| Zottola v AGI Group, Inc. |
| 2009 NY Slip Op 05327 [63 AD3d 1052] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Craig Zottola, Appellant, v AGI Group, Inc., Respondent,et al., Defendant. |
—[*1] Della Cioppa & Bogosian, Carmel, N.Y. (Gary P. Bogosian of counsel), forrespondent.
In an action to recover damages for breach of contract, the plaintiff appeals from an order ofthe Supreme Court, Dutchess County (Sproat, J.), dated December 7, 2007, which granted themotion of the defendant AGI Group, Inc., pursuant to CPLR 3211 (a) (8) to dismiss thecomplaint insofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantAGI Group, Inc., to dismiss the complaint insofar as asserted against it is denied.
In November 2005, while seeking to buy a boat on the Internet, the plaintiff found a websiteshowing the boat he wanted. Ultimately, that Internet search provided a telephone number whichconnected him to a representative of the defendant AGI Group, Inc. (hereinafter AGI). It isundisputed that AGI is located in Florida and does not have a physical presence in New YorkState.
On or about November 18, 2005, the plaintiff ordered the boat over the telephone fromAGI's representative. He then transferred the sum of $15,000 to AGI's account at the Bank ofAmerica branch at 100 West 33rd Street in Manhattan, as payment for part of the cost of theboat. The boat was damaged on its way to New York. According to the plaintiff, the defendantBoss Boats, LLC, took responsibility for the damage and was supposed to deliver a different boatto him. When neither the boat was delivered nor his money refunded, the plaintiff commencedthis action on November 13, 2006.
After settlement negotiations broke down, AGI moved to dismiss the complaint insofar asasserted against it on the ground that the minimum contacts needed to exercise in personamjurisdiction over it were lacking. It alleged that it was a Florida corporation whose only presenceoutside Florida was by way of the Internet, and the only contacts with the plaintiff were by theInternet or telephone. AGI also alleged that its main business was in the field of items used inhome improvements. It further alleged that it "never sold any merchandise to any buyer in theState of New York" and it "had never been approached by a New York company or individualsince the inception of our company to obtain merchandise from our company either through ourstore or our web site." The president of AGI also averred that he believed that it had never donebusiness in New York State. This, AGI contended, was insufficient to provide the minimumcontacts required to permit New York to exercise in-personam jurisdiction over it. The Supreme[*2]Court granted the motion. We reverse.
Due process requires that to exercise jurisdiction over a nonresident defendant, thenonresident defendant must have "minimum contacts" such that maintenance of the action doesnot offend traditional notions of fair play and substantial justice (see e.g. International ShoeCo. v Washington, 326 US 310, 316 [1945]). Due process is not offended "[s]o long as aparty avails itself of the benefits of the forum, has sufficient minimum contacts with it, andshould reasonably expect to defend its actions there . . . even if not 'present' in thatState . . . New York's long-arm statute, CPLR 302, was enacted in response to[inter alia that decision]" (Kreutter v McFadden Oil Corp., 71 NY2d 460, 466-467[1988] [citations omitted]).
Under CPLR 302 (a) (1), the provision at issue here, "a court may exercise personaljurisdiction over any non-domiciliary, or his executor or administrator, who in person or throughan agent . . . transacts any business within the state or contracts anywhere to supplygoods or services in the state." CPLR 302 (a) (1) "is a 'single act statute' and proof of onetransaction in New York is sufficient to invoke jurisdiction, even though the defendant neverenters New York, so long as the defendant's activities here were purposeful and there is asubstantial relationship between the transaction and the claim asserted" (Kreutter vMcFadden Oil Corp., 71 NY2d at 467; see Deutsche Bank Sec., Inc. v Montana Bd. ofInvs., 7 NY3d 65, 71 [2006], cert denied 549 US 1095 [2006]). Thus, to avail itselfof this statute, a plaintiff must not only establish that the defendant purposefully transactedbusiness within the State of New York, but must also show a substantial relationship, which maypertain to a single act, between the transaction and the claim asserted (see Deutsche BankSec., Inc. v Montana Bd. of Invs., 7 NY3d at 71; Kruetter v McFadden Oil Corp., 71NY2d at 467).
To satisfy the "transacting business" requirement under CPLR 302 (a) (1), a nonresidentdefendant must purposefully avail itself of the privilege of conducting activities in New York,thus invoking the benefits and protections of New York law (see McGowan v Smith, 52NY2d 268, 271 [1981]). The totality of the nonresident defendant's activities within the forumstate is considered in order to determine whether its contacts satisfy the "transacting business"requirement (see Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443,457-458 [1965]).
In response to AGI's assertions that it lacked the minimum contacts, the plaintiff made aprima facie showing that there were sufficient minimum contacts to permit New York to exercisein personam jurisdiction over AGI. In his complaint, the plaintiff alleged first, that "[both of] thedefendants" (including AGI) agreed to deliver the boat in New York. Second, he provided proofthat the money for the purchase of the boat was paid to AGI by wire transfer to a New York bankbranch, not a Florida bank. Third, according to the "Manufacture's [sic] Statement ofOrigin," the boat in question was transferred on March 14, 2005, to AGI, and on December 2,2005, AGI transferred the "Statement of Origin and boat" to the plaintiff at his New Yorkaddress. This was sufficient to show that AGI accomplished this transaction in New York State,sufficiently availed itself of the benefits of doing business in this State, and had a substantialrelationship with this State such that due process would not be offended by subjecting it to thisState's jurisdiction, and that it thereby subjected itself to in personam jurisdiction under CPLR302 (a) (1). Thus, the motion by AGI pursuant to CPLR 3211 (a) (8) to dismiss the complaintinsofar as asserted against it should have been denied (see Bogal v Finger, 59 AD3d 653[2009]; Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243 [2005]; People vConcert Connection, 211 AD2d 310, 315 [1995]; cf. Farkas v Farkas, 36 AD3d 852[2007]; Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433 [2006]).
In light of our determination, we need not reach the plaintiff's remaining contention.Spolzino, J.P., Dillon, Florio and Angiolillo, JJ., concur.