Daniel B. Katz & Associates Corp. v. Midland Rushmore, LLC
937 N.Y.2d 236
N.Y. App. Div.
2011
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DANIEL B. KATZ & ASSOCIATES CORP., Appellant, v MIDLAND RUSHMORE, LLC, et al., Respondents.

Appellate Division of the Supreme Court of New York, Second Department

[937 NYS2d 236]

DANIEL B. KATZ & ASSOCIATES CORP., Appellant, v MIDLAND RUSHMORE, LLC, et al., Respondents. [937 NYS2d 236]—

The plaintiff commenced this action to recover fees allegedly earned in connection with the procurement of tenants for shopping centers located in Minnesota and South Dakota. The plaintiff also alleged, among other things, that the individual defendant tortiously interfered with the plaintiff’s contract, existing business relationships, and prospective business relationships when 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 of personal jurisdiction. The plaintiff opposed the motion, submitting evidence that the defendants made phone calls and sent e-mails to its offices in Illinois and New York concerning the shopping centers at issue. The plaintiff also asserted that it had represented the defendants at an industry trade show in New York. The Supreme Court granted the defendants’ motion. We affirm.

“While the ultimate burden of proof rests with the party asserting jurisdiction . . . , the plaintiff[ ], in opposition to a motion to dismiss pursuant 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” ( [citation omitted]; see ; ). When opposing a motion to dismiss a complaint pursuant to CPLR 3211 (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 only demonstrate that facts ‘may exist’ to exercise personal jurisdiction over the defendant” (, quoting CPLR 3211 [d]; see ). 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,” a court may, in the exercise of its discretion, postpone resolution of the issue of personal jurisdiction (CPLR 3211 [d]; see , 33 NY2d at 467; ).

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 may be acquired over a foreign corporation [or other business entity] only if that corporation [or entity] does business here ‘not occasionally or casually, but with a fair measure of permanence and continuity’ so as to warrant a finding of its ‘presence’ in this jurisdiction” ( [some internal quotation marks omitted], quoting ; see ; ). Moreover, “[a]n individual cannot be subject to jurisdiction under CPLR 301 unless he is doing business in New York as an individual rather than on behalf of a corporation” (; see ). Contrary to the plaintiff’s contention, the defendants were not doing business in New York (see ; ; ; ; ).

Under CPLR 302 (a) (1), “a court may exercise personal jurisdiction over any non-domiciliary . . . 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) 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’ ” (, quoting , cert denied ). “Purposeful activities are those with which a defendant, through volitional acts, ‘avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws’ ” (, quoting ).

Here, the defendants did not conduct sufficient purposeful activities in New York, which bore a substantial relationship to the subject matter of this action, so as to avail themselves of the benefits and protections of New York’s laws (see ; ; ; cf. ; ; ; ).

The Supreme Court also properly determined that personal jurisdiction over the individual defendant was not conferred pursuant to CPLR 302 (a) (3), based upon alleged tortious activity occurring outside New York, causing injury within New York (see , lv denied ). 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, Chambers and Miller, JJ., concur.