CPLR § 301 Jurisdiction over persons, property or status
CPLR § 302 Personal jurisdiction by acts of non-domiciliaries
(a)(1)
CPLR § 317 Defense by person to whom summons not personally delivered
CPLR § 3215 Default judgment
(c)
Stevenson-Misischia v L'Isola D'Oro SRL, 2009 NY Slip Op 05687 (App. Div., 1st, 2009)
Contrary to plaintiff's claim, personal jurisdiction was not obtained over defendant L'Isola D'Oro USA by service under Business Corporation Law § 307. The record does not support a finding that defendant Casamento was acting as a managing or general agent for this New Jersey corporation at the time he was served, or that he was ever authorized by appointment or by law to receive service on its behalf (see Low v Bayerische Motoren Werke, AG, 88 AD2d 504 [1982]).
The action was also properly dismissed against the Italian defendants, L'Isola D'Oro SRL and Sud Pesca SPA, for failure to show they had any business connections with New York or transacted any business here in any manner related to the allegedly tortious conduct (CPLR 301, 302; see Landoil Resources Corp. v Alexander & Alexander Servs., 77 NY2d 28 [1990]; McGowan v Smith, 52 NY2d 268 [1981]).
Cohen v Michelle Tenants Corp., 2009 NY Slip Op 05504 (App. Div., 2nd, 2009)
CPLR 317 permits a defendant who has been "served with a summons other than by personal delivery" to defend the action upon a finding of the court that the defendant "did not personally receive notice of the summons in time to defend and has a meritorious defense" (CPLR 317; see Eugene Di Lorenzo, Inc. v A.C.Dutton Lbr. Co., 67 NY2d 138, 141; Taieb v Hilton Hotels Corp., 60 NY2d 725, 728; Reyes v DCH Mgt., Inc., 56 AD3d 644; Franklin v 172 Aububon Corp., 32 AD3d 454; Brockington v Brookfield Dev. Corp., 308 AD2d 498). The defendant, which was served by service of process upon the Secretary of State, established that it did not receive personal notice of the summons in time to defend (see Calderon v 163 Ocean Tenants Corp., 27 AD3d 410, 410-411; Ford v 536 E. 5th St. Equities, 304 AD2d 615). Furthermore, there is no basis to conclude that the defendant deliberately attempted to avoid notice of the action. There was no evidence that the defendant was on notice that an old address was on file with the Secretary of State (see Tselikman v Marvin Ct, Inc., 33 AD3d 908, 909; Hon-Kuen Lo v Gong Park Realty Corp., 16 AD3d 553; Grosso v MTO Assoc. Ltd. Partnership., 12 AD3d 402). In addition, the defendant established the existence of a potentially meritorious defense (see Hawkins v Carter Community Hous. Dev. Fund [*2]Corp., 40 AD3d 812, 813; Joseph v Villages at Huntington Home Owners Assn., Inc., 39 AD3d 481, 482).
The Supreme Court properly denied that branch of the defendant's motion which was pursuant to CPLR 3215(c) to dismiss the complaint. The plaintiff actively took proceedings for the entry of judgment within one year after the default and thereby complied with the statute (see Bank of New York v Gray, 228 AD2d 399, 400; Q.P.I. Restaurants, Ltd. v Slevin, 93 AD2d 767, 768).
Zottola v AGI Group, Inc., 2009 NY Slip Op 05327 (App. Div., 2nd, 2009)
Due process requires that to exercise jurisdiction over a nonresident defendant, the nonresident defendant must have "minimum contacts" such that maintenance of the action does not offend traditional notions of fair play and substantial justice (see e.g. International Shoe Co. v Washington, 326 US 310). Due process is not offended "[s]o long as a party avails itself of the benefits of the forum, has sufficient minimum contacts with it, and should reasonably expect to defend its actions there . . . even if not present' in that State. . . . New York's long-arm statute, CPLR 302, was enacted in response to [inter alia that decision]" (Kruetter v McFadden Oil Corp., 71 NY2d 460, 466-467 [internal quotations and citations omitted]).
Under CPLR 302(a)(1), the provision at issue here, "a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent . . . transacts any business within the state or contracts anywhere to supply goods or services in the state" (CPLR 302[a][1]). CPLR 302(a)(1) "is a single act statute' and proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted" (Kreutter v McFadden Oil Corp., 71 NY2d at 467; see Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71, cert denied 549 US 1095). Thus, to avail itself of this statute, a plaintiff must not only establish that the defendant purposefully transacted business within the State of New York, but must also show a substantial relationship, which may pertain to a single act, between the transaction and the claim asserted (see Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d at 71, cert denied 549 US 1095; Kruetter v McFadden Oil Corp., 71 NY2d at 467).
To satisfy the "transacting business" requirement under CPLR 302(a)(1), a nonresident defendant must purposefully avail itself of the privilege of conducting activities in New York, thus invoking the benefits and protections of New York law (see McGowan v Smith, 52 NY2d 268, 271). The totality of the nonresident defendant's activities within the forum state is considered in order to determine whether its contacts satisfy the "transacting business" requirement (see Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, 457-458).
In response to AGI's assertions that it lacked the minimum contacts, the plaintiff made a prima facie showing that there were sufficient minimum contacts to permit New York to exercise in personam jurisdiction over AGI. In his complaint, the plaintiff alleged first, that "[both of] the defendants" (including AGI) agreed to deliver the boat in New York. Second, he provided proof that the money for the purchase of the boat was paid to AGI by wire transfer to a New York bank branch, not a Florida bank. Third, according to the "Manufacture's [sic] Statement of Origin," the boat in question was transferred on March 14, 2005, to AGI, and on December 2, 2005, AGI transferred the "Statement of Origin and boat" to the plaintiff at his New York address. This was sufficient to show that AGI accomplished this transaction in New York State, sufficiently availed itself of the benefits of doing business in this State, and had a substantial relationship with this State such that due process would not be offended by subjecting it to this State's jurisdiction, and that it thereby subjected itself to in personam jurisdiction under CPLR 302(a)(1). Thus, the motion by AGI pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against it should have been denied (see Bogal v Finger, 59 AD3d 653; Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243; People v Concert Connection, 211 AD2d 310, 315; cf. Farkas v Farkas, 36 AD3d 852; Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433).
The bold is mine.
