Opinion
No. 2013–1170 Q C.
01-15-2015
Rita SANCHEZ, Respondent, v. ALL CAR TOWING and Dennis Korkowski, Appellants, and M & T Bank, Defendant.
Opinion
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered April 1, 2013. The order denied a motion by defendants All Car Towing and Dennis Korkowski to dismiss the complaint, insofar as asserted against them, for lack of personal jurisdiction.
ORDERED that the order is modified by providing that the branch of the motion by defendant All Car Towing seeking to dismiss the complaint, insofar as asserted against it, is granted; as so modified, the order is affirmed, without costs.
Plaintiff commenced this action in 2011 for breach of contract, promissory estoppel, negligence, and unconscionability arising out of the storage and alleged wrongful sale of her 2003 BMW automobile. In her amended verified complaint, plaintiff, a New York City resident, alleges that, in September 2010, her vehicle broke down in New Jersey and was towed to defendant All Car Towing (ACT), a corporation conducting business in New Jersey. While located in New York, she telephoned ACT and spoke to defendant Dennis Korkowski, the owner of ACT, and they entered into an oral agreement whereby her vehicle would remain at ACT until she paid off her loan and then ACT would purchase the vehicle for $2,800. Plaintiff stated that she provided Korkowski with monthly telephone updates regarding the status of her loan repayment. When plaintiff called defendant M & T Bank (M & T) in March 2011 to arrange the final payment on her vehicle loan, she was told that her vehicle had been repossessed because she had failed to pay storage fees to ACT. Plaintiff then contacted Korkowski who, allegedly for the first time, told her about the storage fees. In their verified answer to the amended complaint, defendants ACT and Korkowski asserted the affirmative defense that there “is no jurisdiction ... in the State of New York.”
It is noted that ACT and Korkowski were served with the summonses and complaints in New Jersey.
ACT and Korkowski moved to dismiss the complaint, insofar as asserted against them, for lack of personal jurisdiction. In an affidavit in support of their motion, Korkowski alleged, among other things, that ACT is a New Jersey business which does not conduct business in New York, has no office in New York, and has no employees in New York; that all services were provided to plaintiff within New Jersey, and, at no time, did ACT enter into New York in the context of the matters at issue in the litigation; that ACT's contact with plaintiff in New York was limited to one piece of mail and five telephone conversations; and that “the State of New York does not have any jurisdiction over me or All Car Towing.” It is noted, however, that Korkowski made no statements regarding his personal residence.
In opposition to the motion to dismiss, plaintiff argued that the Civil Court had acquired long arm jurisdiction over ACT and Korkowski, and reiterated most of the statements she had made in her amended complaint. In opposition to the motion, M & T alleged that, in February 2011, ACT and/or Korkowski had initiated contact with it by mailing to it, in New York, a copy of the notification of unpaid storage fees that they had allegedly sent to plaintiff in New York City; that ACT and Korkowski then had negotiated a settlement of the lien which was paid by M & T to ACT; and that, thereafter, it had sold the car in May 2011 for $7,000.
By order entered April 1, 2013, the Civil Court denied the motion. This appeal by ACT and Korkowski ensued.
The Civil Court of the City of New York is a court of limited jurisdiction (see Agovino & Asselta, LLP v. Rubens, 36 Misc.3d 67 [App Term, 2d, 11th & 13th Jud Dists 2012] ; Green v. Lakeside Manor Home for Adults, Inc., 30 Misc.3d 16 [App Term, 2d, 11th & 13th Jud Dists 2010] ; see also N.Y. Const, art VI, § 15 ] ), and its reach for purposes of establishing personal jurisdiction is defined by statute (see Agovino & Asselta, LLP v. Rubens, 36 Misc.3d 67 ). Actions are commenced by the filing of a summons and complaint (CCA 400[1] ), followed by service upon a defendant (CCA 400[2] ), which generally must be made within the City of New York (see CCA 403 ; but see CCA 404[b], 405, 407, 408 ). Under CCA 404, the Civil Court's jurisdiction over non-residents of the City of New York is narrowly circumscribed. The pertinent part of this statute states as follows:
“(a) Acts which are the basis of jurisdiction. The court may exercise personal jurisdiction over any non-resident of the city of New York ... as to a cause of action arising from any of the acts enumerated in this section, in the same manner as if he were a domiciliary of the state and a resident of the city of New York if, in person or through an agent, he:
1. transacts any business within the city of New York or contracts anywhere to supply goods or services in the city of New York ...
(b) Service of summons. Service of summons under this section may be made in such manner and at such place, regardless of city or state lines, as would confer jurisdiction on supreme court in a like case.”
The long-arm jurisdiction conferred on the Civil Court by CCA 404(a)(1) is comparable to such jurisdiction conferred on New York courts under CPLR 302(a)(1). When a defendant moves to dismiss an action on jurisdictional grounds and such a challenge appears to have merit, the plaintiff has the burden of proving that jurisdiction has been properly obtained (see Fischbarg v, Doucet, 9 NY3d 375, 381 n. 5 [2007] ).
A review of the papers submitted in support of the motion indicates that the branch of the motion by Korkowski was properly denied since he never asserted that he was not a domiciliary of New York State and a resident of New York City when service was effectuated (see CCA 408[f] ).
With respect to the branch of the motion by ACT, plaintiff stated that she had spoken to Korkowski monthly on the telephone from about September 2010 to March 2011. ACT admitted that Korkowski had had five telephone conversations with plaintiff and that it had sent one piece of mail to plaintiff in New York City. Also, M & T stated that it had received one piece of mail at its Buffalo, New York address from ACT and had negotiated a settlement with ACT. Except for the September 2010 and March 2011 calls that plaintiff admittedly initiated, it is unclear who initiated any of the other telephone calls between ACT and plaintiff. Also, it is noted that the only mention in the record of the location of any party when a call was made is in plaintiff's amended verified complaint in which plaintiff stated that she was in New York when she had made the September 2010 call to ACT. In any event, such telephone calls and mailings, without more, are insufficient to establish ACT's transacting of business in New York City within the meaning of the long-arm statute (see CCA 404[a][1] ; Fischbarg v. Doucet, 38 AD3d 270, 279–280 [2007], affd 9 NY3d 375 [2007] ; Stengel v. Black, 28 AD3d 401, 402 [2006] ; Edelman v. Tattinger, S.A., 298 A.D.2d 301 [2002] ; Professional Personnel Mgt. Corp. v. Southwest Med. Assoc., 216 A.D.2d 958 [1995] ; Paradise Prods. Corp. v. Allmark Equip. Corp., 138 A.D.2d 470, 471–472 [1988] ; Bankers Commercial Corp. v. Alto, Inc., 30 A.D.2d 517 [1968] ).
Accordingly, the order is modified by providing that the branch of the motion by defendant All Car Towing seeking to dismiss the complaint, insofar as asserted against it, is granted.
WESTON, J.P., SOLOMON and ELLIOT, JJ., concur.