Opinion
2012-10-24
Sharon WEINSTEIN, plaintiff, v. KMART CORPORATION, defendant third-party plaintiff-respondent; Island Snacks, Inc., third-party defendant, Sequoia Insurance Company, third-party defendant-appellant.
Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, and Merril S. Biscone of counsel), for third-party defendant-appellant. Simmons Jannace, LLP, Syosset, N.Y. (J. Daniel Velez of counsel), for defendant third-party plaintiff-respondent.
Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, and Merril S. Biscone of counsel), for third-party defendant-appellant. Simmons Jannace, LLP, Syosset, N.Y. (J. Daniel Velez of counsel), for defendant third-party plaintiff-respondent.
In an action to recover damages for personal injuries, the third-party defendant Sequoia Insurance Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated May 12, 2011, as denied that branch of its motion which was pursuant to CPLR 3211(a)(8) to dismiss the third-party complaint insofar as asserted against it on the ground of lack of personal jurisdiction.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly concluded that the third-party defendant Sequoia Insurance Company (hereinafter Sequoia) is subject to personal jurisdiction in New York. In support of its motion, inter alia, to dismiss the third-party complaint insofar as asserted against it pursuant to CPLR 3211(a)(8), Sequoia submitted the affidavit of one of its vice presidents, who acknowledged that the company became licensed to conduct insurance business in New York prior to the commencement of the third-party action. Sequoia additionally admitted that, as required by Insurance Law § 1212, it appointed the New York Superintendent of Insurance as its agent for service of process. Sequoia's authorization to do business in New York, and its statutorily required appointment of the Superintendent of Insurance as its agent for service of process “in any proceeding against it on a contract delivered or issued for delivery, or on a cause of action arising, in this state” (Insurance Law § 1212[a] ), constituted a consent to jurisdiction for claims within the scope of that appointment ( see Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S. 93, 95, 37 S.Ct. 344, 61 L.Ed. 610;STX Panocean [ UK ] Co., Ltd. v. Glory Wealth Shipping Pte Ltd., 560 F.3d 127, 131;The Rockefeller Univ. v. Ligand Pharmaceuticals, 581 F.Supp.2d 461, 466–467;Amalgamet, Inc. v. Ledoux & Co., 645 F.Supp. 248, 249;Augsbury Corp. v. Petrokey Corp., 97 A.D.2d 173, 175, 470 N.Y.S.2d 787;Comprehensive Mental Assessment & Med. Care v. Merchants & Businessmen's Mut. Ins. Co., 196 Misc.2d 134, 136–137, 762 N.Y.S.2d 794;Le Vine v. Isoserve, Inc., 70 Misc.2d 747, 749, 334 N.Y.S.2d 796;Robfogel Mill–Andrews Corp. v. Cupples Co., Mfrs., 67 Misc.2d 623, 624, 323 N.Y.S.2d 381;see also Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C301:6, at 21–24). The defendant third-party plaintiff's cause of action for a judgment declaring that Sequoia is obligated to defend and indemnify it in the main action pending in New York falls within the scope of the Superintendent of Insurance's appointment under Insurance Law § 1212 and, thus, Sequoia effectively consented to the exercise of personal jurisdiction over it ( cf. Muollo v. Crestwood Vil., 155 A.D.2d 420, 421, 547 N.Y.S.2d 87). Accordingly, the Supreme Court properly denied that branch of Sequoia's motion which was pursuant to CPLR 3211(a)(8) to dismiss the third-party complaint insofar as asserted against it on the ground of lack of personal jurisdiction.
In light of our determination, we need not reach Sequoia's remaining contentions.