| Marist Coll. v Brady |
| 2011 NY Slip Op 04638 [84 AD3d 1322] |
| May 31, 2011 |
| Appellate Division, Second Department |
| Marist College, Respondent, v Matthew Brady, Defendant,and Commonwealth of Virginia et al., Appellants. |
—[*1] Bleakley Platt & Schmidt, LLP, White Plains, N.Y. (John P. Hannigan and Justin M.Gardner of counsel), and Corbally, Gartland and Rappleyea, LLP, Poughkeepsie, N.Y. (Paul O.Sullivan of counsel), for respondent (one brief filed).
In an action, inter alia, to recover damages for tortious interference with contractual relationsand, in effect, inducement of breach of fiduciary duty, the defendants James Madison Universityand the Commonwealth of Virginia appeal, as limited by their brief, from so much of an order ofthe Supreme Court, Dutchess County (Wood, J.), dated June 30, 2010, as denied that branch oftheir application which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar asasserted against them for lack of personal jurisdiction.
Ordered that on the Court's own motion, the notice of appeal is deemed to be an applicationfor leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is modified, on the law, by adding to the first decretal paragraphthereof a provision stating that the denial of that branch of the application of the defendantsJames Madison University and the Commonwealth of Virginia which was pursuant to CPLR3211 (a) (8) to dismiss the complaint insofar as asserted against them for lack of personaljurisdiction is without prejudice to renewal upon the completion of discovery on the issue ofwhether personal jurisdiction may be established over those defendants; as so modified, the orderis affirmed insofar as appealed from, without costs or disbursements.
Under the circumstances, the Supreme Court properly exercised its discretion in deciding, onthe merits, that branch of the appellants' application which was pursuant to CPLR 3211 (a) (8) todismiss the complaint insofar as asserted against them for lack of personal jurisdiction (seeFugazy v Fugazy, 44 AD3d 613, 614 [2007]). As the party seeking to assert personaljurisdiction, the plaintiff bears the ultimate burden of proof on this issue (see AldenPersonnel, Inc. v David, 38 AD3d 697, 698 [2007]; Brandt v Toraby, 273 AD2d 429,430 [2000]). To successfully oppose a motion to dismiss pursuant to CPLR 3211 (a) (8) on theground that discovery on the issue of personal jurisdiction is necessary, the plaintiff did not needto make a prima facie showing of jurisdiction, but instead only needed to set forth "a sufficientstart, and [show its] position [*2]not to be frivolous"(Peterson v Spartan Indus., 33 NY2d 463, 467 [1974]; see Shore Pharm. Providers,Inc. v Oakwood Care Ctr., Inc., 65 AD3d 623, 624 [2009]; American BankNote Corp. vDaniele, 45 AD3d 338, 340 [2007]; Cordero v City of New York, 236 AD2d 577,578 [1997]).
Since the plaintiff established that facts " 'may exist' " to exercise personal jurisdiction overthe appellants and has made a "sufficient start" to warrant further discovery on that issue, theSupreme Court properly denied that branch of the appellants' application which was pursuant toCPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against them for lack of personaljurisdiction (Peterson v Spartan Indus., 33 NY2d at 467; see Shore Pharm. Providers,Inc. v Oakwood Care Ctr., Inc., 65 AD3d at 624; Castillo v Star Leasing Co., 69AD3d 551, 552 [2010]; cf. Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793, 794 [2008];Roldan v Dexter Folder Co., 178 AD2d 589, 589 [1991]). However, since the plaintifffailed to demonstrate, prima facie, that the appellants were subject to the Supreme Court'slong-arm jurisdiction pursuant to CPLR 302 (a) (3) (ii) (cf. Alden Personnel, Inc. vDavid, 38 AD3d at 698), we modify the order appealed from to allow the appellants to seekdismissal of the complaint pursuant to CPLR 3211 (a) (8) upon the completion of discovery(see Ying Jun Chen v Lei Shi, 19 AD3d 407, 407-408 [2005]; Lettieri v Cushing,80 AD3d 574, 575-576 [2011]). Dillon, J.P., Belen, Sgroi and Miller, JJ., concur.