LONGEVITY MEDICAL SUPPLY INC v. AMERICAN INDEPENDENT INS CO (2021)

Supreme Court, Appellate Term, New York,

LONGEVITY MEDICAL SUPPLY, INC., as Assignee of Pagan, Stephanie, Respondent, v. AMERICAN INDEPENDENT INS. CO., American Independent Insurance Companies, Inc. and Good2Go Auto Insurance, Defendants, and Omni Indemnity Company, Appellant.

2018-2008 K C

Decided: December 10, 2021

PRESENT: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendants’ motion seeking to dismiss so much of the complaint as was asserted against defendant Omni Indemnity Company is granted.

In this action by a provider to recover assigned first-party no-fault benefits, the affidavit of service alleges that the summons and complaint were served by mail pursuant to CPLR 312-a. However, plaintiff's papers do not contain an acknowledgment of service. Defendants moved to dismiss the complaint on the ground that plaintiff had failed to obtain personal jurisdiction over them. Plaintiff cross-moved for summary judgment. Defendant Omni Indemnity Company appeals from so much of an order of the Civil Court entered September 18, 2018 as denied the branch of the motion seeking to dismiss the complaint insofar as asserted against it.

For the reasons stated in Longevity Med. Supply, Inc. v American Ind. Ins. Co. (69 Misc 3d 127[A], 2020 NY Slip Op 51118[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), the order, insofar as appealed from, is reversed, and the branch of the motion seeking to dismiss so much of the complaint as was asserted against defendant Omni Indemnity Company is granted.

ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur.

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