| Daniel B. Katz & Assoc. Corp. v Midland Rushmore, LLC |
| 2011 NY Slip Op 09584 [90 AD3d 977] |
| December 27, 2011 |
| Appellate Division, Second Department |
| Daniel B. Katz & Associates Corp., Appellant, v MidlandRushmore, LLC, et al., Respondents. |
—[*1] Halperin Battaglia Raicht, LLP, New York, N.Y. (Neal W. Cohen and Frost Brown ToddLLC [Neil Desai], of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract, tortious interference withcontractual relations, and tortious interference with business relationships, the plaintiff appealsfrom an order of the Supreme Court, Rockland County (Kelly, J.), dated September 24, 2010,which granted the defendants' motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint forlack of personal jurisdiction.
Ordered that the order is affirmed, with costs.
The plaintiff, Daniel B. Katz & Associates Corp., doing business as Katz & Associates, is areal estate broker licensed in New York and other states which conducts a national brokerage andmarketing business. The complaint alleged that the defendants Midland Rushmore, LLC, andMidland Burnsville, LLC, were Ohio corporations with their principal places of business inSouth Dakota and Ohio, respectively, and that the individual defendant, John Silverman, was aresident of Ohio.
The plaintiff commenced this action to recover fees allegedly earned in connection with theprocurement of tenants for shopping centers located in Minnesota and South Dakota. Theplaintiff also alleged, among other things, that the individual defendant tortiously interfered withthe plaintiff's contract, existing business relationships, and prospective business relationshipswhen it made false statements in connection with one of these projects.
The defendants moved pursuant to CPLR 3211 (a) (8) to dismiss the complaint for lack ofpersonal jurisdiction. The plaintiff opposed the motion, submitting evidence that the defendantsmade phone calls and sent e-mails to its offices in Illinois and New York concerning theshopping centers at issue. The plaintiff also asserted that it had represented the defendants at anindustry trade show in New York. The Supreme Court granted the defendants' motion. Weaffirm.[*2]
"While the ultimate burden of proof rests with the partyasserting jurisdiction . . . , the plaintiff[ ], in opposition to a motion to dismisspursuant to CPLR 3211 (a) (8), need only make a prima facie showing that the defendant[s]w[ere] subject to the personal jurisdiction of the Supreme Court" (Cornely v Dynamic HVAC Supply,LLC, 44 AD3d 986, 986 [2007] [citation omitted]; see Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793, 794 [2008]; Alden Personnel, Inc. v David, 38AD3d 697, 698 [2007]). When opposing a motion to dismiss a complaint pursuant to CPLR3211 (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 "need onlydemonstrate that facts 'may exist' to exercise personal jurisdiction over the defendant" (Ying Jun Chen v Lei Shi, 19 AD3d407, 407-408 [2005], quoting CPLR 3211 [d]; see Peterson v Spartan Indus., 33NY2d 463, 467 [1974]). If "it appear[s] from affidavits submitted in opposition to [the] motion. . . that facts essential to justify opposition may exist but cannot then be stated," acourt may, in the exercise of its discretion, postpone resolution of the issue of personaljurisdiction (CPLR 3211 [d]; see Peterson v Spartan Indus., 33 NY2d at 467; YingJun Chen v Lei Shi, 19 AD3d at 407-408).
Here, the Supreme Court properly granted the defendants' motion pursuant to CPLR 3211 (a)(8) to dismiss the complaint for lack of personal jurisdiction. "Jurisdiction under CPLR 301 maybe acquired over a foreign corporation [or other business entity] only if that corporation [orentity] does business here 'not occasionally or casually, but with a fair measure of permanenceand continuity' so as to warrant a finding of its 'presence' in this jurisdiction" (Sedig v OkemoMtn., 204 AD2d 709, 710 [1994] [some internal quotation marks omitted], quotingApicella v Valley Forge Military Academy & Jr. Coll., 103 AD2d 151, 154 [1984];see Landoil Resources Corp. v Alexander & Alexander Servs., 77 NY2d 28, 34 [1990];Tauza v Susquehanna Coal Co., 220 NY 259, 267 [1917]). Moreover, "[a]n individualcannot be subject to jurisdiction under CPLR 301 unless he is doing business in New York as anindividual rather than on behalf of a corporation" (Brinkmann v Adrian Carriers, Inc., 29 AD3d 615, 617 [2006];see Laufer v Ostrow, 55 NY2d 305, 313 [1982]). Contrary to the plaintiff's contention,the defendants were not doing business in New York (see Miller v Surf Props., 4 NY2d475, 480 [1958]; Arroyo v MountainSchool, 68 AD3d 603, 603 [2009]; Sedig v Okemo Mtn., 204 AD2d at 710;Muollo v Crestwood Vil., 155 AD2d 420, 420 [1989]; Apicella v Valley ForgeMilitary Academy & Jr. Coll., 103 AD2d at 154).
Under CPLR 302 (a) (1), "a court may exercise personal jurisdiction over anynon-domiciliary . . . who in person or through an agent . . . transactsany business within the state or contracts anywhere to supply goods or services in the state.""CPLR 302 (a) is a 'single act statute [and] . . . proof of one transaction in NewYork is sufficient to invoke jurisdiction, even though the defendant never enters New York, solong as the defendant's activities here were purposeful and there is a substantial relationshipbetween the transaction and the claim asserted' " (Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433, 434[2006], quoting Deutsche Bank Sec.,Inc. v Montana Bd. of Invs., 7 NY3d 65, 71 [2006], cert denied 549 US 1095[2006]). "Purposeful activities are those with which a defendant, through volitional acts, 'availsitself of the privilege of conducting activities within the forum State, thus invoking the benefitsand protections of its laws' " (Fischbargv Doucet, 9 NY3d 375, 380 [2007], quoting McKee Elec. Co. v Rauland-BorgCorp., 20 NY2d 377, 382 [1967]).
Here, the defendants did not conduct sufficient purposeful activities in New York, whichbore a substantial relationship to the subject matter of this action, so as to avail themselves of thebenefits and protections of New York's laws (see Executive Life Ltd. v Silverman, 68 AD3d 715 [2009];Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d at 434; Milliken vHolst, 205 AD2d 508, 509-510 [1994]; cf. Fischbarg v Doucet, 9 NY3d at 377; Kaprall v WE: Women's Entertainment,LLC, 74 AD3d 1151, 1153 [2010]; Transportation Ins. Co. v Simplicity, Inc., 61 AD3d 963, 964[2009]; Corporate Campaign v Local 7837, United Paperworkers Intl. Union, 265 AD2d274, 275-276 [1999]).
The Supreme Court also properly determined that personal jurisdiction over the individualdefendant was not conferred pursuant to CPLR 302 (a) (3), based upon alleged tortious activityoccurring outside New York, causing injury within New York (see Muse Collections, Inc. v CarissimaBijoux, Inc., 86 AD3d 631, 631-632 [2011], lv denied 17 NY3d 716 [2011]).Accordingly, the Supreme Court properly granted the defendants' motion pursuant to CPLR 3211(a) (8) to dismiss the complaint for lack of personal jurisdiction. Dillon, J.P., Florio, Chambersand Miller, JJ., concur.