VENEER ONE, INC. v. CUNEO, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1699-05T51699-05T5

VENEER ONE, INC.,

Plaintiff-Respondent,

v.

CUNEO, INC.,

Defendant-Appellant.

________________________________________________________________

 

Submitted July 11, 2006 - Decided July 31, 2006

Before Judges Parker and Sapp-Peterson.

On appeal from the Superior Court of New

Jersey, Law Division, Middlesex County,

Docket No. JD-189081-04.

Tarella & Liftman, attorneys for appellant

(James A. Tarella, of counsel; Beverly E.

Liftman, on the brief).

Respondent did not file a brief.

PER CURIAM

Defendant Cuneo, Inc. appeals from an order entered on October 21, 2005 denying its application to vacate and declare void a New York judgment that plaintiff sought to enforce under the Uniform Enforcement of Foreign Judgments Act, N.J.S.A. 2A:49A-25 to - 33. We reverse.

The facts relevant to this appeal are as follows. Defendant is a New Jersey corporation with its sole place of business in New Brunswick. Plaintiff Veneer One, Inc. is a New York corporation doing business in Oceanside, New York. Defendant designs, fabricates and installs customized library facilities. Plaintiff provided veneer wood products to defendant, which defendant customized for use in its installations.

In the New York complaint, plaintiff alleged that defendant failed to pay for the goods and/or services provided by plaintiff and that defendant owed plaintiff $5,556.94. The New York summons and complaint were duly served on defendant at its New Jersey address. The complaint was not, however, served on defendant's agent for service registered with the New Jersey Department of State. Defendant did not respond in the New York action and a default judgment was entered against it in the amount of $6,449.91. Plaintiff recorded the judgment in New Jersey and sought a Writ of Execution to enforce it. Notice to defendant was served on July 23, 2004.

Defendant moved to vacate the New York judgment on the grounds that the New York court lacked jurisdiction to enter a default judgment against it and that plaintiff failed to comply with the requirements of the Uniform Enforcement of Foreign Judgment Act, N.J.S.A. 2A:49A-28. Defendant's motion was supported by a certification of Frederick Cuneo, President and sole owner of the defendant business. While acknowledging that plaintiff supplied veneer wood products to defendant, Cuneo maintained that all business was done in New Jersey and that defendant had no contacts whatsoever with New York except for "one single occasion, [when] Cuneo, Inc. was forced to go to New York to pick up a shipment because Veneer One had failed to complete the order on time and was unable to deliver as promised." Cuneo stated in his certification that the quality of plaintiff's product had declined and its delivery was unreliable and claimed that plaintiff's outstanding invoices were offset by the cost of replacing the defective products shipped by plaintiff.

Defendant's motion to vacate the New York judgment was denied in an order entered on October 21, 2005. The matter was decided "on the papers" and, in a handwritten note on the order, the motion judge stated that the reason for denial was that there were "sufficient contacts for entry of judgment in New York. No legal or factual basis to vacate judgment."

Since plaintiff has not responded in this action and defendant's representation of the facts is undisputed, we are satisfied that defendant's contacts with New York State were not sufficient to confer personal jurisdiction over defendant to support the entry of a default judgment against it.

Under New York Civil Practice Law (CPLR) 301, the New York court lacked jurisdiction over defendant, which was not licensed to do business in New York, did not directly sell or ship its products to New York, has no offices, facilities or employees in New York, no New York address, telephone number or bank account. Under New York law, a foreign corporation whose only contact with New York is purchasing products from a New York entity is not "doing business" within the State of New York for purposes of establishing jurisdiction under CPLR 301 and 302. CES Indus., Inc. v. Minnesota Transition Charter Sch., 287 F. Supp. 2d 162, 166 (E.D.N.Y. 2003); Dero Enterprises, Inc. v. Georgia Girl Fashions, Inc., 598 F. Supp. 318, 321 (S.D.N.Y. 1984); Pacamor Bearings, Inc. v. Molen Motors & Coil, Inc., 477 N.Y.S.2d 856, 857 (N.Y. App. Div. 1984). Under CPLR 301, "[t]he mere fact that the defendant placed an order with the plaintiff and requested its services does not subject it to New York jurisdiction." CES Indus., supra, 287 F. Supp. 2d at 166.

The New York court lacked jurisdiction over defendant to enter a default judgment against it. Consequently, the judgment is not subject to enforcement in New Jersey under N.J.S.A. 2A:49A-28.

Reversed.

 

(continued)

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5

A-1699-05T5

July 31, 2006