| Lettieri v Cushing |
| 2011 NY Slip Op 00194 [80 AD3d 574] |
| January 11, 2011 |
| Appellate Division, Second Department |
| Brittany Lettieri, Respondent, v Gloria Cushing, Defendant, andWal-Mart Stores, Inc., Doing Business as Sam's Club, et al., Appellants. |
—[*1] Keegan & Keegan Ross & Rosner, LLP, Patchogue, N.Y. (Jamie G. Rosner of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Wal-Mart Stores, Inc., doingbusiness as Sam's Club, and Jumpking, Inc., appeal, as limited by their brief, from so much of an orderof the Supreme Court, Suffolk County (Rebolini, J.), dated September 24, 2009, as denied thosebranches of their motion which were, in effect, pursuant to CPLR 3211 (a) (5) and (8) to dismiss thecomplaint insofar as asserted against the defendant Jumpking, Inc., and denied, as premature, withoutprejudice to renewal, that branch of their motion which was for summary judgment dismissing thecomplaint insofar as asserted against the defendant Wal-Mart Stores, Inc., doing business as Sam'sClub.
Ordered that the order is modified, on the law, by adding to the provision denying that branch ofthe defendants' motion which was, in effect, pursuant to CPLR 3211 (a) (8) to dismiss the complaintinsofar as asserted against the defendant Jumpking, Inc., a further provision that the denial is withoutprejudice to renewal upon the completion of discovery on the issue of whether personal jurisdictionmay be established over that defendant; as so modified, the order is affirmed insofar as appealed from,without costs or disbursements.
As the party seeking to assert personal jurisdiction, the plaintiff bears the burden of proof on thisissue (see Castillo v Star Leasing Co., 69AD3d 551 [2010]; Shore Pharm.Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d 623, 624 [2009]; Brinkmann v Adrian Carriers, Inc., 29AD3d 615, 616 [2006]; Ying Jun Chenv Lei Shi, 19 AD3d 407 [2005]). However, "in opposing a motion to dismiss pursuant toCPLR 3211 (a) (8) on the ground that discovery on the issue of personal jurisdiction is necessary,plaintiffs need not make a prima facie showing of jurisdiction, but instead must only set forth, 'asufficient start, and show[ ] their position not to be frivolous' " (Shore Pharm. Providers, Inc. vOakwood Care Ctr., Inc., 65 AD3d at 624, quoting Peterson v Spartan Indus., 33 NY2d463, 467 [1974]). "[T]he plaintiffs need only demonstrate that facts 'may exist' to exercise personaljurisdiction over the defendant" (Ying Jun Chen v Lei Shi, 19 AD3d at 408, quotingPeterson v Spartan Indus., 33 NY2d at 467; see Castillo v Star Leasing Co., 69 AD3d 551 [2010]).[*2]
Here, in opposition to the defendants' motion to dismiss, theplaintiff established that facts "may exist" to exercise personal jurisdiction over the defendant Jumpking,Inc. (hereinafter Jumpking), and made a "sufficient start" to warrant further disclosure on the issue ofwhether personal jurisdiction may be established over that defendant (Peterson v SpartanIndus., 33 NY2d at 467; see Castillo v Star Leasing Co., 69 AD3d at 552). Thus, theSupreme Court properly denied that branch of the defendants' motion which was, in effect, pursuant toCPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against Jumpking. However, theSupreme Court should have denied that branch of the defendants' motion without prejudice to renewalupon the completion of discovery on the issue of whether personal jurisdiction may be established overJumpking (see Peterson v Spartan Indus., 33 NY2d at 467; Castillo v Star LeasingCo., 69 AD3d at 552).
In addition, CPLR 3212 (f) permits a party opposing a motion for summary judgment to obtainfurther discovery when it appears that facts supporting the position of the opposing party exist butcannot be stated (see Botros v Flamm,77 AD3d 602 [2010]; Family-FriendlyMedia, Inc. v Recorder Tel. Network, 74 AD3d 738 [2010]; Aurora Loan Servs., LLC v LaMattina &Assoc., Inc., 59 AD3d 578 [2009]). Under the circumstances presented here, the SupremeCourt properly denied, as premature, with leave to renew upon the completion of disclosure, thatbranch of the defendants' motion which was for summary judgment dismissing the complaint insofar asasserted against the defendant Wal-Mart Stores, Inc., doing business as Sam's Club.
The defendants' remaining contentions are without merit. Mastro, J.P., Florio, Leventhal and Sgroi,JJ., concur.