| Bogal v Finger |
| 2009 NY Slip Op 01435 [59 AD3d 653] |
| February 24, 2009 |
| Appellate Division, Second Department |
| Stanley Bogal et al., Appellants, v Kristin Finger,Respondent. Elaine Calix et al., Proposed Additional Defendants. |
—[*1] Louis Venezia, P.C., Forest Hills, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of fiduciary duty, the plaintiffs appeal,as limited by their notice of appeal and brief, from (1) so much of an order of the Supreme Court,Nassau County (Austin J.), dated October 2, 2007, as granted the defendant's motion pursuant toCPLR 3211 (a) (8) to dismiss the complaint for lack of personal jurisdiction and denied thatbranch of their cross motion which was for leave to serve an amended complaint adding a causeof action alleging unjust enrichment against the proposed additional defendants Elaine Calix andLuis Calix and (2) a judgment of the same court entered November 29, 2007, which, upon theorder, dismissed the complaint without prejudice to the commencement of an action against thedefendant in an appropriate venue, if the plaintiffs be so advised.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the defendant's motion to dismiss thecomplaint for lack of personal jurisdiction pursuant to CPLR 3211 (a) (8) is denied, that branchof the plaintiffs' cross motion which was for leave to serve an amended complaint adding a causeof action alleging unjust enrichment against the proposed additional defendants Elaine Calix andLuis Calix is granted, and the order is modified accordingly; and it is further,
Ordered that the plaintiffs are awarded one bill of costs.[*2]
The appeal from the intermediate order must bedismissed because the right of direct appeal therefrom terminated with the entry of a judgment(see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from theintermediate order are brought up for review and have been considered on the appeal from thejudgment (see CPLR 5501 [a] [1]).
It is undisputed that the defendant resides in Florida, never entered New York, and waspersonally served in Florida. It is also undisputed that any actions she personally undertook wereperformed in Florida. The plaintiffs sought to assert personal jurisdiction over the defendant inNew York, contending that she was the manager of shareholder services, and a manager of a webof entities (hereinafter the entities) which allegedly were used in a scheme to defraud them.
The defendant moved to dismiss the complaint. The Supreme Court, inter alia, found thatNew York could not properly exercise long-arm jurisdiction over the defendant, granted themotion to dismiss the complaint, and denied that branch of the plaintiffs' cross motion which wasfor leave to serve an amended complaint adding a cause of action alleging unjust enrichmentagainst the proposed additional defendants Elaine Calix and Luis Calix.
The defendant showed by affidavit, based upon her personal knowledge and documentaryevidence, that she was merely a secretary or executive assistant with no substantive decisionmaking authority in the entities and, thus, not amenable to personal jurisdiction in New York. Inresponse, the plaintiffs averred that the defendant was the manager of shareholder servicesand/or had for many years prepared their account statements, such that she should be subject tothe personal jurisdiction of the Supreme Court.
New York courts may exercise personal jurisdiction over a defendant who "transacts anybusiness within the state or contracts anywhere to supply goods or services in the state" (CPLR302 [a] [1]), even where that defendant has never physically entered the state (seeParke-Bernet Galleries v Franklyn, 26 NY2d 13, 17 [1970]), "so long as the defendant'sactivities here were purposeful and there is a substantial relationship between the transactionsand the claim asserted" (Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]).Here, the plaintiffs satisfied their burden, at this stage of the litigation, of showing that thisstandard has been met (see Fischbarg vDoucet, 9 NY3d 375 [2007]; Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65[2006]; Crystal Cove Seafood Corp. vChelsea Harbor, LLC, 47 AD3d 670 [2008]; Cornely v Dynamic HVAC Supply, LLC, 44 AD3d 986 [2007]).Moreover, exercising jurisdiction over the defendant in the circumstances presented here wouldnot be inconsistent with traditional notions of due process, fair play, and substantial justice(see International Shoe Co. v Washington, 326 US 310, 316 [1945]; LaMarca vPak-Mor Mfg. Co., 95 NY2d 210, 214-215 [2000]; Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 247-248[2005]).
The Supreme Court improvidently exercised its discretion in denying that branch of theplaintiffs' cross motion which was for leave to serve an amended complaint adding a cause ofaction alleging unjust enrichment against the proposed additional defendants. "[M]otions forleave to amend a pleading should be granted unless the proposed amendment is 'palpablyinsufficient or patently devoid of merit, or where the delay in seeking the amendment wouldcause prejudice or surprise' " (Commissioners of State Ins. Fund v Service Unlimited, USA, Inc., 50AD3d 1085 [2008], quoting Lucidov Mancuso, 49 AD3d 220, 222 [2008]; see Trataros Constr., Inc. v New York City School Constr. Auth., 46AD3d 874 [2007]; G.K. AlanAssoc., Inc. v Lazzari, 44 AD3d 95, 99 [2007]). The proposed amendment is sufficientunder this standard (see Chase Manhattan Bank [N.A.] v Banque Intra, S.A., 274 F Supp496, 499 [1967], citing Miller v Schloss, 218 NY 400, 408-409 [1916]; see also Stateof New York v Park, 204 AD2d [*3]531, 532-533 [1994];cf. State of New York v Barclays Bank of N.Y., 76 NY2d 533, 540-541 [1990]).Spolzino, J.P., Florio, McCarthy and Dickerson, JJ., concur. [See 17 Misc 3d 1107(A),2007 NY Slip Op 51863(U).]