Opinion
200396/09.
Decided June 17, 2010.
Matthew Muraskin, Esq., Attorney for Plaintiff, Coram, NY.
Law Office of Elliot Schlissel, By: Andrea E. Miller, Esq., Attorney for Defendant, Lynbrook, NY.
This motion by defendants pursuant to CPLR 3211 (2) and (8) dismissing the complaint on the ground that the Court does not have personal jurisdiction over the defendant, and that New York courts are barred from modifying another state's divorce decree pursuant to the Family Court Act § 580-205(f), and for reimbursement of attorney's fees is granted on the ground that this Court does not have jurisdiction over the person of the defendant, and the complaint is dismissed.
The plaintiff, Michael Kay, is domiciled and resides in Point Lookout, New York. The defendant Linda Kay is domiciled and resides in Fort Francis, Ontario, Canada. The plaintiff and the defendant were married on March 22, 1991 in Hamilton, Ontario and divorced on January 22, 1999 in the county of Koochiching, Minnesota. Under the Minnesota divorce decree, the plaintiff was required, among other things, to provide the defendant with $2,000 in permanent monthly maintenance and to maintain in force a $200,000 life insurance policy in defendant's favor as beneficiary.
In 1999, the plaintiff owed the defendant approximately $46,000, consisting of approximately twelve months of unpaid maintenance and $20,000 for defendant's interest in the marital home. According to the plaintiff, negotiations by telephone and mail between the defendant's then-residence in International Falls, Minnesota and the plaintiff's residence in New York took place during which the parties agreed that the plaintiff would send the defendant $44,500, and in exchange the defendant would release the plaintiff of any further liability under the divorce decree. After these negotiations the plaintiff mailed defendant a check for $44,500, and upon its receipt the defendant mailed the plaintiff a letter dated February 1, 2000, bearing the International Falls, Minnesota address under her signature, indicating that she had received the money and that the plaintiff was released of all liability under the decree.
The plaintiff thereafter discontinued maintenance payments and the $200,000 life insurance policy. However, in December 2008, the defendant's attorney, located in Minnesota, sent a letter to the plaintiff, seeking a resumption of maintenance payments and revival of the life insurance policy.
On February 9, 2009, the plaintiff commenced this action in New York, requesting that the Court amend the divorce decree issued by the Minnesota Court, in effect releasing him from further liability under the decree pursuant to the letter sent to him by defendant on February 1, 2000. The defendant, then acting pro se, served a "Special Appearance" on plaintiff's attorney dated May 1, 2009, contesting the jurisdiction of the New York court, and in that same paper "without making an appearance or submitting to the jurisdiction of the Court" answered the complaint by denying each allegation. Upon the filing of an amended request for judicial intervention, a preliminary conference was held on July 27, 2009, and several compliance and certification conferences followed, but without any withdrawal by defendant of the jurisdictional objection.
By notice of motion dated March 11, 2010, the defendant moved pursuant to CPLR § 3211 (a) (2) and (8), for an order dismissing the complaint based upon lack of jurisdiction. Initially, the Court agrees with the defendant that CPLR 302 (b) can not serve as a basis for jurisdiction over her as a non-domiciliary, non-resident defendant because that section by its terms can be utilized only if a
"party seeking support is a resident of or domiciled in this state at the time such demand is made, provided that this state was the matrimonial domicile of the parties before their separation, or the defendant abandoned the plaintiff in this state, or the claim for support, alimony, maintenance, distributive awards or special relief in matrimonial actions accrued under the laws of this state or under an agreement executed in this state."
As the plaintiff makes no factual claim that New York was the matrimonial domicile, or that he was abandoned here, the only possible bases would be the last two. However, the agreement upon which the plaintiff has grounded his suit was never "executed" in this state (even assuming, for the moment, that some verbal understanding could be deemed made in
New York); the only "executed" writing before the Court was signed in another jurisdiction, Minnesota. Further, no where does the plaintiff allege that there was any agreement (written or verbal) that the laws of New York and not Minnesota would apply to the agreement regarding the effect such agreement would have on the Minnesota decree.
That is to say, signed — see Black's Law Dictionary 344 (8th ed 2004).
Accordingly, the plaintiff must rely on CPLR 302(a).
A review of the plaintiff's submission indicates that he is predicating this Court's jurisdiction upon CPLR 302 [a] [1]. CPLR 302 [a] [1] states, in relevant part, that "a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent . . . transacts any business within the state or contracts anywhere to supply goods or services in the state . . ." Integral to maintaining a suit against a non-domiciliary under CPLR 302[a][1] is the "existence of some articulable nexus between the business transacted and the cause of action sued upon". McGowan v Smith, 52 NY2d 268 (1981).
This provision of law has been deemed a "single act statute" where evidence of only one transaction is sufficient to invoke long arm jurisdiction, even though 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 claims asserted". Kreutter v McFadden Oil Corp., 71 NY2d 460 (1988); Johnson v Ward , 4 NY3d 516 (2005); Deutsche Bank Securities, Inc. v Montana Board of Investments, 7 NY3d 65 (2006); McGowan v Smith, 52 NY2d 268, supra. However, where the party has not purposefully availed herself of the privilege of doing business within the state, jurisdiction over a non-domiciliary will not be sustained. Hanson v Denckla, 78 S Ct 1228, 1239 (1958).
Where, as here, the defendant has moved to dismiss the complaint pursuant to CPLR 3211[a][8] on the ground of lack of personal jurisdiction, a plaintiff is only required to make a prima facie demonstration that such jurisdiction exists. Lang v Wycoff Heights Medical Center, 55 AD3d 793 (2d Dept 2008); Cornely v Dynamic HVAC Supply, LLC , 44 AD3d 986 (2d Dept 2007). However, the Court, upon a review of the record, finds that the plaintiff has failed to make such a prima facie demonstration that the defendant chose to take part in a transaction between herself and the plaintiff in New York State. It therefore concludes that he has failed to show that the defendant purposefully availed herself of the privilege of conducting business within the State. Erenfeld v Mahfouz, 9 NY3d 501, 508 (2007).
The plaintiff contends that the defendant had transacted business in New York as a result of making the agreement with him, and her return of the confirmation letter to New York. However, a contract which is the product of earlier negotiation is given effect when acceptance is sent to the offeror, rather than when the offer or by prior act sets out terms and seeks such acceptance. See, Insurance Corp. of Ireland Ltd. v KCC New York Syndicate Corp., 174 AD2d 362, 362 (1st Dept. 1991). Put somewhat differently, a contract is deemed to be formed in the location where its acceptance was spoken or made. Restatement [Second] of Contracts § 64; U.S. v Bushwick Mills, 165 F2d 198, 202 (2d Cir 1947).
Here, there could have been no binding agreement until the money offered was accepted, and the letter containing the release was sent in return. It also should be noted that there is authority for the proposition that when acceptance of a contract is sent between two states, the place of contracting is deemed to be the state from which the acceptance was sent, rather than the one in which it is received. Restatement (First) of Conflicts of Law § 326; Bushwick Mills, 165 F2d 198, supra, at 202. Therefore, a contract was formed between the parties, if at all, in Minnesota, where the defendant received the payment from the plaintiff, and then mailed the acceptance letter to the plaintiff from that State. Insurance Corp. of Ireland Ltd. v KCC New York Syndicate Corp., 174 AD2d 362 (1st Dept. 1991). A contract formed and executed in Minnesota does not constitute a substantial transaction in New York and therefore does not constitute a sustained and substantial transaction. The plaintiff thus has not shown that the defendant purposefully availed herself of the privileges of doing business in New York and of making use of its laws. Fischbarg v Doucet , 9 NY3d 375 (2007).
Based upon the foregoing, the defendant's motion pursuant to CPLR 3211 (a) (8) for an order dismissing the plaintiff's complaint based upon lack of jurisdiction is hereby granted and the plaintiff's complaint is dismissed.
In view of this determination, the Court does not reach the other basis for dismissal advanced by the defendant. So much of the motion that seeks attorney's fees is denied, as no basis therefor has been demonstrated by the defendant.
The conference scheduled for July 7, 2010 is canceled.
This shall constitute the Decision and Order of this Court.