Opinion
Index No. 503900/2015
02-08-2022
Dunia QUDSI, as Property Guardian of Ayah Qudsi, Dunia Qudsi individually, and Dunia Qudsi, as Proposed Administrator D.B.N. of the Estate of Nour Qudsi, Plaintiffs, v. Felix LARIOS, Clifford B. Finkle, Jr. Inc., and Ryder Truck Rental, Inc., Adel M. Qudsi, Wisam Awwad, and or John/Jane Doe No.1 through No.5 (fictitious names of yet to be identified parties to this litigation), jointly, severally and/or in the alternative, Defendants.
Attorneys for Plaintiffs, Sagar Shah, Esq., Eisenberg & Baum, 24 Union Square East, Penthouse, New York, NY 10003 Attorneys for defendants Felix Larios, Clifford B. Finkle, Jr. Inc., and Ryder Truck Rental, Inc., John M. Downing, Jr., Esq., Downing & Peck, P.C., 17 Battery Place, Suite 324, New York, NY 1004 Attorneys for defendants Wisam Awwad and Adel Qudsi, Dawn K. Shwartz Conville, Esq., The Law Offices of Kevin J. Philbin, Esq., One Whitehall Street, 13th Floor, New York, NY 10004
Attorneys for Plaintiffs, Sagar Shah, Esq., Eisenberg & Baum, 24 Union Square East, Penthouse, New York, NY 10003
Attorneys for defendants Felix Larios, Clifford B. Finkle, Jr. Inc., and Ryder Truck Rental, Inc., John M. Downing, Jr., Esq., Downing & Peck, P.C., 17 Battery Place, Suite 324, New York, NY 1004
Attorneys for defendants Wisam Awwad and Adel Qudsi, Dawn K. Shwartz Conville, Esq., The Law Offices of Kevin J. Philbin, Esq., One Whitehall Street, 13th Floor, New York, NY 10004
Lillian Wan, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of these motions.
The following e-filed documents, listed by NYSCEF document number (Motions 08 and 11) 144-162 and 214-236, were read on these motions seeking dismissal and summary judgment.
In this action seeking to recover damages for personal injuries suffered in a motor vehicle accident that occurred in New Jersey, defendants Felix Larios (Larios) and Clifford B. Finkle, Jr., Inc. (Finkle) move (Motion 08) for an order: 1) pursuant to CPLR § 1003 and a June 12, 2019 Appellate Division decision, amending the caption to strike Larios and Ryder Truck Rental, Inc. on the grounds that said parties have been dismissed from the action with prejudice; and 2) pursuant to CPLR § 3211(a)(8) and a June 12, 2019 Appellate Division decision, dismissing the action as to Finkle, with prejudice; and 3) pursuant to CPLR § 327(a) dismissing the action on the grounds of inconvenient forum. The plaintiffs oppose the motion and cross move (Motion 11) for summary judgment on the issue of liability. After oral argument and a consideration of the parties’ submissions, Motion 08 is granted as set forth below, and Motion 11 is denied.
The defendants previously made a similar motion to dismiss under CPLR §§ 3211 and 327(a) (Motion 03). In a Decision and Order dated June 19, 2017, Justice Johnny Lee Baynes dismissed the complaint as against Ryder Truck Rental, Inc., but denied the motion to dismiss with leave to renew upon completion of discovery as against co-defendants Finkle and Larios on the grounds that there may be personal jurisdiction against them in New York. See NYSCEF Doc. No. 75. Justice Baynes also stated that the Court may not dismiss based on inconvenient forum without first determining whether personal jurisdiction exists, and that it was premature to apply New Jersey law at the time of the decision. This decision was appealed, and in a decision dated June 12, 2019, the Appellate Division, Second Department, reversed the lower court's decision as to Larios, stating that he should have been dismissed from the action on the grounds Larios established that "he himself had not conducted business in New York in connection with the subject load, and the plaintiff failed to establish that further discovery was warranted with respect to that issue." Qudsi v Larios , 173 AD3d 920, 923 (2d Dept 2019) ; see NYSCEF Doc. No. 108.
With respect to that prong of the defendants’ motion seeking dismissal as to Finkle based on CPLR § 302(a)(1), the Court agreed with Justice Baynes’ denial of the motion as premature. Specifically, the Court noted that Finkle admitted to having four New York terminals at which it parked its vehicles, and that "given Finkle's failure to submit trip logs, manifests, or other documentary evidence to support its assertion that the load Larios was transporting was being shipped within the State of New Jersey and had no relationship to Finkle's New York business," the defendants could renew the motion upon completion of discovery. Qudsi at 923.
In the companion case, Awwad v. Larios , Index No. 505556/2015, which was joined with the instant matter, Justice Lawrence Knipel issued an order dated January 20, 2021, stating that Finkle was "precluded from contesting jurisdiction or from testifying at trial or submitting [an] affidavit in any summary judgment motion with regard to any issues that relate to trip logs, manifests, or documentary evidence to support the assertion that the load Larios was transporting was being shipped within the state of New Jersey." See NYSCEF Doc. No. 221. However, in the instant matter, Justice Knipel issued an order dated June 30, 2021, stating that the plaintiffs’ motion to strike Finkle's answer and preclude this defendant from contesting jurisdiction was denied, and that plaintiffs had not established that the preclusion order issued in the companion case should apply to the instant matter. See NYSCEF Doc. No. 212.
The defendants seek an order amending the caption, dismissing the action as to defendant Finkle based on lack of personal jurisdiction, and dismissal based on inconvenient forum. The defendants assert that they would stipulate to the filing of the instant action in New Jersey, without contesting jurisdiction or the timeliness of the filing of the action. In support of the motion, the moving defendants submit, inter alia, the pleadings in this action and in a prior related New Jersey action, copies of prior orders, responses to discovery demands by the defendant, the deposition transcript of James Finkle, who was a manager with Finkle at the time of the accident, and Clifford B. Finkle, IV, the Vice President of Finkle when the accident occurred, the sworn affidavits of Felix Larios, dated September 11, 2015, and Clifford B. Finkle, IV, dated February 9, 2015, as well as unsworn and uncertified copies of New Jersey Police Department documentation related to the subject accident.
Defendants argue that Ryder and Mr. Larios should be stricken from the caption on the ground that they have been dismissed from the case. The defendants further contend that this Court should also dismiss the action as to Finkle pursuant to CPLR § 3211(a)(8) because the load that was being transported at the time of the accident had no connection to New York. Defendants assert that Finkle has established that the cause of action did not arise from any New York transaction or activity, New York contract, or New York service. The defendants maintain that New York would be an inconvenient forum, as nearly all of the witnesses to the action live or work in New Jersey.
In opposition and support of its cross motion, the plaintiffs submit, inter alia, the pleadings and bill of particulars, the deposition transcript of co-defendant Wisam Awwad, and copies of prior orders. The plaintiffs contend that Finkle has still failed to provide trip logs, manifests or other documentary evidence to support its assertion that the load Larios was transporting was being shipped within the State of New Jersey, and had no relationship to Finkle's New York business. The plaintiffs also assert that the companion action remains and will be tried in New York, and that this action should remain and be tried in New York as well. The plaintiffs argue that this Court is bound in this action by the order precluding Finkle from contesting jurisdiction in the companion action. The plaintiffs further argue that Finkle has failed to offer any evidence in admissible form regarding liability for the accident, as the police accident report is uncertified, unsworn and unsupported by any deposition testimony.
Pursuant to CPLR § 1003, "[p]arties may be dropped by the court, on motion of any party or on its own initiative, at any stage of the action and upon such terms as may be just." Furthermore, pursuant to CPLR § 327(a) :
When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action.
In Qudsi v Larios , 173 AD3d 920, 923 (2d Dept 2019), the Appellate Division, Second Department stated as follows:
In order to determine whether personal jurisdiction exists under CPLR 302(a)(1), the court must determine (1) whether the defendant "purposefully availed itself of the privilege of conducting activities within the forum State by either transacting business in New York or contracting to supply goods or services in New York" ( D & R Global Selections, S.L. v Bodega Olegario Falcon Pineiro , 29 NY3d 292, 297, quoting Rushaid v Pictet & Cie, 28 NY3d 316, 323 ) (internal quotation marks omitted), and (2) whether the claim arose from that business transaction or from the contract to supply good [sic] or services ( D & R Global Selections, S.L. v Bodega Olegario Falcon Pineiro , 29 NY3d at 297 ; Rushaid v Pictet & Cie , 28 NY3d at 323 ).
To satisfy the second prong of this test, "there must be an ‘articulable nexus’ or ‘substantial relationship’ between the business transaction and the claim asserted." Licci v Lebanese Can. Bank , SAL , 20 NY3d 327, 339 (2012) (internal citations omitted); see also McGowan v Smith , 52 NY2d 268, 272 (1981) ; Kreutter v McFadden Oil Corp. , 71 NY2d 460 (1988). Although a plaintiff is not required to plead and prove personal jurisdiction, where jurisdiction is contested, "the ultimate burden of proof rests upon the plaintiff" (internal quotation marks omitted). See Pichardo v Zayas , 122 AD3d 699 (2d Dept 2014). The Court of Appeals has held that the second prong of CPLR § 302(a)(1) may be satisfied when a plaintiff establishes a nexus between the purported transactions of business in New York and the negligence claim. See Johnson v Ward , 4 NY3d 516 (2005). Although causation is not required, the Court of Appeals has stated that "at minimum [there must be] a relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former, regardless of the ultimate merits of the claim." Licci at 339. Where the relatedness is lacking the claim may be "too attenuated" or "merely coincidental" with it. Johnson at 520.
Here, the plaintiffs have failed to establish that the second prong of CPLR § 302(a)(1) has been satisfied. Discovery conducted subsequent to the decision of the Appellate Division, Second Department in the form of the affidavit of Clifford B. Finkle, IV, copies of the contract between the United States Postal Service and Finkle, under which Larios was driving on the date of the accident, as well as the deposition testimony of James Finkle and Clifford B. Finkle, IV, show that the load that Larios was transporting was being shipped within the State of New Jersey, and had no relationship to Finkle's New York activities. Further, the evidence shows that the claim did not arise from the contract to supply goods or services. According to the affidavit of Clifford B. Finkle, IV, the contract "entailed hauling to and from southern New Jersey and northern New Jersey only" and "there was absolutely no New York-related portion of said trip or contract." The affidavit also averred that "[t]here are no manifests or trip logs for Mr. Larios’ trip on September 26, 2014 because since the run was purely intra-state for the U.S. Postal Service, such documents were not required." The earlier affidavit of Larios also attests that the load he was transporting was picked up and dropped off in New Jersey. Under the circumstances presented here, the relationship between the causes of action asserted in the complaint and Finkle's activities within New York were too insubstantial and "merely coincidental" to warrant the exercise of personal jurisdiction over it pursuant to CPLR § 302(a)(1). Johnson at 520; see also Pichardo v Zayas , 122 AD3d 699.
The plaintiffs’ argument that discovery orders issued in the companion action should control is also unavailing, as the prior June 30, 2021 order of Justice Knipel states that the preclusion order is not applicable in the instant matter. In any event, this argument does not address the jurisdictional defect at issue.
As the motion to dismiss the complaint as to Clifford B. Finkle, Jr. Inc. is granted, the plaintiffs’ motion for summary judgment (Motion 11) is denied as moot.
The remaining contentions are without merit.
Accordingly, it is hereby
ORDERED , that the defendants’ motion (Motion 08) is GRANTED to the extent that the complaint is dismissed as against Clifford B. Finkle, Jr., Inc., without prejudice to commencing an action in New Jersey, on the ground that there is no personal jurisdiction in the State of New York over this defendant, and the caption is amended striking Felix Larios and Ryder Truck Rental, Inc. as defendants. The movants are directed to settle an order on notice amending the caption within 30 days of the date of this order; and it is further
ORDERED , that the plaintiffs’ motion for summary judgment (Motion 11) is DENIED as moot.
The remaining contentions are without merit.
This constitutes the decision and order of the Court.