On personal jurisdiction and such

Yellowbook, Inc. v Hedge, 183 AD3d 925 [2d Dept. 2020]

We agree with the Supreme Court’s determination to grant the defendant’s motion. “Where, as here, a defendant moves to vacate a default judgment on the ground that the court that rendered the judgment lacked personal jurisdiction over the defendant, a finding in favor of the defendant would mean that the judgment was ‘a nullity’ ” (Cach, LLC v Ryan, 158 AD3d 1193, 1193 [2018] [citation omitted], quoting Royal Zenith Corp. v Continental Ins. Co., 63 NY2d 975, 977 [1984]). “It necessarily follows that, if a judgment is a nullity, it never legally existed so as to become extinguished by payment” (Cach, LLC v Ryan, 158 AD3d at 1193-1194 [internal quotation marks omitted]).

Castro v Pfizer, Inc., 183 AD3d 797 [2d Dept. 2020]

As a threshold matter, under the circumstances of this case, the Supreme Court providently exercised its discretion in determining that the plaintiff waived her contention that Mylan’s motion to dismiss was untimely (see Rozz v Law Offs. of Saul Kobrick, P.C., 134 AD3d 920, 921-922 [2015]; Spagnoletti v Chalfin, 131 AD3d 901, 901-902 [2015]; Glass v Captain Hulbert House, LLC, 103 AD3d 607, 608 [2013]; Lai Har Chin v Yard, 40 AD3d 590, 590-591 [2007]; Volin v City Beach Catering Corp., 166 AD2d 583, 584 [1990]). Having lulled Mylan into withdrawing its pending motion to extend its time to answer the amended complaint by accepting, without objection, a courtesy copy of its July 1, 2015, motion to dismiss, the plaintiff could not, two months later, cross-move to enter a default judgment against Mylan (cf. Amaral v Smithtown News, Inc., 172 AD3d 1287, 1290 [2019]). Accordingly, we agree with the court’s determination to deny the branch of the plaintiff’s cross motion which was for leave to enter a default judgment against Mylan, and to consider the merits of Mylan’s pre-answer motion to dismiss.

***

The plaintiff contends that New York has long-arm jurisdiction over the NJ medical providers, on the ground that they supplied “services in th[is] state” (CPLR 302 [a] [1]). This contention lacks merit. The medical treatment in question occurred in New Jersey. The connection of the medical providers with New York is that they discharged a patient under their care to her home in New York, where she filled prescriptions allegedly provided by them, and took the medicine prescribed. The alleged conduct of the NJ medical providers did not constitute transacting business in this state (see Paterno v Laser Spine Inst., 24 NY3d 370, 375 [2014]; Etra v Matta, 61 NY2d 455 [1984]). Further, a state’s authority over a nonresident defendant requires certain “minimum contacts” with the forum state, which the defendant himself or herself created (Walden v Fiore, 571 US 277, 283-284 [2014] [internal quotation marks omitted]). The minimum contacts must be with the forum state, and not just with a resident of the forum state (see id. at 285). Here, the NJ medical providers’ contacts were with the plaintiff, a resident of New York, but not with New York itself. The NJ medical providers came into contact with the plaintiff only because she sought treatment from them in New Jersey (see O’Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199, 201 [2003]). Accordingly, we agree with the Supreme Court’s determination granting that branch of the NJ medical providers’ motion which was pursuant to CPLR 3211 (a) (8) to dismiss the amended complaint insofar as asserted against them.

Sacco v Reel-O-Matic, Inc., 183 AD3d 567 [2d Dept. 2020]

Based on the above, we agree with the Supreme Court’s determination that Go Industries did not establish that long-arm jurisdiction under CPLR 302 is inapplicable. However, that does not end our inquiry, because a New York court may not exercise personal jurisdiction over a non-domiciliary unless two requirements are satisfied: the action is permissible under the long-arm statute (see CPLR 302) and the exercise of jurisdiction comports with due process (see LaMarca v Pak-Mor Mfg. Co., 95 NY2d at 214). If either the statutory or constitutional prerequisite is lacking, the action may not proceed (see Williams v Beemiller, Inc., 33 NY3d 523, 528 [2019]).

With respect to due process, “A non-domiciliary tortfeasor has minimum contacts with the forum State . . . if it purposefully avails itself of the privilege of conducting activities within the forum State” (LaMarca v Pak-Mor Mfg. Co., 95 NY2d at 216 [internal quotation marks omitted]), “thus invoking the benefits and protections of [the forum state’s] laws” (Hanson v Denckla, 357 US 235, 253 [1958]; see Williams v Beemiller, Inc., 33 NY3d at 528). This test envisions something more than the “ ’fortuitous circumstance’ ” that a product sold in another state later makes its way into the forum jurisdiction through no marketing or other effort of defendant (Williams v Beemiller, Inc., 33 NY3d at 528, quoting World-Wide Volkswagen Corp. v Woodson, 444 US 286, 295 [1980]). In this case, Go Industries’ website presented Go Industries as a manufacturer of premium products that could be bought from national retailers, both online and through at least one store located in New York state. This evidence was sufficient to satisfy due process requirements (see Archer-Vail v LHV Precast Inc., 168 AD3d 1257, 1261-1262 [2019]; Darrow v Hetronic Deutschland, 119 AD3d at 1144; Halas v Dick’s Sporting Goods, 105 AD3d at 1412).

HSBC Bank USA, N.A. v Assouline, 177 AD3d 603 [2d Dept. 2019]

Although the defendant did not deny having actual notice of the action, “[w]hen the requirements for service of process have not been met, it is irrelevant that defendant may have actually received the documents” (Raschel v Rish, 69 NY2d 694, 697 [1986] [emphasis added]; see Markoff v South Nassau Community Hosp., 61 NY2d 283, 288 [1984]; Feinstein v Bergner, 48 NY2d 234, 241 [1979]). “Service is only effective . . . when it is made pursuant to the appropriate method authorized by the CPLR. Actual notice alone will not sustain the service or subject a person to the court’s jurisdiction [when there has not been compliance with] prescribed conditions of service” (Markoff v South Nassau Community Hosp., 61 NY2d at 288 [citations omitted]).

Hala v Orange Regional Med. Ctr., 178 AD3d 151 [2d Dept. 2019]

Notwithstanding the goals of the UILA, for the reasons set forth herein, the principles of due process and the right of the plaintiffs to seek redress in the courts in New York for wrongs they allege occurred in New York mandate that the South Carolina order is not entitled to full faith and credit or comity by the courts in New York in this and the related actions.

Grandelli v Hope St. Holdings, LLC, 176 AD3d 922 [2d Dept. 2019]

Moreover, the plaintiffs and the defendants that opposed Warner Europe’s motion to dismiss did not make a showing of a “sufficient start” to warrant the denial of the motion (Leuthner v Homewood Suites by Hilton, 151 AD3d 1042, 1044 [2017] [internal quotation marks omitted]). There is no basis to allow discovery to be conducted on the issue of personal jurisdiction since the opposing parties did not allege any facts which, if proven, would establish that Warner Europe may be subject to personal jurisdiction in New York (see id. at 1044-1045; Chen v Guo Liang Lu, 144 AD3d 735, 738 [2016]).

Fekah v Baker Hughes Inc., 176 AD3d 527 [1st Dept. 2019]

As the Second Department held in Aybar v Aybar (169 AD3d 137 [2d Dept 2019], lv dismissed 33 NY3d 1044 [2019]), a corporate defendant’s registration to do business in New York and the designation of the Secretary of State to accept service of process in New York does not constitute consent by the corporation to submit to the general jurisdiction of New York for causes of action that are unrelated to the corporation’s affiliations with New York. Accordingly, defendant’s motion to dismiss on ground of CPLR 301 was properly granted (see also Best v Guthrie Med. Group, P.C., 175 AD3d 1048 [4th Dept 2019]; Gronich & Co., Inc. v Simon Prop. GroupInc., 2019 NY Slip Op 31007[U] [Sup Ct, NY County 2019]; Kline v Facebook, Inc., 62 Misc 3d 1207[A], 2019 NY Slip Op 50027[U] [Sup Ct, NY County 2019]; Kyowa Seni, Co., Ltd. v ANA Aircraft Technics, Co.Ltd., 60 Misc 3d 898 [Sup Ct, NY County 2018]).

Aston v Algoma Hardwoods, Inc., 173 AD3d 408 [1st Dept. 2019]

Supreme Court correctly determined that it does not have personal jurisdiction pursuant to CPLR 302 (a) (1) over defendant Dykes Lumber Co., Inc. Plaintiff, a New Jersey resident, alleges that she was injured in New Jersey by products allegedly sold at defendant’s establishment in New Jersey. She has identified no activity of defendant in New York, either before or after its headquarters moved to New Jersey, that has a sufficient nexus to the injury to confer jurisdiction pursuant to CPLR 302 (a) (1) (see generally D&R Global Selections, S.L. v Bodega Olegario Falcon Pineiro, 29 NY3d 292, 297-298 [2017]; cf. Robins v Procure Treatment Ctrs., Inc., 157 AD3d 606 [1st Dept 2018] [where injury occurred as result of medical treatment at New Jersey facility by New Jersey defendant, evidence of defendant’s advertising in New York and referral agreement with New York facility warranted jurisdictional discovery under CPLR 302 (a) (1)]).

Matter of New York City Asbestos Litig., 173 AD3d 519 [1st Dept. 2019]

A party seeking dismissal on the grounds that the court does not have personal jurisdiction over it waives such objection if it is not raised in a responsive pleading or if the party, having previously moved for dismissal, failed to raise an objection to personal jurisdiction (CPLR 3211 [a], [e]; see also McGowan v Hoffmeister, 15 AD3d 297 [1st Dept 2005]). The latter is not applicable here. Rather, the defendant argues that it asserted a defense of lack of personal jurisdiction in its answer, and thus preserved the issue for adjudication in its present motion.

Personal jurisdiction is not an element of a claim, and matters that are not elements need not be pleaded in the complaint (see US Bank N.A. v Nelson, 169 AD3d 110, 114 [2d Dept 2019]). Where the plaintiff has not alleged facts specifically addressing the issue of personal jurisdiction in its complaint, the defendant must assert lack of personal jurisdiction as an affirmative defense in order to give plaintiff notice that it is contesting it (see CPLR 3018). Where the plaintiff elects to allege facts specifically addressing the issue of personal jurisdiction in its complaint, the defendant’s denial of those allegations may be sufficient to preserve defendant’s jurisdictional defense (see Green Bus Lines v Consolidated Mut. Ins. Co., 74 AD2d 136, 143 [2d Dept 1980]).

In this case, while defendant’s denial of specific jurisdiction was sufficient to preserve its defense, its claimed denial of general jurisdiction was insufficiently specific to preserve its defense. Accordingly, defendant waived its defense that the court lacked general jurisdiction over it.

The specific allegations of plaintiff’s complaint paragraph three track, almost verbatim, the language of personal jurisdiction in CPLR 302, which provides the bases for specific jurisdiction. Defendant’s denial of these allegations is sufficient to provide notice to plaintiff that it is contesting specific jurisdiction.

The allegations of plaintiff’s complaint paragraphs 83 and 84 purport to establish a basis for general jurisdiction. They were not denied by defendant, rather defendant admitted them to the extent that it “is a duly organized foreign corporation doing business in New York.” This answer, interposed in 2004, before the Supreme Court’s ruling in Daimler AG v Bauman (571 US 117 [2014]), would have provided a basis for general jurisdiction. It, therefore, does not qualify as a specific denial that would have put plaintiff on notice that the defendant is contesting general jurisdictionDefendant’s failure to clearly provide an objection to general jurisdiction in its answer waived the defense and conferred jurisdiction upon the court (McGowan v Hoffmeister, 15 AD3d 297 [1st Dept 2005]).

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