Opinion
9884 Index 656243/16
09-24-2019
ABKCO MUSIC, INC., Plaintiff–Respondent, v. Carl G. MCMAHON, AS TRUSTEE OF the ANDREA MARLESS COOKE FAMILY TRUST, Defendant–Appellant, Andrea M. Cooke, Defendant.
Rivkin Radler LLP, Uniondale (Avigael Fyman of counsel), for appellant. Michael B. Kramer & Associates, New York (Michael B. Kramer of counsel), for respondent.
Rivkin Radler LLP, Uniondale (Avigael Fyman of counsel), for appellant.
Michael B. Kramer & Associates, New York (Michael B. Kramer of counsel), for respondent.
Sweeny, J.P., Richter, Kapnick, Kern, Singh, JJ.
Order, Supreme Court, New York County (Robert R. Reed, J.), entered December 6, 2017, which denied defendant trustee's motion for summary judgment dismissing the complaint as against him for lack of personal jurisdiction, unanimously reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
The trustee's requests from Ohio, by letter, telephone, and/or email, to plaintiff in New York to send him monies due under the royalty agreement that plaintiff had entered into in 1986 with nonparty Denise Somerville, a/k/a Denise Somerville Cooke (Somerville)—which would merely continue plaintiff's previous practice of sending royalties to Somerville in Ohio—do not constitute the transaction of business under CPLR 302(a)(1) (see e.g. Ehrenfeld v. Bin Mahfouz, 9 N.Y.3d 501, 511, 851 N.Y.S.2d 381, 881 N.E.2d 830 [2007] ["The mere receipt by a nonresident of a benefit or profit from a contract performed by others in New York is clearly not an act by the recipient in this State sufficient to confer jurisdiction under our long-arm statute"] [internal quotation marks omitted]; Courtroom Tel. Network v. Focus Media, 264 A.D.2d 351, 353, 695 N.Y.S.2d 17 [1st Dept. 1999] ["a passive buyer of a New York ... service" would not be subject to this State's jurisdiction]; Liberatore v. Calvino, 293 A.D.2d 217, 220, 742 N.Y.S.2d 291 [1st Dept. 2002] ["Telephone calls and written communications, which generally are held not to provide a sufficient basis for personal jurisdiction under the long-arm statute, must be shown to have been used by the defendant to actively participate in business transactions in New York"] [internal quotation marks omitted] ).
Plaintiff cites no authority for imputing Somerville's act of negotiating the contract in 1986 to the trustee, who did not become the trustee until 2009. Even if Somerville's conduct were attributed to the trustee, negotiating a contract from outside New York "is insufficient to constitute the transaction of business in New York" ( Kennedy v. Yousaf, 127 A.D.3d 519, 520, 5 N.Y.S.3d 725 [1st Dept. 2015] ; see also SunLight Gen. Capital LLC v. CJS Invs. Inc., 114 A.D.3d 521, 522, 981 N.Y.S.2d 390 [1st Dept. 2014] ; Libra Global Tech. Servs. [UK] v. Telemedia Intl., 279 A.D.2d 326, 327, 719 N.Y.S.2d 53 [1st Dept. 2001] ).
The fact that the contract chooses New York law does not "constitute a voluntary submission to personal jurisdiction in New York" ( First Natl. Bank & Trust Co. v. Wilson, 171 A.D.2d 616, 619, 567 N.Y.S.2d 468 [1st Dept. 1991] ; see also Aero–Bocker Knitting Mills v. Allied Fabrics Corp., 54 A.D.2d 647, 648, 387 N.Y.S.2d 635 [1st Dept. 1976] ). As the motion court recognized when granting former defendant Andrea M. Cooke's motion to dismiss the claims against her pursuant to CPLR 3211(a)(8), plaintiff could have added a New York forum selection clause when it prepared the royalty agreement (see also Merrill Lynch, Pierce, Fenner & Smith v. McLeod, 208 A.D.2d 81, 84, 622 N.Y.S.2d 954 [1st Dept. 1995] ).
The trustee made a prima facie case that New York lacked jurisdiction over him, and plaintiff failed to meet its burden to present sufficient facts to demonstrate jurisdiction (see Cotia [USA] Ltd. v. Lynn Steel Corp., 134 A.D.3d 483, 484, 21 N.Y.S.3d 231 [1st Dept. 2015] ; see also Copp v. Ramirez, 62 A.D.3d 23, 28, 874 N.Y.S.2d 52 [1st Dept. 2009], lv denied 12 N.Y.3d 711, 882 N.Y.S.2d 397, 909 N.E.2d 1235 [2009] ).
In light of the foregoing, we need not reach the issues of whether this action arises out of defendant's alleged New York contacts ( Ehrenfeld, 9 N.Y.3d at 513 n 10, 851 N.Y.S.2d 381, 881 N.E.2d 830 ) and whether it would violate due process for New York to exercise jurisdiction over the trustee (see e.g. Williams v. Beemiller, Inc., 33 N.Y.3d 523, 528–29, 106 N.Y.S.3d 237, 130 N.E.3d 833, 2019 N.Y. Slip Op. 03656, *2 [2019] ).