Opinion
Index No. 151034/2023 Motion Seq. No. 002
09-09-2024
OLGA MIREYA RAMIREZ BALBUENA, Plaintiff, v. THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, GERARD ANTHONY CIRILLO, OMAR GARCIA Defendant
Unpublished Opinion
PART 52-M
MOTION DATE 05/21/2024
DECISION + ORDER ON MOTION
HON. JEANINE R. JOHNSON, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 002) 29, 30, 31, 32, 33, 34, 35, 36, 39 were read on this motion to/for DISMISS
Upon the foregoing documents, the Defendant, Omar Garcia's motion pursuant to CPLR § 3211(a)(8), is granted without opposition.
LEGAL STANDARD
CPLR § 3211(a)(8) states, "a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the court has not jurisdiction of the person of the defendant. On a motion to dismiss pursuant to CPLR 3211(a)(8), the Plaintiff has the burden of presenting sufficient evidence, through affidavits and relevant documents, to demonstrate jurisdiction." Coast to Coast Energy, Inc v Gasarch, 149 A.D.3d 485, 486 (1st Dept 2017); See Fischbarg v Doucet, 9 N.Y.3d 375 (2007).
CPLR § 302(a) governs acquiring personal jurisdiction by acts of non-domiciliaries and states, "as to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:
1) transacts any business within the state or contracts anywhere to supply goods or services in the state; or
2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or
3) commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or
4) owns, uses or possesses any real property situated within the state".
ARGUMENT
The Defendant, Omar Garcia, asserts New York courts cannot exercise long-arm personal jurisdiction over him because none of the above statutory conditions pursuant to CPLR § 302(a) are met. Defendant Garcia maintains he is a resident and employed in New Jersey; he does not transact business within New York State; the accident which is the catalyst of this complaint and where the Plaintiff was injured occurred in Eatontown, New Jersey; and he does not own, use, or possess any real property in New York State; therefore, the court does not have jurisdiction over him and the matter must be dismissed. See Zapata v Welder Training &Testing Inst., 2020 NY Slip Op 32034(U) (Sup Ct, Bronx County 2020), Stern v Four Points by Sheraton Ann Arbor Hotel, 133 A.D.3d 514 (1st Dept 2015). The Plaintiff did not oppose Defendant's motion; thus, she failed to present sufficient evidence to demonstrate jurisdiction. Coast, 149 A.D.3d at 486.
Accordingly, it is hereby
ORDERED, that Defendant, Omar Garcia's, motion seeking dismissal of the Plaintiffs action and all cross-claims against him are granted; it is further
ORDERED that the action is severed and continued against the remaining Defendants; it is further
ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; it is further
ORDERED that the caption is amended to read as follows:
OLGA MIREYA RAMIREZ BALBUENA, Plaintiff, v.
THE CITY OF NEW YORK, THE NEW YORK CITY POLICE DEPARTMENT, GERARD ANTHONY CIRILLOO Defendant(s).
it is further;
ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the Clerk of the Court, who are directed to mark the court's records to reflect the change in the caption herein; and it is further
ORDERED that such service upon the Clerk of the Court shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website).
This constitutes the Decision and Order of the court.