| Tucker v Sanders |
| 2010 NY Slip Op 05907 [75 AD3d 1096] |
| July 2, 2010 |
| Appellate Division, Fourth Department |
| Audrey A. Tucker, Respondent, v Roy S. Sanders et al.,Appellants, et al., Defendant. |
—[*1] Bond, Schoeneck & King, PLLC, Syracuse (Stephanie Campbell of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.),entered February 10, 2009. The order denied the motion of defendants Roy S. Sanders andSanders Investors, Inc. to dismiss the complaint against them.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages resulting from defendants'alleged fraud, deceptive business practices, and breach of fiduciary duty and covenant of goodfaith with respect to a real estate investment made by plaintiff in Florida. Roy S. Sanders andSanders Investors, Inc. (collectively, defendants) moved to dismiss the complaint on the groundthat Supreme Court lacked personal jurisdiction over them. In a supporting affidavit, Sandersstated that he and his corporation are domiciled in Florida and that neither he nor his corporationconduct business in New York. Plaintiff in opposition contended that defendants are subject topersonal jurisdiction inasmuch as they and their coconspirator, defendant John C. Kanaley,transmitted fraudulent statements to plaintiff in New York and committed acts in furtherance ofthe fraud. We conclude that the court properly denied the motion.
In order to defeat a motion to dismiss based upon lack of personal jurisdiction, a plaintiff"need only demonstrate that facts 'may exist' to exercise personal jurisdiction over thedefendant[s]" (Ying Jun Chen v LeiShi, 19 AD3d 407, 408 [2005], quoting Peterson v Spartan Indus., 33 NY2d463, 467 [1974]). Under New York's long-arm statute, "a court may exercise personaljurisdiction over any non-domiciliary . . . who in person or through an agent. . . commits a tortious act within the state," with one exception not relevant here(CPLR 302 [a] [2]). Here, it is undisputed that plaintiff and Sanders met at a hotel in Syracuse todiscuss investment opportunities, although the parties do not agree with respect to the extent ofthat conversation. According to the evidence submitted by plaintiff in opposition to the motion,during the meeting Sanders told her about a specific real estate investment opportunity known as"Key Marco" in [*2]Florida and showed her a booklet concerningthe Key Marco property. In addition, Sanders told her that he had "control" over several of thevacant lots, indicated that Key Marco was "a phenomenal business opportunity," and assuredplaintiff that he was "fully devoted to this Key Marco project." After the meeting, Sanders sente-mail and mail correspondence to plaintiff's address in New York that, according to plaintiff,contained material misrepresentations in furtherance of the alleged fraud. Thus, accepting thefacts as alleged in the complaint as true and according plaintiff the benefit of every possiblefavorable inference, as we must on a motion to dismiss (see Leon v Martinez, 84 NY2d83, 87-88 [1994]), we conclude that plaintiff has set forth sufficient facts to render defendantssubject to the court's jurisdiction based on their allegedly tortious conduct in New York (seeCPLR 302 [a] [2]; CPC Intl. v McKesson Corp., 70 NY2d 268, 286-287 [1987];Bernstein v Kelso & Co., 231 AD2d 314, 325 [1997]; Philan Ins. v Hall & Co., 215AD2d 112 [1995]).
We further conclude in any event that plaintiff sufficiently pleaded that Kanaley, a NewYork resident, acted as defendants' agent with respect to the real estate investment at issue(see CPLR 302 [a] [2]), and thus that the motion was properly denied on that ground aswell. Kanaley arranged the meeting between Sanders and plaintiff and ultimately receivedcompensation from Sanders. Moreover, Kanaley relayed numerous messages to plaintiff onbehalf of Sanders concerning the Key Marco property. We thus conclude that plaintiff has setforth sufficient facts from which to conclude that Kanaley "engaged in purposeful activities inthis State in relation to his transaction for the benefit of and with the knowledge and consent ofthe . . . defendants and that they exercised some control over [Kanaley] in thismatter" (Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]; see PhilanIns., 215 AD2d at 112). Present—Centra, J.P., Peradotto, Carni, Lindley and Pine, JJ.