Andrew Greenberg, Inc. v. Sirtech Canada, Ltd.Andrew Greenberg, Inc. v. Sirtech Canada, Ltd.
Mercure, J. Appeal from an order of the Supreme Court (Ledina, J.), entered January 21, 2010 in Sullivan County, which denied defendant Frederick Sirotek‘s motion for summary judgment dismissing the complaint against him.
The underlying facts are more fully set forth in the various prior decisions of this Court and the Court of Appeals in these two consolidated actions for breach of contract, an accounting, trade secret misappropriation and tortious interference (see Andrew Greenberg, Inc. v Svane, Inc., 36 AD3d 1094 [2007]; Andrew Greenberg, Inc. v Sir-Tech Software, 2 AD3d 1042 [2003], revd 4 NY3d 185 [2005]; Andrew Greenberg, Inc. v Sir-Tech Software, 297 AD2d 834 [2002]; Andrew Greenberg, Inc. v Sir-Tech Software, 245 AD2d 1004 [1997]). This appeal involves the denial of a motion by defendant Frederick Sirotek (hereinafter Sirotek) for summary judgment dismissing the sole remaining claim against him—sounding in trade secret misappropriation—on the ground that Supreme Court lacks personal jurisdiction over him.
As relevant here, plaintiff entered into a 1981 agreement with Sir-Tech Software, Inc. granting Sir-Tech the exclusive right to manufacture and market a computer game created by plaintiff and known as “Wizardry.” The agreement, which was signed by
Following joinder of issue, Sirotek‘s original 2003 motion to dismiss the complaint against him for lack of personal jurisdiction was continued by Supreme Court, pending additional discovery. Extensive motion practice, discovery and several appeals ensued, resulting in a decision by the Court of Appeals holding that the motion of the Canadian corporate defendants to dismiss for lack of personal jurisdiction must be denied under
In 2009, Sirotek, who lives in Canada, sought summary judgment dismissing the remaining trade secret misappropriation claim on the ground that Supreme Court lacks personal jurisdiction over him. Supreme Court denied the motion, prompting this appeal.
We affirm. In determining whether the New York courts have personal jurisdiction over a non-domiciliary, such as Sirotek, a two-part analysis must be employed. First, it must be “determine[d] whether our long-arm statute (
As relevant here, long-arm jurisdiction under
Here, Sirotek acknowledges that he signed the 1981 agreement in his capacity as president of Sir-Tech, which was a New York corporation, and that he remained president during much of the 1980s. He argues, however, that there is no substantial relationship between his conduct in New York and plaintiff‘s remaining claim inasmuch as he retired from Sir-Tech in 1989, moved to Canada shortly thereafter, and—he avers—had no knowledge of the 1998 sale of Sir-Tech‘s assets to the defendant Canadian successor corporations. While this evidence established Sirotek‘s prima facie entitlement to summary judgment, we conclude that plaintiff raised triable issues of fact in opposition, warranting the denial of Sirotek‘s motion.
Plaintiff presented evidence that Sirotek remained on the board of directors of Sir-Tech until 1997. In 1996, Sirotek gave deposition testimony in the first of these actions stating that it was his own “mistake” that plaintiff was “overpaid” pursuant to the 1981 agreement and that plaintiff, whose principal he characterized as “greedy,” was not entitled to additional royalties. Sirotek‘s son Robert indicated that an independent marketing firm spent “a number of years” prior to the 1998 sale—i.e., while Sirotek remained on the board of directors—seeking a buyer for Sir-Tech‘s assets, which it sold to raise money for its
In our view, this evidence—particularly in light of the closely-held nature of the corporations involved—gives rise to questions of fact regarding whether Sirotek transacted business in the state that was substantially related to plaintiff‘s cause of action (see Kreutter v McFadden Oil Corp., 71 NY2d at 470-471; Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, 466-467 [1965], cert denied sub nom. Estwing Mfg. Co., Inc. v Singer, 382 US 905 [1965]; Stardust Dance Prods., Ltd. v Cruise Groups Intl., Inc., 63 AD3d at 1265; Otterbourg, Steindler, Houston & Rosen v Shreve City Apts., 147 AD2d 327, 331-332 [1989]; see also Sybron Corp. v Wetzel, 46 NY2d 197, 203-204 [1978]; see generally W. Joseph McPhillips, Inc. v Ellis, 278 AD2d 682, 684 [2000]; Key Bank of N.Y. v Grossi, 227 AD2d 841, 843 [1996]). We further reject Sirotek‘s argument that the exercise of personal jurisdiction over him by the New York courts would offend due process. “[A] State may constitutionally exercise jurisdiction over non-domiciliary defendants, provided they ha[ve] certain minimum contacts with [the forum State]
and attempted to rely upon that settlement, which he signed, to obtain dismissal of plaintiff‘s remaining claims against him in this action (see Andrew Greenberg, Inc. v Svane, Inc., 36 AD3d at 1096-1098). “Use of the New York courts is a traditional justification for the exercise of personal jurisdiction over a non-resident” (Matter of Sayeh R., 91 NY2d 306, 319 [1997] [citations omitted]; see Lynch v Austin, 96 AD2d 196, 199 [1983]) and, under the circumstances, the exercise of jurisdiction over Sirotek comports with due process (see Fischbarg v Doucet, 9 NY3d at 384-385; LaMarca v Pak-Mor Mfg. Co., 95 NY2d at 217-219; Perkow v Frank W. Winne & Sons, Inc., 36 AD3d 1189, 1190-1191 [2007]).
Sirotek‘s remaining arguments are either rendered academic or, upon consideration, have been found to be lacking in merit.
Cardona, P.J., Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is affirmed, with costs.