| D&R Global Selections, S.L. v Bodega Olegario FalconPineiro |
| 2015 NY Slip Op 04198 [128 AD3d 486] |
| May 14, 2015 |
| Appellate Division, First Department |
[*1]
| D&R Global Selections, S.L.,Respondent, v Bodega Olegario Falcon Pineiro,Appellant. |
Gleason & Koatz, LLP, New York (John P. Gleason of counsel), forappellant.
Zara Law Offices, New York (Robert M. Zara of counsel), for respondent.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered on orabout August 26, 2013, which granted plaintiff's motion to reargue and, uponreargument, denied defendant's motion for summary judgment, unanimously reversed, onthe law, without costs, and the motion granted. The Clerk is directed to enter judgmentdismissing the complaint.
As defendant neither is incorporated in New York State nor has its principal place ofbusiness here, New York courts may not exercise jurisdiction over it under CPLR 301(Daimler AG v Bauman, 571 US &mdash, 134 S Ct 746 [2014]; Magdalena v Lins, 123 AD3d600 [1st Dept 2014]). Therefore, the courts have no subject matter jurisdiction overthis action pursuant to Business Corporation Law § 1314 (b) (5) (seeABKCO Indus. v Lennon, 52 AD2d 435, 440 [1st Dept 1976]).
Nor is there subject matter jurisdiction under Business Corporation Law§ 1314 (b) (4), which depends on personal jurisdiction under CPLR 302.CPLR 302 authorizes the exercise of personal jurisdiction over a nondomiciliary "if thecause of action at issue arose out of the transaction of business within the State"(McGowan v Smith, 52 NY2d 268, 271 [1981]). We find that defendant's visitsto New York to promote its wine constitute the transaction of business here (seeLongines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, 455[1965], cert denied 382 US 905 [1965]). However, there is no substantial nexusbetween plaintiff's claim for unpaid commissions in connection with the sales of thatwine, pursuant to an agreement made and performed wholly in Spain, and thosepromotional activities (see McGowan, 52 NY2d at 268).
Defendant's request for sanctions was not raised before the motion court and wasresolved against him on his pre-appeal motion before this Court. Were we to reach themerits again on this appeal, we would again deny the request. Concur—Tom, J.P.,Sweeny, Andrias, Moskowitz and Gische, JJ.