CHARLES DENG ACUPUNCTURE v. AMERICAN INDEPENDENT INS CO (2022)

Supreme Court, Appellate Term, New York,

CHARLES DENG ACUPUNCTURE, P.C., as Assignee of Destin, Woldine, Respondent, v. AMERICAN INDEPENDENT INS. CO., Appellant.

2019-1537 K C

Decided: June 03, 2022

PRESENT: THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ.

Freiberg, Peck & Kang, LLP (Yilo J. Kang of counsel), for appellant. The Rybak Firm, PLLC (Oleg Rybak of counsel), for respondent (no brief filed).

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion to dismiss the complaint 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. Defendant moved to dismiss the complaint on the ground, among others, that plaintiff had failed to obtain personal jurisdiction over it. Plaintiff cross-moved for summary judgment. Defendant appeals from so much of the order of the Civil Court as denied defendant's motion seeking dismissal of the complaint.

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 defendant's motion to dismiss the complaint is granted.

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

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