| Castillo v Star Leasing Co. |
| 2010 NY Slip Op 00090 [69 AD3d 551] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Guillermo Castillo, Appellant, v Star Leasing Company,Respondent, et al., Defendants. |
—[*1] Herzfeld & Rubin, P.C., New York, N.Y. (Joseph E. Donat, David B. Hamm, and MiriamSkolnik of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Queens County (Agate, J.), enteredDecember 1, 2008, as granted that branch of the motion of the defendant Star Leasing Companywhich was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against itfor lack of personal jurisdiction.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the motion of the defendant Star Leasing Company which was pursuant to CPLR 3211(a) (8) to dismiss the complaint insofar as asserted against it for lack of personal jurisdiction isdenied, without prejudice to renewal upon the completion of discovery on the issue of whetherpersonal jurisdiction may be established over that defendant, so much of the order as, in effect,denied, as academic, that branch of the motion of the defendant Star Leasing Company whichwas to dismiss the complaint insofar as asserted against it on the ground of improper service ofprocess, is vacated, and the matter is remitted to the Supreme Court, Queens County, for adetermination on the merits of that branch of the motion.
As the party seeking to assert personal jurisdiction, the plaintiff bears the burden of proof onthis issue (see Shore Pharm. Providers,Inc. v Oakwood Care Ctr., Inc., 65 AD3d 623, 624 [2009]; Brinkmann v Adrian Carriers, Inc., 29AD3d 615, 616 [2006]; Ying JunChen v Lei Shi, 19 AD3d 407 [2005]). However, "in opposing a motion to dismisspursuant to CPLR 3211 (a) (8) on the ground that discovery on the issue of personal jurisdictionis necessary, plaintiffs need not make a prima facie showing of jurisdiction, but instead mustonly set forth 'a sufficient start, and show[ ] their position not to be frivolous' " (Shore Pharm.Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d at 624, quoting Peterson v SpartanIndus., 33 NY2d 463, 467 [1974]). "[T]he plaintiffs need only demonstrate that facts 'mayexist' to exercise personal jurisdiction over the defendant" (Ying Jun Chen v Lei Shi, 19AD3d at 408, quoting Peterson v Spartan Indus., 33 NY2d at 467; see Brinkmann vAdrian Carriers, 29 AD3d at 616).
Here, the plaintiff established that facts "may exist" to exercise personal jurisdiction [*2]over the defendant Star Leasing Company (hereinafter StarLeasing), and made a "sufficient start" to warrant further disclosure on the issue of whetherpersonal jurisdiction may be established over Star Leasing (Peterson v Spartan Indus., 33NY2d at 467). Indeed, the subject lease shows that it was entered into between Star Leasing anda customer listed as having a New York address. Accordingly, the Supreme Court should havedenied that branch of Star Leasing's motion which was pursuant to CPLR 3211 (a) (8) to dismissthe complaint insofar as asserted against it for lack of personal jurisdiction, without prejudice torenewal upon the completion of discovery on the issue of whether personal jurisdiction may beestablished over Star Leasing.
The plaintiff's contention regarding Vehicle and Traffic Law § 388 is improperlyraised for the first time on appeal.
Since the Supreme Court did not consider the merits of that branch of Star Leasing's motionwhich was to dismiss the complaint insofar as asserted against it on the ground of improperservice of process, we remit the matter to the Supreme Court, Queens County, for adetermination on the merits of that branch of the motion. Rivera, J.P., Miller, Dickerson andRoman, JJ., concur.