Seldon v Rebenack, Aronow & Mascolo, LLP

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Seldon v Rebenack, Aronow & Mascolo, LLP 2011 NY Slip Op 32364(U) August 15, 2011 Sup Ct, NY County Docket Number: 101042/11 Judge: Eileen A. Rakower Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY Index Number : I 0 1042/201 I I SELDON, PHILIP vs REBENACK, ARONOW & MASCOLO, SEQUENCE NUMBER : 001 MOTION DATE MOTION SEQ. NO. II DISMISS ACTION II u] 1 MOTION CAL. NO. this motion tolfor PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affldavlts - Exhlblts ... Answering Affldavlts - Exhibits Replylng Affldavlts Cross-Motion: Yes fi =ED Upon the foregoing papers, it is ordered that this motion - Check one: 0 NON-FINAL DISPOSITION DO NOT POST 0 REFERENCE 0 FINAL DISPOSITION Check if appropriate: u HON. EILEEN A. RAKQMlER - 0 SUBMIT ORDER/ JUDG. c SETTLE ORDER/ JUDG. ] . . . . ... . [* 2] Index No. 101042/11 Plaintiff, Seq No.: 001 - against Decision and Order REBENACK, ARONOW & MASCOLO, LLP and JAY MASCOLO, FILED Defendants. ,< Plaintiff, Philip Seldon, brings this action for legal malpractice as the result of defendants representation of plaintiffs New Jersey base2 companies beginning in June of 2007. Defendants now move to dismiss, pursuant to CPLR 32 1 1(a)(8) for lack of personal jurisdiction. Plaintiff, acting pro se, opposes the motion. In November 2006, a judgment was entered against Seldon in Supreme Court, New York County, and in favor of Andrew J. Spinnell, in the amount of $5 15,O 13.OO. Defendants did not represent plaintiff in the New York action. In an effort to collect the judgment, Spinnell docketed his New York judgment in Superior Court of New Jersey. As a result, a bank affiliated with two of Seldon s companies, restricted those companies from accessing funds. Thereafter, Seldon was referred by the Middlesex County Bar Association to defendants Rebenack, Aronow & Mascolo, LLP ( Rebenack ), a New Jersey law fr. i mPlaintiff signed a retainer agreement with Rebenack on June 27,2007. Rebenack commenced an action (( the bank action ), and filed an order to show cause in Superior Court, seeking to lift the restrictions. The Order to Show Cause was denied and the court permitted Spinnell to withdraw certain funds in satisfaction of his - 1 1 [* 3] judgment. In October 2007 Spinnell filed a separate action, also in Superior Court, alleging that plaintiff, individually, and through his corporations, had fraudulently conveyed funds. In May 2009 a Superior Court judge decided that Spinnell s claims were barred because he failed to assert them in the bank action. In July 2010, the Superior Court Appellate Division reversed the lower court and remanded the action to trial court to determine whether there were any issues of material fact. In December 2010 the action was tried and the judge found that Seldon fraudulently conveyed his funds and was directed to pay Spinnell the monies owed on the New York judgment. At the trial Rebenack represented the corporations and Seldon appearedpro se. Thereafter, Seldon commenced the instant malpractice action by service of a Summons with Notice on January 26,20 1 1, alleging that Rebenack failed to properly prepare him for trial, and failed to properly represent him, Rebenack, in support of its motion, submits: the complaint; a copy of the Appellate Division decision; a copy of the retainer agreement; and a copy of a Superior Court Order and Judgment. Rebenack argues that it is a New Jersey fr im that does not advertise or conduct business in New York. The underlying matter, Rebenack asserts, arose out of New Jersey litigation, and all meetings, grid preparation for trial were done in New Jersey. Rebenack admits that it shared a single office in New York City with a New York attorney from 2009 until January 20 1 1, but, through the affidavit of defendant Jay Mascolo, claims that it had no staff or telephone listing for that office, and that the fr did not hold a New York bank account. Rebenack further concedes that the im New York address was listed on its letterhead during that period, but asserts that the office was only used three times to hold EBTs in unrelated insurance matters, and that the office was now closed due to non-use. Seldon, in opposition, claims that: Jay Mascolo repeatedly telephoned [him] in New York City regarding his representation as well as e-mailing and faxing him in New York City. He specifically arranged to provide representation to. . . Seldon by telephone in New York City on December 18, 20 10 to prepare him for trial in a tape recorded telephone meeting where he devoted half an hour in preparing for trial. During the course of his attorney/client 2 [* 4] relationship Jay Mascolo participated in more than fifty telephone conversations with . . . Seldon and sent him more than thirty emails to his office in New York City . , , CPLR 321 l(a)(8) states: . . . A party may move for judgment dismissing one or more caused of action asserted against him on the ground that: (8) the court has not jurisdiction of the person of the defendant. . , New York courts have jurisdiction over a non-domiciliary if that entity transacts any business within the state or contracts anywhere to supply goods or services in the state . , . A non-domiciliary . . .may . . . reasonably foresee the prospect of defending a suit there if it purposefully avails itself of the privilege of conducting activities within the forum State. (LaMarca v. Pak-Mor Manufacturing Co., 95 NY2d 210,216[2000])(internal citations omitted). The focus is on the contacts between the nonresident defendant and the business centered in New York . . . the salient consideration . . . is whether the assertion ofjurisdiction comports with due process . . . (Pramer S.C.A. v. Abaplus International Corporation, 20 10 WL 2302367(N.Y.A.D. 1 Dept.). Plaintiff urges that defendant was transacting business pursuant to CPLR 302, as evidenced by fifty telephone calls and thirty emails defendant made to plaintiff in New York. Plaintiff cites to Fischbarg v. Doucet ( 9 NY3d 375 [2007]) to support his contention that such communications with plaintiff while plaintiff was in New York are sufficient to confer jurisdiction. However, unlike Fischbarg, defendant did not solicit plaintiff in New York. Rather, plaintiff sought a New Jersey attorney and contacted Rebenack in New Jersey based upon a referral from a New Jersey Bar Association. In order to determine whether a foreign corporation is doing business in New York, pursuant to CPLR 30 1, there is no precise test of the nature or extent of the business that must be done, all that is requisite is that enough be done to enable us to say that the corporation is here . . [i]f it is here it may be served. (Tauza v. Susquehanna Coal Co., 220 NY 259[ 19171). 3 [* 5] Although a plaintiff bears the ultimate burden of proof on the issue of personal jurisdiction, in opposing a motion to dismiss pursuant to CPLR 321 l(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiffs need not make a prima facie showing of jurisdiction, but instead must only set forth a sufficient start, and should have further opportunity to prove other contacts and activities of the defendant in New York as might confer jurisdiction under the long arm statute, thus enabling them to oppose the motion to dismiss. (Peterson v. Spartan Industries, Inc., 33 NY2d 463 [ 19741 ). Rebenack maintained an office in New York until.January 201 1, in or around the time the summons and notice would have been served. Additionally, the New York address was listed on Rebenack s letterhead during the period from 2009 through January 201 1. Thus, there is sufficient basis to deny Rebenack s motion and permit discovery on the issue of whether Rebenack was doing business in New York. (see; CPLR 32 1 1[d]). Wherefore it is hereby .. ORDERED that defendant s motion is denied without prejudice to a new motion at the close of discovery on the jurisdictional issue; and it is further ORDERED that the parties shall appear for a Preliminary Conference on Tuesday October 11,201 1 at 9:30 a.m. in Room 308 at 80 Centre Street. This constitutes the decision and order of the court. All other relief requested is denied, DATED: August 15,20 1 1 AUG 1 8 2011 NEW YORK COUNTY CLERKS OFFICE 4

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