Opinion
1465 CA 18–00646
03-22-2019
Kenneth GLAZER, Individually, and as Administrator of the Estates of Laurence Glazer and Jane Glazer, Deceased, Plaintiff–Appellant, and Catlin Insurance Company, Inc., Plaintiff–Intervenor, v. SOCATA, S.A.S., et al., Defendants, Liebherr–Aerospace Toulouse SAS, and Liebherr–Elektronik GMBH, Defendants–Respondents.
KREINDLER & KREINDLER LLP, NEW YORK CITY (DANIEL O. ROSE OF COUNSEL), FOR PLAINTIFF–APPELLANT. WILLCOX & SAVAGE, P.C., NORFOLK, VIRGINIA (KEVIN L. KELLER, OF THE VIRGINIA BAR, ADMITTED PRO HAC VICE, OF COUNSEL), AND HARRIS BEACH PLLC, BUFFALO, FOR DEFENDANTS–RESPONDENTS.
KREINDLER & KREINDLER LLP, NEW YORK CITY (DANIEL O. ROSE OF COUNSEL), FOR PLAINTIFF–APPELLANT.
WILLCOX & SAVAGE, P.C., NORFOLK, VIRGINIA (KEVIN L. KELLER, OF THE VIRGINIA BAR, ADMITTED PRO HAC VICE, OF COUNSEL), AND HARRIS BEACH PLLC, BUFFALO, FOR DEFENDANTS–RESPONDENTS.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Kenneth Glazer, individually, and as administrator of the estates of Laurence Glazer and Jane Glazer, deceased (plaintiff), appeals from an order that, insofar as appealed from as limited by the brief, granted that part of the motion of defendants Liebherr–Aerospace Toulouse SAS (Aerospace) and Liebherr–Elektronik GMBH seeking to dismiss the amended complaint against Aerospace for lack of personal jurisdiction.
On September 5, 2014, plaintiff's decedents departed the Rochester airport for Florida in an aircraft. During the flight, the plane's cabin allegedly depressurized and caused plaintiff's decedents to lose consciousness, which eventually resulted in a fatal plane crash in open water off the coast of Jamaica. The aircraft was manufactured by defendant Socata, S.A.S. (Socata), a French corporation, and the pressurization system was manufactured by Aerospace, also a French corporation. In his amended complaint, plaintiff alleged, inter alia, that Aerospace was liable for the wrongful death of plaintiff's decedents under theories of negligence, strict product liability, and breach of implied warranty.
On appeal, plaintiff contends that personal jurisdiction over Aerospace was established through Aerospace's contract with Socata to provide the cabin pressurization system. Specifically, plaintiff contends that the contract required Aerospace to provide warranty services in New York for its cabin pressurization system, notwithstanding the fact that such services were never actually provided in New York.
CPLR 302(a)(1) permits New York courts to exercise personal jurisdiction over any entity that "in person or through an agent ... transacts any business within the state or contracts anywhere to supply goods or services in the state." Jurisdiction can attach on the basis of one transaction, even if the defendant never enters the state, " ‘so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted’ " ( Fischbarg v. Doucet , 9 N.Y.3d 375, 380, 849 N.Y.S.2d 501, 880 N.E.2d 22 [2007] ; see Deutsche Bank Sec., Inc. v. Montana Bd. of Invs. , 7 N.Y.3d 65, 71, 818 N.Y.S.2d 164, 850 N.E.2d 1140 [2006], cert denied 549 U.S. 1095, 127 S.Ct. 832, 166 L.Ed.2d 665 [2006] ). "Purposeful" activities are those by which a defendant, "through volitional acts, ‘avails itself of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws’ " ( Fischbarg , 9 N.Y.3d at 380, 849 N.Y.S.2d 501, 880 N.E.2d 22 ; see Cellino & Barnes, P.C. v. Martin, Lister & Alvarez, PLLC , 117 A.D.3d 1459, 1461, 985 N.Y.S.2d 776 [4th Dept. 2014], lv dismissed 24 N.Y.3d 928, 993 N.Y.S.2d 539, 17 N.E.3d 1135 [2014] ).
Initially, we conclude that plaintiff preserved for our review his contention that plaintiff's decedent Laurence Glazer (Laurence) was a third-party beneficiary to the contract between Socata and Aerospace. Nonetheless, we reject plaintiff's attempt to use that theory to establish that Aerospace contracted to supply services in New York and therefore is subject to personal jurisdiction under CPLR 302(a)(1). To establish that Laurence was a third-party beneficiary, plaintiff has to show, among other things, "that the contract was intended for [Laurence's] benefit" ( Mandarin Trading Ltd. v. Wildenstein , 16 N.Y.3d 173, 182, 919 N.Y.S.2d 465, 944 N.E.2d 1104 [2011] ; see Logan–Baldwin v. L.S.M. Gen. Contrs., Inc. , 94 A.D.3d 1466, 1468, 942 N.Y.S.2d 718 [4th Dept. 2012] ). Here, however, the contract for the purchase and sale of the cabin pressurization system was clearly intended for the benefit of the contracting parties. While it obliged Aerospace to provide certain warranty services to customers who purchased planes manufactured by Socata, the ultimate beneficiaries were the contracting parties (cf. Logan–Baldwin , 94 AD3d at 1469, 942 N.Y.S.2d 718 ). Customers, such as Laurence, were at most incidental beneficiaries (see Cole v. Metropolitan Life Ins. Co. , 273 A.D.2d 832, 833, 708 N.Y.S.2d 789 [4th Dept. 2000] ; Baker v. Community Fin. Servs. , 217 A.D.2d 979, 980, 629 N.Y.S.2d 919 [4th Dept. 1995] ).
For the same reason, we conclude that the contract does not establish purposeful conduct on the part of Aerospace to provide services in New York. The purpose of the contract was for Aerospace to provide cabin pressurization systems to Socata to include in the aircraft that it manufactured. Inasmuch as Aerospace's purposeful activity consisted of contracting with Socata to provide a component to the manufacturing of a plane that happened to end up in New York, that activity does not subject Aerospace to personal jurisdiction in New York (see generally Fischbarg , 9 N.Y.3d at 380, 849 N.Y.S.2d 501, 880 N.E.2d 22 ).
Plaintiff further contends that he is entitled to discovery on the issue of jurisdiction. We reject that contention inasmuch as plaintiff has not made a nonfrivolous showing "that facts may exist to exercise personal jurisdiction" over Aerospace ( Williams v. Beemiller, Inc. , 100 A.D.3d 143, 153, 952 N.Y.S.2d 333 [4th Dept. 2012], amended on rearg 103 A.D.3d 1191, 962 N.Y.S.2d 834 [4th Dept. 2013] [internal quotation marks omitted]; see CPLR 3211[d] ; Peterson v. Spartan Indus. , 33 N.Y.2d 463, 467, 354 N.Y.S.2d 905, 310 N.E.2d 513 [1974] ). Although plaintiff contends that the possibility of an Aerospace-related aviation maintenance company located in New York warrants further discovery, we conclude that plaintiff failed to make the requisite nonfrivolous showing (cf. Peterson , 33 N.Y.2d at 467, 354 N.Y.S.2d 905, 310 N.E.2d 513 ; Williams , 100 A.D.3d at 153–154, 952 N.Y.S.2d 333 ).