Atlantic Veal & Lamb, Inc. v Silliker, Inc.

[*1] Atlantic Veal & Lamb, Inc. v Silliker, Inc. 2006 NY Slip Op 50527(U) [11 Misc 3d 1072(A)] Decided on March 29, 2006 Supreme Court, Kings County Demarest, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 29, 2006
Supreme Court, Kings County

Atlantic Veal & Lamb, Inc., Plaintiff,

against

Silliker, Inc., Defendant.



22029/05

Carolyn E. Demarest, J.

Upon the foregoing papers, defendant Silliker, Inc. (Silliker) moves to dismiss the complaint of Atlantic Veal & Lamb, Inc. (Atlantic) on the grounds that: (1) the court lacks personal jurisdiction over Silliker pursuant to 3211(a)(8); (2) New York State is an inconvenient forum in which to try the instant action; and (3) the complaint fails to state a cause of action. Atlantic opposes the instant motion on the grounds that: (1) the business activities of Silliker in New York State are so continuous and systematic that Silliker could be construed as "doing business" therein; (2) Silliker and Atlantic engaged in a "business transaction" sufficient to confer long arm jurisdiction over Silliker in New York; (3) jurisdiction over Silliker is appropriate because Silliker allegedly committed professional negligence outside the State of New York which caused damages to Atlantic [*2]in New York; and (4) the complaint states causes of action for breach of contract and professional negligence.

The primary business of Atlantic is the slaughter, processing and distribution of veal. It is headquartered in Brooklyn and its Brooklyn facility processes, packages and distributes veal products to customers throughout the United States. Atlantic also has a veal slaughtering facility in Ohio which is owned and operated by Golden Veal Corporation (Golden Veal), a subsidiary of Atlantic. Sysco Corporation (Sysco), an entity which is not a party to the instant action, is a food service marketer and distributor in the United States. Atlantic avers that Sysco is one of its largest customers and that Atlantic was a Sysco brand supplier from 1993 until April 2005. Silliker is a food safety and quality auditing company incorporated in Delaware with its principal place of business in Illinois.

The instant action stems from an agreement between Silliker and Atlantic pursuant to which Silliker was to conduct an animal welfare audit of Golden Veal. The gravamen of Atlantic's complaint is that Silliker breached the contract between the parties and was professionally negligent when it improperly determined that Atlantic had failed the audit. Atlantic alleges that the failed audit caused Sysco to suspend Atlantic as an approved supplier and that, as a result of the suspension, Atlantic suffered substantial losses in revenue and was forced to lay off a number of employees at its Brooklyn facility.

With regard to the relevant jurisdictional issues, Silliker submits several affidavits from its employees which describe the circumstances of the subject audit agreement. In an affidavit submitted in support of the instant motion to dismiss, Rena Pierami, the division vice president of Silliker, avers that Silliker does not maintain an office in New York, does not have any employees located in New York and is not registered to do business in New York. Ms. Pierami also avers that all communications between Silliker and Atlantic with regard to the subject audit took place through telephone, e-mail and facsimile transmissions.

Diane Luif, the audit coordinator for Silliker, submits an affidavit which states that on or about August 20, 2004, she received a telephone call from Elvira Cunha, an employee of Atlantic, who sought to schedule an animal welfare audit for the Golden Veal facility in Ohio. On the same day, Ms. Luif sent an e-mail to Jeff Neuhauser, an auditor at Silliker, which indicated that she had received a call from Ms. Cunha with regard to scheduling an audit. On September 2, 2004, Ms. Luif sent an e-mail to Beth Shoulders, an audit coordinator at Silliker, which contained an e-mail address and fax number for Ms. Cunha.

Beth Shoulders submits an affidavit which states that on August 24, 2004, she received an e-mail from Mr. Neuhauser which stated that Mr. Neuhauser had spoken with Ms. Cunha with regard to scheduling an animal welfare audit at an Ohio facility. On September 2, 2004, she received an e-mail with Ms. Cunha's e-mail address and fax number. On September 7, 2004, Ms. Shoulders sent an e-mail to Brian Wierner, an [*3]employee of Atlantic, attached to which was a file containing Silliker's 2004 Animal Welfare Audit form. On October 4, 2004, she spoke with Ms. Cunha on the telephone and sent her an e-mail containing Silliker's customer information form which needed to be filled out. A few days later, Ms. Shoulders sent an e-mail to Ms. Cunha confirming that the audit would take place on November 30, 2004. On October 6, 2004, Ms. Shoulders also sent an e-mail to Ms. Cunha with regard to the audit and received a response from Ms. Cunha the next day. On October 11, 2004, she received an e-mail and voice mail from Ms. Cunha concerning the Ohio audit. On the same day, she left Ms. Cunha a voice mail and responded to her e-mail. Attached to the response e-mail was the 2004 Animal Welfare Audit form. Ms. Shoulders requested that Atlantic complete the form, which had been sent to it previously. On November 3, 2004, Ms. Shoulders sent an e-mail to Ms. Cunha requesting that she return the completed customer information form. On November 4, 2004, she left a voice mail for Ms. Cunha with respect to the same issue. On November 8, 2004, she received via fax a completed customer information form from Atlantic. On November 12, 2004, Ms. Shoulders received an e-mail from Ms. Cunha with regard to the Ohio audit. In response, Ms. Shoulders sent a fax to Ms. Cunha confirming the date for the Ohio audit.

On November 30, 2004, an audit was conducted at the Golden Veal facility in Creston, Ohio. The auditor, Kenneth Williams, prepared an audit report which contained the results of the audit. On December 13, 2004, a Silliker employee sent the Audit Report to the e-mail address on record for the manager of the Golden Veal facility. The audit report was not sent to Atlantic from Silliker via e-mail, facsimile, regular mail or any other method. Invoices for the November 30, 2004 audit and a February 15, 2005 re-audit of the premises were sent by Silliker to Golden Veal in Ohio. The invoices were never sent to Atlantic.

In opposition to the motion, Atlantic submits the affidavit of Philip Peerless, the owner and president of Atlantic. Mr. Peerless avers that Silliker is one of Sysco's approved auditing agencies and that Atlantic has retained Silliker to conduct various audit services in connection with Atlantic's status as an approved Sysco brand supplier since 1999. Specifically, between 1999 and 2004, Silliker annually visited Atlantic's Brooklyn facility to conduct a good manufacturing practices audit, which Atlantic was required to obtain to remain a Sysco brand supplier. Mr. Peerless states that Atlantic retained Silliker to conduct an animal welfare audit at Golden Veal's Ohio facility based upon its ongoing relationship with Silliker in New York. Mr. Peerless does not dispute the nature of the communications between the parties preceding the audit. He does state, however, that after he learned that Atlantic had failed the audit, based upon its alleged improper method of kosher slaughter, both he and Ms. Cunha attempted to contact Silliker on multiple occasions to discuss the issue. Allegedly, however, no one from Silliker responded to such inquiries.

With regard to Silliker's business presence in New York State, Mr. Peerless avers [*4]that Silliker advertises itself on its website as "the leading internationally accredited food testing and consulting network," with over 25 locations in 20 countries. Silliker also states on its website that it is able to serve its clients "[a]round the clock, around the globe" and promotes itself as being a "world wide network." Moreover, Sillilker offered a professional course in New York City on June 21-23, 2005, which was entitled "Practical HAACP for Food Processors in New York City." With regard to its conducting of audits within the state, Silliker conducted good manufacturing practices audits at Atlantic's Brooklyn facility once a year for at least five years and, presumably based upon its own audits of such facilities, presented Metroplex Distributors, located in Harriman, New York, with a "2003 Distribution Center Audit Platinum Award" and also presented Specialty Brands, located in New Rochelle, New York, with a 2001 "GMP Food Safety Audit Platinum Award." Moreover, Mr. Peerless states that when the Brooklyn facility was audited by Silliker, he went to lunch with a representative of Silliker who informed him that Silliker would be conducting additional audits in New York.

In addition, Atlantic argues that its ongoing business relationship with Silliker pursuant to which Silliker conducted annual audits in New York and, ultimately, the animal welfare audit in Ohio, for the purpose of insuring Atlantic's continued Sysco certification, constituted a "business transaction" in New York sufficient to fall within the purview of CPLR 302 long arm jurisdiction. Critical to Atlantic's argument in this regard is its contention that animals slaughtered in Ohio are removed to its Brooklyn facility for processing prior to the sale of the final meat product to Sysco and that it was Sysco's recently instituted requirement that all slaughter facilities meet the standards of its animal welfare audit program that necessitated the inspection of Atlantic's Ohio facility by Sysco's authorized inspector, Silliker. Altantic maintains that the nexus between Silliker's inspection of the Ohio facility and the demands of Atlantic's business relationship with Sysco, which were known to Silliker and were, in part, fulfilled by Silliker's ongoing audit activities at the Brooklyn facility, supplies the element of purposeful activity directly related to the claims sued upon, to establish New York jurisdiction over Silliker. Stated somewhat differently, Atlantic argues, in effect, that its ongoing contractual relationship with Silliker to audit its Brooklyn facility, the purpose of which was to maintain Atlantic's Sysco certification, was the relevant business transaction for purposes of long arm jurisdiction and that the Ohio audit was so irrevocably connected to such transaction, under the totality of the circumstances, that long arm jurisdiction under CPLR 302 is warranted.

It is well settled that "[a] foreign corporation is amenable to suit in New York courts under CPLR 301 if it has engaged in such continuous and systematic course of doing business that a finding of its presence in this jurisdiction is warranted" (Landoil Resources Corp. v Alexander & Alexander Servs., Inc., 77 NY2d 28, 33 [1990][internal quotation marks and citations omitted]). "The essential factual inquiry is whether the [*5]defendant has a permanent and continuous presence in the State, as opposed to merely occasional or casual contact with the State" (Holness v Maritime Overseas Corp., 251 AD2d 220, 222 [1998]). Stated differently, the salient issue when determining jurisdiction predicated on the "doing business" status of the defendant is whether "the aggregate of the corporation's activities in the State [are] such that [the corporation] may be said to be present in the State not occasionally or casually, but with a fair measure of permanence and continuity" (Laufer v Ostrow, 55 NY2d 305, 309-310 [1982]). In addition, the court must look to "the quality and nature of the corporation's contacts with the State [and such contacts must be] sufficient to make it reasonable and just according to traditional notions of fair play and substantial justice that it be required to defend the action here" (id. at 310 [internal quotation marks and citations omitted]). This is especially true because CPLR 301 allows for jurisdiction with regard to any cause of action brought against the subject corporation and is not limited to claims arising out of the entity's specific business transactions as is the case with the so-called "long arm jurisdiction" predicated upon CPLR 302 (Mingmen Acupuncture Servs., P.C. v American Transit Ins. Co., 183 Misc 2d 270 [1999]).

Here, the court finds that Silliker's business transactions in New York are not sufficiently systematic or continuous to support jurisdiction pursuant to CPLR 301. It is undisputed that Silliker does not maintain an office or employees in New York and is not registered to do business here (Symenow v State Street Bank and Trust Company, 244 AD2d 880, 880 [1997] [fact that defendant did not maintain an office in the State of New York, had no employees stationed within the state and was not authorized to conduct business within the State supported, in part, finding that the court did not have jurisdiction over defendant pursuant to CPLR 301]). Further, its website, although evidencing an ability and willingness on the part of Silliker to conduct audits in a variety of markets around the world, in and of itself amounts to mere solicitation of business and does not appear to target such solicitation specifically to potential New York clients (see Chamberlain v Jiminy Peak, 176 AD2d 1109, 1110 [1991] [solicitation of business alone not sufficient to establish "presence" for purposes of CPLR 301]). Moreover, although a "solicitation-plus" analysis is warranted where, as here, additional activities on the part of the subject corporation appear to exist within New York, such activities must be continuous and of substance to warrant a finding of the requisite jurisdictional "presence" in the state (id. at 1110).

In the instant case, the additional activities identified by plaintiff are Silliker's presentation of a seminar in New York City with regard to auditing procedures and its performance of seven audits in New York during an approximately six year period, including five annual audits which were conducted at Atlantic's Brooklyn facility. Although audits of this type represent the substantive business of Silliker, the court finds that sporadic and seemingly occasional audits performed within the state such as those which are identified by plaintiff, do not represent the type of systematic presence and [*6]purposeful availment of New York law that CPLR 301 requires for jurisdictional purposes. This is particularly true given that Silliker does not maintain an official business presence in New York in the form of offices or employees and is not formally registered to do business here, but rather, apparently, is on occasion hired by New York entities to enter the state and conduct audits at various facilities. Moreover, although the existence of such audits demonstrates that additional audits may have been conducted by Silliker within the state, the performance of such audits alone, even if more frequent or widespread, does not suffice to confer jurisdiction under CPLR 301 in light of the aforesaid absence of a formal business presence in New York. Accordingly, given the limited nature of these activities and the fact that they appear not to be conducted pursuant to any ascertainable established schedule or routine which would demonstrate that the requisite continuity of presence within the state exists with regard to its business activities, the court finds that jurisdiction over Silliker under CPLR 301 does not exist under these particular facts (see id. at 1110 [defendant's activities in the state, while potentially constituting more than mere solicitation, did not rise to the level of doing business where defendant had not filed a certificate to do business in New York, had no mailing address, office, bank account or employees in New York and although defendant visited between 6 and 10 of the approximately 23 New York schools participating in its ski program to premeasure students for rental equipment and distribute season passes, such visits were not pursuant to any "routine or schedule" and did not represent a continuous and systematic course of conduct as required by CPLR 301]; see also Cardone v Jiminy Peak, Inc., 245 AD2d 1002, 1003 [1997][jurisdiction not found pursuant to CPLR 301 where defendant's activities were deemed "sporadic" and were not carried out from a permanent location in the state, or by agents or employees located in the state, and consisted largely of the distribution and sales of coupons and lift tickets through publications, travel agents and the distribution of related promotional materials through various media]; Taibleson v National Center for Continuing Education, 190 Misc 2d 796 [2002][no jurisdiction pursuant to CPLR 301 found where defendant corporation, which was in the business of providing continuing education seminars to professionals, did not maintain any offices in New York, did not employ any agents or employees in New York and conducted only four seminars in New York in four years]).

"Where the plaintiff's proof falls short of establishing such a systematic course of doing business, however, our statutory scheme permits [the plaintiff] to bring the foreign defendant within the power of the New York courts upon a lesser showing of some business contacts within the State only if he [or she] demonstrates that his [or her] cause of action arose out of those business contacts" (McGowan v Smith, 52 NY2d 268, 272-273 [1981]).

CPLR 302 (a) (1) provides that "a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator . . . [who] transacts any business within the state." Pursuant to this provision, "where the activities were purposeful and a [*7]substantial relationship exists between the transaction and the claim asserted, jurisdiction may be invoked, even if the defendant never physically enters New York" (Otterbourg, Steindler, Houston & Rosen, P.C. v Shreve City Apartments Ltd., 147 AD2d 327, 331 [1989]). "The test is whether the defendant has engaged in some purposeful activity in New York in connection with the matter in controversy" (id.). CPLR 302(a)(1) "is a single act' statute and proof of one transaction in New York is sufficient to invoke jurisdiction" (Catauro v Goldome Bank for Savings, 189 AD2d 747, 748 [2005][citations omitted]; see also Opticare Acquisition Corp. v Castillo, __ AD3d __, 806 NYS2d 84 {25 AD3d 238} [2005]). However, although transactions conducted via telephone, fax and wire transfers by a nonresident defendant who never enters the state can confer jurisdiction over that defendant in appropriate circumstances, especially where the defendant's agents also conducted transactions in the state, the mere interstate negotiation of a contract via telephone, facsimile or mail, without any additional transactions or activity between the parties, is generally insufficient to impose jurisdiction upon a non-resident defendant (see Professional Personnel Management Corp. v Southwest Medical Associates, 216 AD2d 958, 958 [1995]; see also J.E.T. Advertising Assocs., Inc v Lawn King, 84 AD2d 744, 745 [1981], lv dismissed 56 NY2d 648 [1982][no jurisdiction under CPLR 302(a)(1) where contract in question was negotiated by telephone and mail and no meetings were held in New York]). Moreover, where the services contracted for are to be performed outside of New York, the mere fact that a party to the contract is a New York domiciliary does not suffice to invoke the court's jurisdiction pursuant to CPLR 302(a)(1) (see Finesurgic v Davis, 148 AD2d 414, 415 [1989], lv dismissed in part, denied in part 74 NY2d 781 [1989]).

Another factor to be considered in evaluating the availability of CPLR 302 (a) (1) jurisdiction is whether the defendant engaged in activities in the jurisdiction in furtherance of creating an ongoing course of dealing or contractual relationship between the parties out of which the cause of action arose (see generally Reiner & Co. v Schwartz, 41 NY2d 648, 653 [1977][activities undertaken by defendant within New York in furtherance of the purposeful creation of a continuing contractual relationship out of which the cause of action arose deemed sufficient to confer 302 (a) (1) jurisdiction]). Many courts have noted that, besides activities aimed at establishing an ongoing contractual relationship between the parties, the existence of an ongoing contractual or business relationship between the parties which, when viewed in its totality, can be construed as constituting a sufficient transaction out of which the subject action arose, also supports a finding that long arm jurisdiction exists (see generally Agency Rent A Car System, Inc. v Grand Rent A Car Corp., 98 F3d 25 [2d Cir 1996][noting that a defendant's ongoing contractual relationship with a New York corporation is an important factor in determining whether jurisdiction exists pursuant to CPLR 302 (a) (1)]; accord Hutton v Priddy's Auction Galleries, Inc., 275 F Supp 2d 428 [SDNY 2003]; Schomann International Corp. v Northern Wireless, Ltd., 35 F Supp 2d 205 [1999]; National Tel. [*8]Directory Consultants, Inc. v BellSouth Adver. & Publishing Corp., 25 F Supp 2d 192, 196 [SDNY 1998]). However, given the requirement that there must be some articulable nexus between the business allegedly transacted in New York and the causes of action sued upon, jurisdiction will not be found where the prior dealings between the parties do not have any substantive connection to the transaction which forms the basis for the subject lawsuit (see EAC Systems, Inc. v Chevie, 154 AD2d 813, 814 [1989] lv denied 75 NY2d 705 [1990][no long arm jurisdiction over defendant, a corporate officer and director, where he ceased his business dealings with plaintiff corporation and the subject causes of action stemmed from an agreement between the parties which was separated "by time and geography from [defendant's] New York business dealings . . . [and therefore did] not arise out of the transaction of business within the meaning of CPLR 302(a)(1)"]; see also Talbot v Johnson Network Corp., 123 AD2d 147 [1983], aff'd 71 NY2d 827 [1988][noting that "a defendant may not be subject to personal jurisdiction under CPLR 302(a)(1) simply because her contact with New York was a link in a chain of events giving rise to the cause of action," the court found that the intial business activity alleged between the parties was "sufficiently separated by time and geography" from the alleged tortious conduct of defendant and, therefore, personal jurisdiction pursuant to New York's long arm statute did not exist]).

Under the totality of the circumstances, the court finds that Silliker has engaged in sufficient purposeful activities in New York with regard to its ongoing business relationship with Atlantic to demonstrate that it has also invoked the benefits and protections of the laws of New York and, therefore, should be subject to the jurisdiction of the New York courts pursuant to CPLR 302 (a)(1). As an initial matter, it is true that the animal welfare audit in question was arranged solely through telephonic, facsimile and e-mail communications between representatives of Silliker and Atlantic. From the record before the court it appears that Atlantic, in essence, placed an order for audit services to be performed by Silliker, Silliker sent Atlantic the necessary paperwork in order to schedule the audit and the audit was subsequently performed at the Golden Veal facility in Ohio. It is also undisputed that the audit report and all invoices for the audit were sent to Golden Veal in Ohio and not to Atlantic in New York, although the original customer information form filled out by Atlantic with regard to the audit listed Atlantic Veal as the parent company and the entity to be billed.

However, the court finds that although the contract for the subject animal welfare audit could not be said to have been negotiated or performed in New York, its inextricable connection to the ongoing business relationship between Silliker and Atlantic which did occur in New York - namely the manufacturing audits conducted by Silliker at the Brooklyn facility for the purpose of Atlantic's continued Sysco certification - is sufficient to warrant this court's exercise of long arm jurisdiction with regard to the instant action. Atlantic initially contracted with Silliker to perform such audits because Silliker was a Sysco approved auditor and Atlantic needed such audits to be conducted in [*9]order to maintain its lucrative status as a Sysco certified supplier. The Ohio audit, therefore, is not properly construed, for purposes of long arm jurisdiction, as a discrete contractual transaction unrelated to the New York venue or the ongoing business relationship between Atlantic and Silliker in New York. Nor was the Ohio audit sufficiently separated by time and geography - and most importantly, purpose - from the ongoing Sysco certification audits Silliker regularly conducted in New York to render Silliker impervious to long arm jurisdiction. Rather, such activity is more accurately viewed as an integral component of the larger transaction between the parties, namely the regular auditing of Atlantic's facilities - whether located in Brooklyn or Ohio - for the purpose of maintaining Atlantic's status as a Sysco certified supplier. Golden Veal is not a Sysco supplier and the audit was performed by Silliker with the knowledge that such audit was being conducted as the result of a new requirement by Sysco that not only Atlantic's processing facility in Brooklyn, but also its slaughter facility in Ohio, must be audited in order for Atlantic to continue to receive the benefit of its Sysco certified status. Accordingly, as Silliker directed purposeful activity toward New York by entering into an ongoing relationship with Atlantic, a New York based company, to conduct audits of its facilities in order that Atlantic could maintain its valuable Sysco certification, and the instant action arises out of the loss of such certification due to the alleged negligence and breach of contract by Silliker, the court finds that its exercise of long arm jurisdiction over Silliker pursuant to CPLR 302 (a)(1) is appropriate. As a result, the court denies that portion of Silliker's motion which seeks dismissal of Atlantic's complaint on the ground that the court lacks personal jurisdiction over Silliker with regard to the instant action.[FN1] [*10]

The court also denies the instant motion to the extent Silliker seeks a dismissal of the complaint on forum non conveniens grounds. "The common law doctrine of forum non conveniens, also articulated in CPLR 327, permits a court to stay or dismiss . . . actions where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere" (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 U.S. 1108 [1985]). Among the factors to be considered are the burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum in which plaintiff may bring suit (id. at 479). The residency of the parties, potential hardship to proposed witnesses and the situs of the underlying occurrence giving rise to the lawsuit are also factors which should be considered by the court in reaching its determination (see Economos v Zizikas, 18 AD3d 392, 394 [2005]). However, "no one factor is controlling [and] [t]he great advantage of the rule . . . is its flexibility based upon the facts and circumstances of each case" (Islamic Republic of Iran, 62 NY2d at 479). "The burden rests on the defendant challenging the forum to demonstrate that private or public interests militate against litigation going forward in this State, and the determination of the court will not be disturbed on appeal unless the court has failed to properly consider all the relevant factors" (Cheggour v R'Kiki, 293 AD2d 507, 508 [2002]).

Here, the court finds that New York is a convenient forum for the instant action. As an initial matter, the court notes that a plaintiff's choice of forum in his or her domiciliary state is presumptively favored (Wyser-Pratte Management Co., Inc. v Babcock Borsig AG, 23 AD3d 269, 270 [2005]). Although such a presumption is not dispositive, other factors present in the case at bar strongly weigh in favor of retaining New York as the appropriate forum for trial of this action. As previously discussed, this case stems from an ongoing business relationship between Silliker and Atlantic whereby Silliker conducted audits in New York at Atlantic's manufacturing facility for purposes of aiding Atlantic in retaining its Sysco certification and, based upon such ongoing [*11]relationship, Atlantic also hired Silliker to perform an animal welfare audit at Atlantic's Ohio facility once Sysco expanded its auditing certification requirements to encompass the animal welfare practices at said facility. Given that the alleged claims for breach of contract and professional negligence arose out of the Ohio audit and allegedly caused damages to Atlantic, which is a New York resident and processes all of its products at its New York facility, including all veal received from its Ohio slaughtering facility, New York has an interest in adjudicating the instant claim. Moreover, with regard to the issue of defendant and witness convenience, it is undisputed that Silliker is an international company which is able to perform services in a number of markets around the world. Further, Silliker has not demonstrated that it does not possess the resources to defend the action in New York. Additionally, some of the key witnesses identified thus far, namely those individuals who conducted the audit, are no longer employed by Silliker, do not reside in New York, Ohio or Illinois - the site of Silliker's headquarters - and, presumably, will be equally inconvenienced by their appearance in any of these forums.

Finally, although one factor which weighs in favor of dismissal on forum non conveniens grounds is the need for the court to apply the law of a foreign jurisdiction in adjudicating the action (see Nguyen v Banque Indosuez, 19 AD3d 292, 294 [2005], lv denied 6 NY3d 703 [2006]), the court finds that, in applying New York's choice of law rule - generally known as the "grouping of contacts" test - to the instant case, the so-called "center of gravity" of the claims for breach of contract and professional negligence asserted by Atlantic is firmly situated in New York and, therefore, New York law should apply. Pursuant to the "grouping of contacts" doctrine, "controlling effect [is given] to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties has the greatest concern with the specific issue raised in the litigation. The merit of such a rule is that it gives to the place having the most interest in the problem paramount control over the legal issues arising out of a particular factual context and thereby allows the forum to apply the policy of the jurisdiction most intimately concerned with the outcome of [the] particular litigation" (Babcock v Jackson, 12 NY2d 473, 481-482 [1963] [internal quotation marks and citations omitted]). The "grouping of contacts" approach is utilized in both the tort (see id.) and contract action contexts (see generally Matter of Allstate Ins. Co. v Stolarz, 81 NY2d 219, 226 [1993]; Matter of Allstate Ins. Co. v Conigliaro, 248 AD2d 293, 293 [1998]). With regard to contract actions, the court must focus on the contacts that are significant in the particular contract dispute (see Ackerman v Price Waterhouse, 252 AD2d 179, 192 [1998]). The jurisdiction where the parties' course of dealing was established is also to be taken into consideration (see Petr Blahout Corp. v D'Agostino, 256 AD2d 217, 218 [1998]).

Here, the grouping of contacts analysis supports the application of New York law to the instant action. The parties' business relationship was initiated in New York, continued in New York from 1999 to 2004 and was entered into by Atlantic, a New York resident and domiciliary, in order to comply with Sysco's requirements that Atlantic's [*12]New York facility undergo annual audits. Based on this course of dealing, Atlantic retained Silliker to audit Atlantic's slaughtering facilities in Ohio in 2004 when Sysco added such requirement to its certification rules, and to continue its audits in New York, one of which was performed in December 2004, subsequent to the Ohio audit. Given that the Ohio audit was conducted solely for the benefit of Atlantic's Sysco certification and the damages resulting from the alleged improperly conducted audit inured almost exclusively to Atlantic and occurred in the context of an ongoing business relationship between Silliker and Atlantic which was largely situated in New York, the court finds that the accumulation of contacts favors the application of New York law. Accordingly, as New York law will apply, any alleged "burden" with regard to the application of the law of another jurisdiction, such as, for example, Ohio, is not relevant for purposes of determining the convenience of a New York forum. As a result, that portion of Silliker's motion which seeks dismissal of the action on forum non conveniens grounds is denied.[FN2]

Finally, that portion of Silliker's motion which seeks to dismiss the complaint for failure to state a cause of action for breach of contract or professional negligence is denied. "It is well settled that, as a general rule, on a motion to dismiss the complaint for failure to state a cause of action under CPLR 3211 (a)(7), the complaint must be construed in the light most favorable to the plaintiff and all factual allegations must be accepted as true" (Gruen v County of Suffolk, 187 AD2d 560, 562 [1992]). Additionally, "[t]he pleading is deemed to allege whatever can be implied from its statements by fair and reasonable intendment" (Components Direct, Inc. v European American Bank and Trust Co., 175 AD2d 227, 232 [1991]). "[I]f from [the complaint's] four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). "The criterion is whether the plaintiff has a cause of action and not whether he may ultimately be successful on the merits" (One Acre, Inc. v Town of Hempstead, 215 AD2d 359 [1995]). Accordingly, the dismissal of a complaint pursuant to CPLR 3211(a)(7), "will be warranted only in those situations in which it is conclusively established that there is no cause of action" (Town of North Hempstead v Sea Crest Construction Corp., 119 AD2d 744, 746 [1986]).

Here, Atlantic has adequately pled its causes of action sounding in breach of contract and professional negligence for purposes of withstanding the instant motion to dismiss. The elements of a contract cause of action are the formation of a contract [*13]between plaintiff and defendant, performance by plaintiff, defendant's failure to perform and resulting damages (see generally Furia v Furia, 116 AD2d 694, 695 [1986]). In addition, a complaint alleging breach of contract must set forth the terms of the agreement upon which liability is predicated by making specific reference to the relevant portions of the contract or by attaching a copy of the contract to the complaint (see Chrysler Capital Corp. v Hilltop Egg Farms, Inc., 129 AD2d 927, 928 [1987]; accord Valley Cadillac Corp. v Dick, 238 AD2d 894, 894 [1987]). With regard to a cause of action for professional negligence, a legal duty independent of the contract must be pled, and such legal duty must spring from circumstances extraneous to, and not constituting elements of the contract, although it may be connected with and dependent on the contract (see Robinson Redevelopment Co. v Anderson, 155 AD2d 755, 757 [1989]).

In the instant case, Atlantic's complaint satisfactorily references the audit criteria pursuant to which Silliker allegedly was to conduct the audit and alleges that such audit guidelines were breached with regard to Silliker's evaluation of Golden Veal's Kosher slaughter methods thereby causing Atlantic to fail the audit and lose its Sysco certification. Such averments suffice to state a cause of action for breach of contract. With regard to its breach of professional negligence claim, Atlantic alleges that Silliker owed Atlantic a duty to exercise ordinary skill and knowledge in its animal welfare audit and pleads facts pertaining to the professional ongoing relationship between Atlantic and Silliker from which Silliker's duty of care to Atlantic arose (see Robinson Redevelopment Co., 155 AD2d at 757 [finding that complaint sufficiently set out a cause of action for professional malpractice where "it [was] alleged that the architectural duties of defendants were performed in a manner falling below the accepted standard of care" and that such duty of care "sprang from the professional relationship [defendant] had with plaintiff and was extraneous to the contract, although connected to and dependent on it"]). Accordingly, the court finds that Atlantic has stated causes of action for breach of contract and professional negligence which are sufficient to withstand that portion of defendant's motion seeking dismissal pursuant to CPLR 3211(a)(7).

As a result, Silliker's motion to dismiss is denied in its entirety.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C.

[*14] Footnotes

Footnote 1: Atlantic also argues that jurisdiction over Silliker can be invoked pursuant to CPLR 302(a)(3)(i) or (ii), both of which require the defendant's commission of a tort without New York that causes injury within New York. It is well established, however, that "the residence or domicile of the injured party within a State is not a sufficient predicate for jurisdiction, which must be based upon a more direct injury within the State and a closer expectation of consequences within the State than the indirect financial loss resulting from the fact that the injured person resides or is domiciled there" (Fantis Foods, Inc. v Standard Importing Co., Inc., 49 NY2d 317, 326 [1980]; see also Greenberg v Sir-Tech Software, Inc., 297 AD2d 834, 836-837 [2002]; Cooperstein v Pan-Oceanic Marine, Inc., 124 AD2d 632, 633-634 [1986], lv denied 69 NY2d 611 [1987]). Moreover, it has long been held that the situs of a nonphysical commercial injury is where "the critical events associated with the dispute took place" (Weiss v Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, 85 AD2d 861, 862 [1981]) and "not where the resultant monetary loss occurred" (Polansky v Gelrod, 20 AD3d 663, 664 [2005]; see also La Marca v Pak-Mor Manufacturing Co., 95 NY2d 210, 214 [2000]; Lancaster v Colonial Motor Freight Line, Inc., 177 AD2d 152, 158-159 [1992]). In the instant case, Atlantic has failed to demonstrate that any direct injury has occurred in New York as a result of Silliker's alleged tort and, therefore, the invocation of this court's jurisdiction pursuant to CPLR 302(a)(3)(i) or (ii) would be improper under the circumstances presented at bar. The injury alleged by Atlantic is primarily the loss of profits associated with its suspension by Sysco and the concomitant loss of Sysco's business allegedly due to the audit conducted by Silliker. Atlantic also alleges that such lost profits have led to the lay-off of employees at its Brooklyn facility. However, such lay-offs are averred to be the result of Atlantic's alleged lost profits and do not constitute a direct injury resulting from the alleged tort by Silliker. Moreover, conclusory allegations of general damages to Atlantic's reputation due to the audit failure are unduly speculative and, in any event, would presumably not be limited to New York to the extent necessary to establish a direct injury therein. Accordingly, the court finds that the loss of profits allegedly experienced by Atlantic largely in its capacity as a New York domiciliary is not the type of direct injury contemplated by the statute (see Fantis Foods, Inc., 49 NY2d at 326; Greenberg, 297 AD2d at 836-837; Cooperstein, 124 AD2d at 633-634).

Footnote 2: In any event, the court notes that even if Ohio law did apply, there has been no showing, beyond mere speculation, that the application of such law by a New York court would be unduly burdensome (see e.g. Continental Ins. Co. v Garlock Sealing Technologies, LLC, 23 AD3d 287, 288 [2005][noting that "New York courts would be perfectly capable of and would not be unduly burdened by applying Pennsylvania law, should the need arise"]).