Baker v Stassi
Annotate this CaseDecided on January 11, 2006
Nassau District Court
Michael Baker, Plaintiff,
against
Brian Stassi, Defendant.
28299/05
F.J. Romano & Associates, P.C., for defendant.
David H. Ledgin, Esq., for plaintiff.
Scott Fairgrieve, J.
The defendant moves for an order dismissing the action or, in the alternative, pursuant to UDCA 301 and 306 transferring this action to the Sixth District Court in the County of Suffolk. Defendant also seeks the imposition of sanctions upon the plaintiff. The plaintiff cross moves for an order granting summary judgment, pursuant to CPLR 3212. The defendant served a reply.
The underlying cause of action is one to recover $6,500.00, which was held pursuant to an escrow agreement. Said agreement was entered into during the closing of title of the plaintiff's home to the defendant.
The defendant seeks dismissal of this action based upon the action's alleged improper venue. The defendant posits that since the property is in Suffolk, the closing was in Suffolk, and defendant is a resident of Suffolk, this court should dismiss the action or transfer the action to Suffolk County.
The issues in this action are ones concerning joinder of necessity parties and jurisdiction not the choice of venue.
A review of the file indicates that the summons and complaint were served upon the defendant at his residence in Patchogue, New York. In the complaint, it is alleged that the plaintiff's residence is in care of the plaintiff's present attorney who maintains an office in Nassau [*2]County. The basis of the venue designated is the plaintiff's residence/or the location of the breach of the escrow agreement.
As the District Court is a court of limited jurisdiction, a summons must be served within Nassau County unless "service beyond the county [is] authorized by [the UDCA] or by such other provision of law, other than the CPLR, as expressly applies to courts of limited jurisdiction or to all courts of this state" (UDCA §403; Sanghvi International Partners, Inc. v. East-West Sourcing, LP, NYLJ, August 1, 2002, at 22, col 5 [Dist Ct Nassau County]).
Since the defendant was served outside of Nassau County, to sustain jurisdiction the criteria of UDCA §404 must be satisfied.
UDCA §404 reads, in relevant part, that:
(a) Acts which are the basis of jurisdiction. The court may exercise personal jurisdiction over any non-resident of the county, or his executor or administrator, as to a cause of action arising from any of the acts enumerated in this section, in the same manner as if he were a domiciliary of the state and a resident of the county if, in person or through an agent, he:
1. transacts any business within a district of the court in the county; or
2. commits a tortious act within a district of the court in the county, except as to a cause of action for defamation of character arising from the act; or
3. owns, uses or possesses any real property situated within a district of the court in the county.
In this case, the parties were residents of Suffolk County, the closing took place in Suffolk County, the escrow agreement was drawn up during the closing in Suffolk County, and the stakeholder, Donald H. Darbee, Esq. has his office in Suffolk County.
The plaintiff has failed to show that any actions took place in Nassau County which would provide this Court with jurisdiction over a non resident, pursuant to UDCA §404.
Further, Donald Darbee Esq., the stakeholder, and Cheryl Baker, a party to the escrow agreement, have not been named as parties to this action. The court is faced with a problem of missing parties. The missing parties are necessary parties. CPLR 1001. This action shall not proceed in the absence of necessary parties. CPLR 1003.
Accordingly, the defendant's motion is granted. The complaint is dismissed without prejudice.
In light of the above, the plaintiff's cross motion for summary judgment is denied.
So ordered: [*3]
DISTRICT COURT JUDGE
Dated:January 11, 2006
CC:
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