CPLR § 301

Service round-up

CPLR § 306-b. Service of the summons and complaint, summons with
notice, third-party summons and complaint, or petition with a notice of
petition or order to show cause

CPLR § 312-a Personal service by mail
(a) Service
(b) Completion of service and time to answer

CPLR § 301 Jurisdiction over persons, property, or status

CPLR § 302 Personal Jurisdiction by acts of non-domiciliaries

CPLR
§ 308 Personal service upon a natural person
(4) Nail and Mail

CPLR R. 305 Summons; supplemental summons, amendment

I had less of these laying around than I thought.

JPMorgan Chase Bank, N.A. v Szajna, 2010 NY Slip Op 03286 (App. Div., 2nd, 2010)

The process server retained by the plaintiff made three attempts to
serve the defendant at his dwelling. Contrary to the defendant’s
contention, the three attempts to serve him at his dwelling at different
times and on different days, including an attempt on an early weekday
morning and an attempt during midday Saturday, were sufficient to
constitute “due diligence” within the meaning of CPLR 308(4) (see County of Nassau v Gallagher, 43 AD3d 972,
973-974; Johnson v Waters, 291 AD2d 481; Matos v Knibbs, 186
AD2d 725; Mitchell v Mendez, 107 AD2d 737, 738). Since there was
no indication that the defendant worked Saturdays or that his workplace
was readily ascertainable, the plaintiff was not required to attempt to
serve the defendant at his workplace (see Johnson v Waters, 291
AD2d 481; Matos v Knibbs, 186 AD2d 725; Mitchell v Mendez, 107
AD2d at 738; cf. Pizzolo v Monaco, 186 AD2d 727). Accordingly,
the process server properly resorted to service of process pursuant to
CPLR 308(4), and the defendant’s motion to vacate the default judgment
for lack of jurisdiction was properly denied.

Klein v Educational Loan Servicing, LLC, 2010 NY Slip Op 02519 (App. Div., 2nd, 2010)

Here, the defendants did not seek dismissal of the complaint insofar
as asserted against the corporate defendants on the ground of lack of
jurisdiction under either CPLR 301 or 302. Rather, the defendants
contended that the complaint should be dismissed insofar as asserted
against the corporate defendants based on improper service of process.
By failing to contend that there was no jurisdiction under either CPLR
301 or 302 over the corporate defendants in their cross motion, the
defendants waived their challenge to whether the corporate defendants
were subject to personal jurisdiction (see Weisener v Avis
Rent-A-Car, 182 AD2d 372, 373; Hatch v Tu Thi Tran, 170 AD2d
649, 650; Boswell v Jiminy Peak, 94 AD2d 782, 783).

Nevertheless, the plaintiff’s motion for leave to enter a default
judgment should have been denied and the complaint dismissed as against
all defendants since the plaintiff failed to present proof of valid
service of the summons and complaint as required by CPLR 312-a(a) and
(b). The plaintiff submitted evidence that he served the defendants by
certified mail, return receipt requested. However, he presented no
evidence that copies of the summons and complaint were sent to the
defendants, by first-class mail, together with, inter alia, two copies
of a statement of service by mail and acknowledgment of receipt, and
that the signed acknowledgment of receipts were mailed or delivered to
the plaintiff (see CPLR 312-a[a], [b]). In the absence of proper
service, no personal jurisdiction was acquired over the defendants (see
Bennett v Acosta, 68 AD3d 910; Horseman Antiques, Inc. v Huch, 50
AD3d 963, 964; Dominguez v Stimpson Mfg. Corp., 207 AD2d 375,
375).

Continue reading “Service round-up”

The Long Arm of New York

CPLR § 301 Jurisdiction over persons, property or status

CPLR § 302 Personal jurisdiction by acts of non-domiciliaries
(a) Acts which are the basis of jurisdiction
(1) transacts any business within the state or contracts anywhere to supply goods or services in the state

Executive Life Ltd. v Silverman, 2009 NY Slip Op 08994 (App. Div., 2nd, 2009)

The plaintiff, Executive Life Ltd., d/b/a Executive Alliance (hereinafter Executive), a New York-based executive search agency, allegedly contracted with the defendant, a Colorado-based collections attorney, to refer candidates for open paralegal and attorney positions in the defendant's law firm. The agreement between the parties provided that Executive would be entitled to a commission if it referred a person whom the defendant hired, and the person remained employed by the defendant for 60 consecutive days. The defendant was never physically present in New York, and the agreement between the parties was negotiated by telephone and email. Executive faxed the agreement, which provided that it would be governed by New York law, to the defendant, who executed it and returned it by fax. According to the complaint, Executive referred a candidate whom the defendant hired for the paralegal position and that person remained employed by the defendant for at least 60 consecutive days. Nevertheless, the defendant allegedly failed to pay the commission due. Executive commenced this action against the defendant in the Supreme Court, Suffolk County. The Supreme Court granted the defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction (see CPLR 302[a][1]). We affirm.

Under New York's long-arm statute, "a court may exercise personal jurisdiction over any non-domiciliary . . . who . . . transacts any business within the state . . ." (CPLR 302[a]), regardless of whether that nondomiciliary has actually set foot in New York State (see Fischbarg v Doucet, 9 NY3d 375, 380; Kreutter v McFadden Oil Corp., 71 NY2d 460, 467; Parke-Bernet Galleries v Franklyn, 26 NY2d 13, 17; Bogal v Finger, 59 AD3d 653). Whether a defendant has transacted business within New York is determined under the totality of the circumstances, and rests on whether the defendant, by some act or acts, has "purposefully avail[ed] itself of the privilege of conducting activities within [New York]" (Ehrenfeld v Bin Mahfouz, 9 NY3d 501, 508). "Purposeful activities are those with which a defendant, through volitional acts, avails itself of the [*2]privileges of conducting activities within the forum State, thus invoking the benefits and protections of its laws'" (Fischbarg v Doucet, 9 NY3d at 380, quoting McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377, 382). The long-arm statute is a "single-act" statute (Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71, cert denied sub nom. Montana Bd. of Invs. v Deutsch Bank Sec., Inc., 549 US 1095; see George Reiner & Co. v Schwartz, 41 NY2d 648, 651-652) and, thus, evidence of even one such transaction is sufficient to confer jurisdiction over a nondomiciliary defendant, provided that the defendant's activities 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 Stardust Dance Prods., Ltd. v Cruise Groups, Intl., Inc., 63 AD3d 1262, 1264). "[I]t is the quality of the defendants' New York contacts that is the primary consideration" (Fischbarg v Doucet, 9 NY3d at 380).

The Supreme Court properly dismissed the complaint. Although negotiations may have taken place by telephone, fax, and email, and the defendant allegedly faxed the agreement to Executive's office in New York, the defendant's actions did not amount to a purposeful invocation of the privileges of conducting business in New York. We note that the defendant did not specify that any applicant was to come from New York, and, indeed, the person he hired was already based in Colorado (see Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433, 434; Professional Personnel Mgt. Corp. v Southwest Med. Assoc., 216 AD2d 958; Milliken v Holst, 205 AD2d 508, 509-510; cf. Corporate Campaign v Local 7837, United Paperworkers Intl. Union, 265 AD2d 274, 275-276). The choice of law provision in the agreement, while relevant, is insufficient by itself to confer personal jurisdiction over the defendant in New York under CPLR 302(a)(1) (see Goulds Pumps v Mazander Engineered Equip. Co., 217 AD2d 960, 961; Peter Lisec Glastechnische Industrie GmbH v Lenhardt Maschinenbau GmbH, 173 AD2d 70, 72).

CPLR Article 3: § 301; § 302; § 317 & Jurisdiction & CPLR § 3215(c)

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.