| Executive Life Ltd. v Silverman |
| 2009 NY Slip Op 08994 [68 AD3d 715] |
| December 1, 2009 |
| Appellate Division, Second Department |
| Executive Life Ltd., Doing Business as Executive Alliance,Appellant, v David Silverman, Doing Business as Silverman Law Firm,Respondent. |
—[*1] Michael W. Rosen, New York, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, aslimited by its brief, from so much of an order of the Supreme Court, Suffolk County (Weber, J.),dated January 5, 2009, as granted that branch of the defendant's motion which was pursuant toCPLR 3211 (a) (8) to dismiss the complaint for lack of personal jurisdiction.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, Executive Life Ltd., doing business as Executive Alliance (hereinafterExecutive), a New York based executive search agency, allegedly contracted with the defendant,a Colorado based collections attorney, to refer candidates for open paralegal and attorneypositions in the defendant's law firm. The agreement between the parties provided that Executivewould be entitled to a commission if it referred a person whom the defendant hired, and theperson remained employed by the defendant for 60 consecutive days. The defendant was neverphysically present in New York, and the agreement between the parties was negotiated bytelephone and e-mail. Executive faxed the agreement, which provided that it would be governedby New York law, to the defendant, who executed it and returned it by fax. According to thecomplaint, Executive referred a candidate whom the defendant hired for the paralegal positionand that person remained employed by the defendant for at least 60 consecutive days.Nevertheless, the defendant allegedly failed to pay the commission due. Executive commencedthis action against the defendant in the Supreme Court, Suffolk County. The Supreme Courtgranted the defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) for lackof personal jurisdiction (see CPLR 302 [a] [1]). We affirm.
Under New York's long-arm statute, "a court may exercise personal jurisdiction over anynon-domiciliary . . . who . . . transacts any business within the state"(CPLR 302 [a]), regardless of whether that nondomiciliary has actually set foot in New YorkState (see Fischbarg v Doucet, 9NY3d 375, 380 [2007]; Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988];Parke-Bernet Galleries v Franklyn, 26 NY2d 13, 17 [1970]; Bogal v Finger, 59 AD3d 653[2009]). Whether a defendant has transacted business within New York is determined under thetotality of the circumstances, and rests on whether the defendant, by some act or acts, has"purposefully avail[ed] itself of the privilege of conducting activities within [New York]" (Ehrenfeld v Bin Mahfouz, 9 NY3d501, 508 [2007]). "Purposeful activities are those with which a defendant, through volitionalacts, 'avails itself of the [*2]privileges of conducting activitieswithin the forum State, thus invoking the benefits and protections of its laws' " (Fischbarg vDoucet, 9 NY3d at 380, quoting McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d377, 382 [1967]). The long-arm statute is a "single-act" statute (Deutsche Bank Sec., Inc. v Montana Bd. ofInvs., 7 NY3d 65, 71 [2006], cert denied 549 US 1095 [2006]; see GeorgeReiner & Co. v Schwartz, 41 NY2d 648, 651-652 [1977]) and, thus, evidence of even onesuch transaction is sufficient to confer jurisdiction over a nondomiciliary defendant, providedthat the defendant's activities were purposeful and "there is a substantial relationship between thetransaction and the claim asserted" (Kreutter v McFadden Oil Corp., 71 NY2d at 467; see Stardust Dance Prods., Ltd. v CruiseGroups Intl., Inc., 63 AD3d 1262, 1264 [2009]). "[I]t is the quality of the defendants'New York contacts that is the primary consideration" (Fischbarg v Doucet, 9 NY3d at380).
The Supreme Court properly dismissed the complaint. Although negotiations may havetaken place by telephone, fax, and e-mail, and the defendant allegedly faxed the agreement toExecutive's office in New York, the defendant's actions did not amount to a purposefulinvocation of the privileges of conducting business in New York. We note that the defendant didnot specify that any applicant was to come from New York, and, indeed, the person he hired wasalready based in Colorado (see KimcoExch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433, 434 [2006]; ProfessionalPersonnel Mgt. Corp. v Southwest Med. Assoc., 216 AD2d 958 [1995]; Milliken vHolst, 205 AD2d 508, 509-510 [1994]; cf. Corporate Campaign v Local 7837, UnitedPaperworkers Intl. Union, 265 AD2d 274, 275-276 [1999]). The choice of law provision inthe agreement, while relevant, is insufficient by itself to confer personal jurisdiction over thedefendant in New York under CPLR 302 (a) (1) (see Goulds Pumps v Mazander EngineeredEquip. Co., 217 AD2d 960, 961 [1995]; Peter Lisec Glastechnische Industrie GmbH vLenhardt Maschinenbau GmbH, 173 AD2d 70, 72 [1991]). Fisher, J.P., Covello, Santucciand Balkin, JJ., concur.