Metro Fuel Oil Corp. v Broadway Hgts. Dairy, Inc.

[*1] Metro Fuel Oil Corp. v Broadway Hgts. Dairy, Inc. 2012 NY Slip Op 51663(U) Decided on August 27, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 27, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-1868 Q C.

Metro Fuel Oil Corp., Respondent,

against

Broadway Heights Dairy, Inc., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered May 3, 2011. The order denied defendant's motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant's motion to dismiss the complaint is granted.

In this action based on a breach of contract and an account stated, defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground that the court lacked jurisdiction over defendant. In support of the motion, defendant's president alleged, among other things, that the parties had entered in a contract for the delivery of oil to defendant's place of business located in Bay Shore, Suffolk County, and that defendant has never maintained offices outside of Suffolk County. Defendant's president further asserted that defendant has no contacts with, and has not transacted business in, Queens County. He further stated that the contract which is the subject of this action was executed in Suffolk County. The Civil Court denied the motion.

Where a defendant moves to dismiss an action on jurisdictional grounds, and such a challenge appears to have merit, the plaintiff has the burden of proving that jurisdiction has been [*2]properly obtained (see Fischbarg v Doucet, 9 NY3d 375 [2007]). In order for plaintiff to prove that the Civil Court had obtained personal jurisdiction over defendant, a corporation which is not a resident of the City of New York, plaintiff was required to establish, as to the alleged cause of action, that defendant either transacted business, contracted to supply good or services, committed a tortious act or used or possessed any real property within the City of New York. Since plaintiff failed to establish any such contacts, the order is reversed and defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 27, 2012