Opinion
CV-721805-19/KI
09-16-2020
EAST 19 MEDICAL SUPPLY CORP., Assignee of Alona Migunenko, Plaintiff, v. METROPOLITAN GRP PROP & CAS INS. CO., Defendant.
David Lanser, Esq, Kopelevich and Feldsherova PC, 241 37th St Suite B439, Brooklyn, NY 11232, (718) 332-0577 Frank Gissano, Esq., Bruno, Gerbino, Soriano & Aitken, LLP, 445 Broadhollow Rd Ste. 420, Melville, NY 11747, (631) 390-0010
David Lanser, Esq, Kopelevich and Feldsherova PC, 241 37th St Suite B439, Brooklyn, NY 11232, (718) 332-0577
Frank Gissano, Esq., Bruno, Gerbino, Soriano & Aitken, LLP, 445 Broadhollow Rd Ste. 420, Melville, NY 11747, (631) 390-0010
Jill R. Epstein, J.
Recitation, as required by CPLR § 3211 (a)(2), of the papers considered in the review of this motion to Dismiss submitted September 3, 2020
Papers Numbered
Notice of Motion and Affirmations/Affidavits Annexed 1
Affidavits/Affirmations in Opposition 2
Reply 3
Upon the foregoing cited papers, and oral argument, the Decision/Order on the Defendant's Motion to Dismiss
Defendant, Metropolitan GRP PROP & Cas Ins. Co., (hereinafter "Defendant"), moves by Notice of Motion dated June 5, 2019, for an Order pursuant to CPLR § 3211 (a)(2), granting a Motion to Dismiss the Complaint forming the basis of this action for lack of subject matter jurisdiction.
This matter involves a claim for assigned first-party no fault benefits, which resulted from East 19 Medical Supply Corp. (hereinafter "Plaintiff" or "Assignee") providing medical treatment to Assignor, Alona Migunenko (hereinafter "Assignor"), following a motor vehicle accident, which occurred on January 18, 2017. At the time of the accident, the assignor's vehicle's insurance policy was issued in New Jersey. However, the vehicle was registered in New York. The parties conceded that assignor attempted to register the vehicle in New Jersey and was unable to do so. At the time of the accident, the assignor had moved to New Jersey to live with her new husband. The accident occurred at 936 East 29th Street in Brooklyn, New York.
At oral argument, counsel for defendant, Frank Gissano, Esq., of Bruno, Gerbino, and Soriano LLP, argued that under the "grouping of contacts" theory, New Jersey insurance law should apply in this case and the matter sent to mandatory arbitration. Grouping of contacts theory is a principle of conflict of laws that in cases of choice of law questions, the law of the jurisdiction with the most significant relationship to the transaction or event applies. The New York Court of Appeals has held that the "center of gravity" or "grouping of contacts" analysis is to be applied in choice of law situations. In re Stolarz , 81 NY2d 219, 226 [1991]. Grouping of contacts allows the Court to consider a "spectrum of significant contact." Stolarz , 81 NY2d at 226. These factors include "the place of contracting, negotiations and performance; the location of the subject matter of the contract; and the domicile of the contracting parties." Id at 227. In Stolarz , the most significant contact was that hospital services were provided in New York and the billing hospital was located in New York. Id. In this instance, the assignor's insurance contract is a New Jersey policy; the assignor lives in New Jersey; the assignor attempted to register the car in New Jersey; and the policy was issued in New Jersey. However, the accident, medical provider, and automobile registration were all in New York. The defendant argued that these factors, under the grouping of contacts theory, require New Jersey law to apply. Defendant also asserted that the New York Civil Court does not have subject matter jurisdiction over this claim if New Jersey law is applied in this case. Counsel for plaintiff, David Lanser Esq., of Kopelevich and Feldsherova PC, argued that pursuant to New York Consolidated Law of Service Insurance Law § 5107 :
Every insurer authorized to transact or transacting business in this state, or controlling or controlled by or under common control by or with such an insurer, which sells a policy providing motor vehicle liability insurance coverage or any similar coverage in any state or Canadian province, shall include in each such policy coverage to satisfy the financial security requirements of article six or eight of the vehicle and traffic law and to provide for the payment of first party benefits pursuant to subsection (a) of section five thousand one hundred three of this article when a motor vehicle covered by such policy is used or operated in this state (NY CLS Ins § 5107 )
In the matter sub judice the accident occurred in New York. The statute clearly states that the application of New York no fault law is required. Insofar as "grouping of contacts" theory, as stated previously, the accident occurred in New York, the vehicle was registered in New York, and the medical provider is located in New York. Pursuant to NY CLS Ins § 5107, every insurer transacting business in New York is required to provide minimum first party benefits for any vehicle operated or used in New York. The statute further requires any policy covering such a vehicle to be construed as embodying this coverage even in the absence of an express provision. NY CLS Ins § 5107. Thus, the legislature anticipated exactly this type of circumstance: where an out-of-state resident is involved in an accident in New York. It seems unreasonable for defendant to skirt that requirement by inserting a non-negotiable boilerplate clause to its policy. Moreover, defendant conflates subject matter jurisdiction with the choice of law issue. Even if it were appropriate to apply New Jersey law, this Court would certainly be permitted to apply New Jersey law if necessary.
Pursuant to CPLR § 3211 (a)(2), "a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the court has not jurisdiction of the subject matter of the cause of action." See CPLR § 3211 (a)(2). "The Civil Court is a court of limited jurisdiction, possessing only that subject matter jurisdiction provided by law." O'Neil v. City of New York, 10 Misc 3d 30 (App Term, 2nd Dept 2005). "The court shall have jurisdiction of actions and proceedings for the recovery of money...where the amount sought to be recovered or the value of the property does not exceed $25,000." Civil Court Act § 202.
Pursuant to New York Consolidated Law of Service Insurance Law § 5107, minimum first party benefits for any vehicle operated and used in New York must be provided. See NY CLS Ins § 5107. In the matter sub judice , the assignor's car was in an accident in New York, the car was registered in New York and the medical provider located in New York. Therefore, the Court finds that New York Consolidated Law of Service Insurance Law § 5107 is applicable in this case. The assignor's New Jersey insurance policy cannot supersede New York Insurance law, and if New York legislators intended for there to be exceptions for vehicles involved in accidents in New York with policies from other states, the legislature would have provided for those exceptions.
Thus, there is no basis for dismissal or for application of New Jersey law. New York Insurance Law controls in this instant case. Defendant's motion to dismiss for lack of subject matter jurisdiction must be denied.
WHEREFORE it is hereby
ORDERED AND ADJUDGED that defendant's motion to dismiss for lack of subject matter jurisdiction pursuant to CPLR § 3211 (a)(2) is denied in all respects.