Opinion
2014-02-18
SUNLIGHT GENERAL CAPITAL LLC, Plaintiff–Appellant, v. CJS INVESTMENTS INC., et al., Defendants–Respondents, Effisolar Energy Corporation, Defendant.
Nixon Peabody LLP, New York (Frank H. Penski of counsel), for appellant. Herrick, Feinstein LLP, New York (Jeffrey I. Wasserman of counsel), for respondents.
Nixon Peabody LLP, New York (Frank H. Penski of counsel), for appellant. Herrick, Feinstein LLP, New York (Jeffrey I. Wasserman of counsel), for respondents.
SWEENY, J.P., RENWICK, MOSKOWITZ, RICHTER, GISCHE, JJ.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered June 27, 2013, which granted defendants CJS Investments Inc. and Clean Jersey Solar LLC's motion, pursuant to CPLR 3211(a)(8), for dismissal of the complaint as against them, unanimously affirmed, with costs.
In this action, plaintiff SunLight General Capital LLC, a New York corporation, seeks, inter alia, recovery for damages allegedly incurred as a result of defendants' breaches of contract and tortious interference. Defendants CJS Investments Inc. (CJS) and Clean Jersey Solar LLC (Clean Jersey) are New Jersey entities, with offices and employees located solely within the State of New Jersey, and whose alleged actions herein occurred with the State of New Jersey. The contractual claims, as against CJS arise out of CJS's entry into a memorandum of understanding (MOU) with plaintiff which contemplated a joint venture whose business was to consist of the development of solar energy facilities on New Jersey properties owned by CJS. All of the meetings between plaintiff and CJS took place in New Jersey, and the MOU contained a New Jersey choice-of-law provision.
The fact that CJS negotiated the terms of the MOU and communicated with plaintiff via email and telephone, which communications do not serve as the basis for plaintiff's claims, is insufficient to constitute the transaction of business within New York ( seeCPLR 302(a)(1); Arouh v. Budget Leasing, Inc., 63 A.D.3d 506, 883 N.Y.S.2d 4 [1st Dept.2009];Warck–Meister v. Diana Lowenstein Fine Arts, 7 A.D.3d 351, 775 N.Y.S.2d 859 [1st Dept.2004];Granat v. Bochner, 268 A.D.2d 365, 702 N.Y.S.2d 262 [1st Dept.2000] ). Plaintiff's actions within New York, including making presentations to potential investors and executing the MOU, cannot be imputed to CJS for jurisdictional purposes ( see Royalty Network, Inc. v. Harris, 95 A.D.3d 775, 947 N.Y.S.2d 53 [1st Dept.2012];see also Standard Wine & Liq. Co. v. Bombay Spirits Co., 20 N.Y.2d 13, 17, 281 N.Y.S.2d 299, 228 N.E.2d 367 [1967];Libra Global Tech. Servs. (U.K.) v. Telemedia Intl., 279 A.D.2d 326, 719 N.Y.S.2d 53 [1st Dept.2001] ). Accordingly, plaintiff's breach of contract and breach of duty of fair dealing claims were properly dismissed as against CJS.
Likewise, dismissal of the tortious interference claims asserted against CJS and Clean Solar was proper. Plaintiff cannot establish personal jurisdiction, pursuant to CPLR 302(a)(3)(ii), in the absence of evidence that these defendants “derive[ ] substantial revenue from interstate or international commerce.”
Finally, plaintiff failed to make a “sufficient start,” via tangible evidence, in demonstrating that long-arm jurisdiction may exist over these defendants, and thus, jurisdictional discovery is not warranted ( see Insurance Co. of N. Am. v. EMCOR Group, Inc., 9 A.D.3d 319, 320, 781 N.Y.S.2d 4 [1st Dept.2004];Granat v. Bochner, 268 A.D.2d at 365, 702 N.Y.S.2d 262).