Opinion
10806N Index 652260/15
01-16-2020
CHAO JIANG, Plaintiff-Respondent, v. PING AN INSURANCE, etc., et al., Defendants, Huatai Insurance Group of China, etc., et al., Defendants-Appellants.
Hinshaw & Culbertson LLP, New York (Concepcion A. Montoya of counsel), for appellants. Mandel Bhandari LLP, New York (Rishi Bhandari of counsel), for respondent.
Hinshaw & Culbertson LLP, New York (Concepcion A. Montoya of counsel), for appellants.
Mandel Bhandari LLP, New York (Rishi Bhandari of counsel), for respondent.
Friedman, J.P., Richter, Kern, Singh, JJ.
Order, Supreme Court, New York County (Andrea Masley, J.), entered December 7, 2018, which, to the extent appealed from as limited by the briefs, denied defendants' cross motion to dismiss the complaint as against them for lack of personal jurisdiction, granted plaintiff's motion to compel defendant Huatai Insurance Group of China (Huatai Group) to procure a license to do an insurance business in New York or to post a bond in the amount of $2.5 million pursuant to New York Insurance Law § 1213(c) before the remainder of the cross motion will be considered, held the remainder of the cross motion in abeyance pending compliance with New York Insurance Law § 1213, and held plaintiff's motion to compel defendants Huatai Insurance Company of China Limited (Huatai Limited) and Huatai Property and Casualty Insurance Company Limited (Huatai P & C) to comply with the requirements of Insurance Law 1213(c) in abeyance pending a hearing as to personal jurisdiction of and service on those parties, unanimously affirmed, with costs.
Huatai Group waived any objection to jurisdiction by appearing by notice of pro hac vice admission in this dispute, failing, twice, to file timely pre-answer motions to dismiss, and defending on the merits (see American Home Mtge. Servicing, Inc. v. Arklis, 150 A.D.3d 1180, 56 N.Y.S.3d 332 [2d Dept. 2017] ; see also U.S. Bank N.A. v. Pepe, 161 A.D.3d 811, 76 N.Y.S.3d 560 [2d Dept. 2018] ; Capital One Bank, N.A. v. Faracco, 149 A.D.3d 590, 50 N.Y.S.3d 285 [1st Dept. 2017] ). Pro hac vice admission is akin to an appearance (see Marina Dist. Dev. Co., LLC v. Toledano, 174 A.D.3d 431, 432–433, 105 N.Y.S.3d 83 [1st Dept. 2019], citing Arrowhead Capital Fin., Ltd. v. Cheyne Specialty Fin. Fund L.P., 32 N.Y.3d 645, 95 N.Y.S.3d 128, 119 N.E.3d 768 [2019] ). Even if, as defendants contend, granting pro hac vice admission is a ministerial act, Huatai Group waived any objection to jurisdiction by failing to timely challenge it in an answer or a pre-answer motion to dismiss in accordance with the CPLR, as well as by defending on the merits (see Rubino v. City of New York, 145 A.D.2d 285, 288, 538 N.Y.S.2d 547 [1st Dept. 1989] ; Braman v. Braman, 236 App.Div. 164, 167, 258 N.Y.S. 181 [1st Dept. 1932] ).
The court correctly ordered a traverse hearing as to Huatai Limited and Huatai P & C as to service of process and personal jurisdiction (see C. Mahendra (N.Y.), LLC v. National Gold & Diamond Ctr., Inc., 125 A.D.3d 454, 457, 3 N.Y.S.3d 27 [1st Dept. 2015] ; Armada Supply Inc. v. Wright, 858 F.2d 842, 849 [2d Cir.1988] ; Caronia v. American Reliable Ins. Co., 999 F. Supp. 299, 303 [E.D. N.Y.1998] ).
In addition to the above-cited jurisdictional requirement, Insurance Law § 1213(c) requires an "unauthorized foreign or alien insurer" to post a bond before filing "any pleading" in a proceeding against it. On this record the court appropriately imposed a bond requirement upon Huatai Group (see Levin v. Intercontinental Cas. Ins. Co., 95 N.Y.2d 523, 528, 719 N.Y.S.2d 634, 742 N.E.2d 109 [2000] ) and held in abeyance defendants' cross motion as to the insurance policy's choice of law and dispute resolution clauses pending Huatai Group's compliance with Insurance Law § 1213(c).