.

19. Prior to the acquisition, Safe Auto Insurance Company did not control any insurers authorized to transact or transacting business in the State of New York, was not controlled by any insurers authorized to transact or transacting business in the State of New York and was not under common control by or with any insurers authorized to transact or transacting business in the State of New York.

20. Further, Safe Auto Insurance Company was not an "authorized insurer" in the State of New York at the time claim number [XXXXX]-354-926 related to Policy Number [XXXXXXXX]99A-00 was submitted (NYSCEF Doc No 5 [policy numbers redacted]).

In light of above, the Court finds that defendant demonstrated that it did not engage in any transaction to conduct business or supply services or insurance coverage in New York and the Court lacks personal jurisdiction over it (see, e.g., Flatlands Med., P.C. v AAA Ins., 43 Misc 3d 49, 51 [App Term, 2d 11th & 13th Jud Dists 2014]; Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co., 65 Misc 3d 143[A], 2019 NY Slip Op 51736[U], *1—2 [App Term, 2d 11th & 13th Jud Dists 2019]; see also Lancaster v Colonial Motor Frgt. Line, Inc., 177 AD2d 152, 157-59 [1st Dept 1992] [where a vehicle accident occurred in South Carolina and the "accident is not alleged to be, nor can it in any way be said to be, related to any possible business contacts or transactions which defendant corporation may have been engaged in at that time in the State of New York"]; Johnson, 4 NY3d at 520 ["Plaintiffs' cause of action arose out of defendant's allegedly negligent driving in New Jersey, not from the issuance of a New York driver's license or vehicle registration"]; Fanelli, 202 AD3d at 758-61; Matter of Eagle Ins. Co. v Gutierrez-Guzman, 21 AD3d 489, 491 [2d Dept 2005] ["Contrary to Eagle's contention, the mere unilateral act of Young, AIIC's alleged insured, in driving into New York State, without more, was insufficient to permit the court to exercise long-arm jurisdiction over AIIC under the CPLR"]).

Plaintiff's arguments in opposition that rely on Clarke are misplaced. The trial court in Clarke acknowledged that it may be possible for an out-of-state insurer to provide New York mandated insurance if it had filed a certificate regarding proof of financial responsibility under VTL § 344 (a) or perhaps if a court were to interpret policy language in such a way that "would make it fair and equitable to deem the insurer to be in compliance and conformity with New York law" (Property & Cas. Ins. Co. of Hartford v Clarke, 7 Misc 3d 358, 361 [Sup Ct, Kings County 2005]). However, such policy language was lacking in Clarke and in this case, plaintiff, without any first-hand knowledge whatsoever, speculates and surmises that defendant's policy has some other specific language that would bring defendant within the jurisdiction of the state (see NYSCEF Doc No 11 at ¶¶ 55, 63). The Court finds such speculation as insufficient to meet its burden to prove general or specific jurisdiction, and failed to at least make a "sufficient start" to show that the alleged personal jurisdiction over defendant could exist and is not a "frivolous" "position" (cf. Peterson v Spartan Indus., Inc., 33 NY2d 463, 467 [1974]; Stardust Dance Prods., Ltd. v Cruise Groups Intl., Inc., 63 AD3d 1262, 1265 [3d Dept 2009] [where conflicting affidavits warranted discovery under CPLR 3211 [d] and/or a hearing on personal jurisdiction]). While plaintiff argues that defendant failed to submit all sorts of evidence (see NYSCEF Doc No 11 at ¶ 70), or that the Court needs to determine whether defendant is under the control of an authorized insurer (id. at ¶ 81), this is insufficient to meet its burden in opposing defendant's motion. Plaintiff's unsubstantiated and speculative allegations are insufficient (see, e.g., Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co., 2019 NY Slip Op 51736[U], *2 ["neither the unverified complaint nor the conclusory affirmation of plaintiff's counsel in opposition to defendant's motion constituted the 'tangible evidence' necessary to substantiate plaintiff's allegations that jurisdiction could exist, thereby demonstrating that plaintiff's assertion of the existence of a jurisdictional predicate was not 'frivolous' " [citations omitted]; Metro Health Products, Inc. v Maryland Auto Ins. Fund, 66 Misc 3d 146[A], 2020 NY Slip Op 50229[U], *2 [App Term 2d 11th & 13th Jud Dists 2020] [plaintiff failed to meet burden contesting personal jurisdiction where "[p]laintiff's opposition papers consisted only of the affidavit of its owner attesting to the mailing policies and procedures of plaintiff, and the affirmation of its counsel, who had no personal knowledge of the underlying facts. Plaintiff failed to produce evidence showing a jurisdictional basis for the service"]).

In light of the above, the Court need not address the parties' remaining arguments.

Accordingly, it is hereby ORDERED that defendant's motion is granted (motion sequence no. 001) and the Clerk is directed to enter judgment in defendant's favor dismissing the complaint; and it is further

ORDERED that the judgment entered July 15, 2022 is vacated as null and void (see supra, note 1); and it is further

ORDERED that plaintiff's motion for default judgment (motion sequence no. 002) and cross-motion (motion sequence no. 003) are denied as moot; and it is further

ORDERED that the Clerk is directed to amend the caption in the court's records to reflect the proper assignor name as Donte Sinclair in the place and stead of Rosa Rios.

This constitutes the decision and order of the Court.

DATE June 29, 2026

ENTER:

RENA MALIK

Judge of the Civil Court

FOOTNOTES

1.   It appears that plaintiff had previously applied for default judgment that was granted and entered on July 15, 2022. However the judgment erroneously states a different assignor's name, which appears to be a clerical error. The Court finds that any motion to amend it (e.g., under CPLR 5019[a]) would be futile given the dismissal of the action as set forth below and improper because the judgment is a nullity (Matter of Government Empls. Ins. Co. v Basedow, 28 AD3d 766, 767 [2d Dept 2006] ["Any default judgment or order against a party over which the court lacks jurisdiction is a nullity"]).

Rena Malik, J.