Opinion
Index No. 950045/2021
04-12-2023
N. S. Plaintiff, v. WILLIAM P. FRANKENHOFF, Defendant.
Unpublished Opinion
PRESENT: HON. LAURENCE L. LOVE Justice.
DECISION + ORDER ON MOTION
LAURENCE L. LOVE, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21,22, 23, 24, 25, 26, 27, 28, 29, 30, 31 were read on this motion to/for DISMISS.
Upon the foregoing documents, Defendant's motion seeking an Order pursuant to CPLR 3211(a)(8), dismissing this action for lack of jurisdiction over defendant is decided as follows:
Plaintiff, NS commenced the instant action by filing a summons and complaint on February 4, 2021, alleging that on July 7, 2019, defendant, William P. Frankenhoff raped plaintiffin a hotel room in Monte Carlo, Monaco. Said complaint alleges that defendant is a citizen and resident of New York and transacts business in New York related to the alleged rape and as such, jurisdiction is available pursuant to CPLR §§ 301 and 302(a)(1). Said complaint further alleges that the parties went to defendant's apartment and then flew together to Monte Carlo on July 4, 2019. Arising from same, plaintiff pled causes of action for Sexual Abuse, Battery, Assault, and Domestic Violence. As described in the affidavit of service, defendant was served pursuant to CPLR § 308(2) by delivering a copy of the summons to defendant's doorman at 19 East 72 Street, New York, NY 10021 on March 6, 2021 and mailing a copy of the summons and complaint to defendant at said address, Apartment, 6A on March 9, 2021.
Defendant now moves to dismiss arguing that there is no basis for jurisdiction pursuant to CPLR §§301 and 302(a)(1) and that defendant has not been served properly pursuant to CPLR § 308. In support of said motion, defendant submits an affirmation pursuant to CPLR § 2106(b), together with a Hungarian Residency Permit issued March 12, 2014 granting defendant permission to reside in Hungary until January 27, 2017, a copy of a deed showing ownership of an apartment in Budapest, Hungary, utility bills for said apartment, and proof that the parties travelled together from Newark International Airport to Nice, France on July 4, 2019. Said affirmation states that defendant moved to Hungary in 2009, gave up his New York City apartment and purchased an apartment in Budapest in 2013, returning to New York only on vacations.
As it is undisputed that defendant's driver's license identifies 19 East 72 Street, New York, NY 10021, Apartment 6A as his address in 2016, seven years after he allegedly immigrated to Hungary, he is estopped from denying same for the purposes of proper service and as such, this action will not be dismissed on said grounds, See, Kandov v. Gondal, 11 A.D.3d 516 (2d Dept. 2004); Stillman v. City of New York, 39 A.D.3d 301 (1st Dept. 2007), however same is not necessarily sufficient to establish personal jurisdiction over defendant.
As discussed in Chen v. Guo Liang Lu, 144 A.D.3d 735 (2d Dept. 2016)
CPLR 301 provides that "[a] court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore" (CPLR 301; see Pichardo v. Zayas, 122 A.D.3d 699, 702, 996 N.Y.S.2d 176)." '[T]he bases for jurisdiction recognized by our common law before the date of the enactment of the CPLR [were] physical presence within the State, domicile or consent' (Pichardo v. Zayas, 122 A.D.3d at 702, 996 N.Y.S.2d 176, quoting Matter of Nilsa B.B. v. Clyde Blackwell H., 84 A.D.2d 295, 303, 445 N.Y.S.2d 579).
"[D]omicile means 'living in [a] locality with intent to make it a fixed and permanent home'" (King v. Car Rentals, Inc., 29 A.D.3d 205, 210, 813 N.Y.S.2d 448, quoting Matter of Newcomb, 192 N.Y. 238, 250, 84 N.E. 950). It is the place" 'where one always intends to return to from wherever one may be temporarily located'" (King v. Car Rentals, Inc.,
29 A.D.3d at 210, 813 N.Y.S.2d 448, quoting Laufer v. Hauge, 140 A.D.2d 671, 672, 528 N.Y.S.2d 878). An individual may have multiple residences, but only one domicile (see Rawstorne v. Maguire, 265 N.Y. 204, 208, 192 N.E. 294; Matter of Newcomb, 192 N.Y. at 250, 84 N.E. 950; Laufer v. Hauge, 140 A.D.2d at 672, 528 N.Y.S.2d 878). In making a determination as to a defendant's domicile, examination of the defendant's intent to permanently reside in a given locality is essential (see Matter of Newcomb, 192 N.Y. at 250-251, 84 N.E. 950; King v. Car Rentals, Inc., 29 A.D.3d at 211, 813 N.Y.S.2d 448; Laufer v. Hauge, 140 A.D.2d at 673, 528 N.Y.S.2d 878). In this respect, courts must look to the defendant's intent as it existed at the time the plaintiff commenced the action (see Keane v. Karnin, 94 N.Y.2d 263, 266, 701 N.Y.S.2d 698, 723 N.E.2d 553). Where the defendant is not domiciled in New York at the time the action is commenced, New York courts lack personal jurisdiction over the defendant on that basis (see id. at 266, 701 N.Y.S.2d 698, 723 N.E.2d 553).
As further discussed in Chern.
Pursuant to CPLR 302(a), the court may exercise personal jurisdiction over a nondomiciliary who "transacts any business within the state or contracts anywhere to supply goods or services in the state" (CPLR 302 [a] [1]). The transaction of business is established where it is shown that a" 'defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted'" (Kimco Exch. Place Corp. v. Thomas Benz, Inc., 34 A.D.3d 433, 434, 824 N.Y.S.2d 353, quoting Deutsche Bank Sec., Inc. v. Montana Bd. oflnvs., 7 N.Y.3d 65, 71, 818 N.Y.S.2d 164, 850 N.E.2d 1140; see Ehrenfeld v. Bin Mahfouz, 9 N.Y.3d 501, 508, 851 N.Y.S.2d 381, 881 N.E.2d 830; Talbot v. Johnson Newspaper Corp., 71 N.Y.2d 827, 829, 527N.Y.S.2d 729, 522 N.E.2d 1027; Jacobs v. 201 Stephenson Corp., 138 A.D.3d 693, 694, 30 N.Y.S.3d 134; Paterno v. Laser Spine Inst., 112 A.D.3d at 39-40, 973 N.Y.S.2d 681).
Plaintiff argues that defendant is subject to general jurisdiction in New York based upon his voter registration and drivers license, both of which list the East 72nd Street apartment as his address, citing Matter of Glickman v. Laffin, 27 N.Y.3d 810, 814 (2016). Said case is inapplicable as same examines voter registration for electoral residency purposes, not jurisdictional purposes. A United States citizen living abroad is entitled to vote in federal elections and registers with the county board of elections of their most recent New York residence. Likewise, the New York Dept, of Motor Vehicles allows licensees living abroad to renew their driver's licenses. Plaintiff s further allegations that defendant called her from a landline associated with the apartment and spent time with her in New York prior to the flight to Monte Carlo are also not indicative of residency for jurisdictional purposes, See also, Keane v. Karnin, 94 N.Y.2d 263 (1999).
Plaintiff contends that CPLR 302(a)(1) confers jurisdiction in this action as defendant engaged in a lengthy series of communications targeted at plaintiffin New York seeking to induce plaintiff to accompany him to Monte Carlo, citing Lebel v. Tello, 272 A.D.2d 103, 104 (1st Dept. 2000) for the proposition that CPLR 302(a)(1) may be invoked in tort actions. In Lebel, the Court in New York properly exercised jurisdiction over torts involving a plane crash which occurred in Santa Fe, New Mexico as the underlying contract for the sale of said plane occurred in New York and the contract for same included the cross-country flight. Here, it cannot be said that defendant either transacted business within New York or contracted to supply goods or services in New York. None of defendant's actions constitute the transaction of business including the flight from Newark, New Jersey to Nice, the tickets for which were purchased in Hungary, from an entity located in Washington State for travel between locations that are not New York. Further, even if defendant had engaged in the transaction of business, an act of sexual assault in a foreign country is completely unrelated to that economic activity.
ORDERED that defendant's motion is GRANTED in its entirety and this action is DISMISSED.