| Transportation Ins. Co. v Simplicity, Inc. |
| 2009 NY Slip Op 03509 [61 AD3d 963] |
| April 28, 2009 |
| Appellate Division, Second Department |
| Transportation Insurance Company et al.,Appellants, v Simplicity, Inc., et al., Respondents, et al.,Defendants. |
—[*1] D'Amato & Lynch, LLP, New York, N.Y. (Alfred A. D'Agostino, Jr., and Megan M.Marchick of counsel), for respondent Preferred Services of NY, Ltd.
In an action, inter alia, for the rescission or reformation of certain contracts of insurance andto recover damages for breach of contract and negligent misrepresentation, the plaintiffs appeal,as limited by their brief, from so much of an order of the Supreme Court, Westchester County(Nastasi, J.), entered September 13, 2007, as granted the motion of the defendant Simplicity,Inc., pursuant to CPLR 3211 (a) (8) to dismiss the amended complaint insofar as asserted againstit for lack of personal jurisdiction and, sua sponte, directed the dismissal of the amendedcomplaint insofar as asserted against the defendant Preferred Services of NY, Ltd., pursuant toCPLR 3211 (a) (10) on the ground that the defendant Simplicity, Inc., is a necessary partywithout which the action cannot proceed.
Ordered that on the Court's own motion, the notice of appeal from so much of the order as,sua sponte, directed the dismissal of the amended complaint insofar as asserted against thedefendant Preferred Services of NY, Ltd., is deemed an application for leave to appeal from thatportion of the order and leave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costspayable by the respondents Simplicity, Inc., and Preferred Services of NY, Ltd., and the motionof the [*2]defendant Simplicity, Inc., pursuant to CPLR 3211 (a)(8) to dismiss the amended complaint insofar as asserted against it is denied.
Contrary to the determination of the Supreme Court, the defendant Simplicity, Inc.(hereinafter Simplicity), is amenable to jurisdiction in New York pursuant to CPLR 302 (a) (1).The record demonstrates that Simplicity, a Pennsylvania corporation, engaged in a 12-yearbusiness relationship with the defendant Preferred Services of NY, Ltd. (hereinafter Preferred), aNew York insurance broker, during which Simplicity transacted business within New York byengaging the services of Preferred to procure numerous insurance policies on its behalf and inaccordance with its specifications, including the specific policies which are at issue in thisaction. Moreover, Simplicity engaged in frequent communication by telephone, e-mail, and faxtransmissions with Preferred regarding the various policies. Under the circumstances of this case,Simplicity conducted sufficient purposeful activities in New York, which bore a substantialrelationship to the subject matter of this action, so as to avail itself of the benefits and protectionsof New York's laws and, thus, was amenable to suit here under New York's long-arm jurisdictionstatute (see Fischbarg v Doucet, 9NY3d 375 [2007]).
The Supreme Court's sua sponte determination directing the dismissal of the amendedcomplaint insofar as asserted against Preferred was premised upon the dismissal of the amendedcomplaint insofar as asserted against Simplicity. Accordingly, the denial of Simplicity's motionrenders improper so much of the order appealed from as, sua sponte, directed the dismissal of theamended complaint insofar as asserted against Preferred. Mastro, J.P., Skelos, Chambers andHall, JJ., concur.