Kent v Dometic, LLC

[*1] Kent v Dometic, LLC 2012 NY Slip Op 51519(U) Decided on August 10, 2012 Supreme Court, Cattaraugus County Himelein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 10, 2012
Supreme Court, Cattaraugus County

John H. Kent and Katie Kent, Plaintiffs

against

Dometic, LLC, DS CORP., d/b/a CROSSROADS RV and THOM BECKLEY INCORPORATED, d/b/a ENDLESS SUMMER RV'S, Defendants



79422



AARON ADOFF, ESQ.

135 Delaware Avenue, Suite 200

Buffalo, New York 14202

For the Plaintiffs

BRIAN McDONALD, ESQ.

1000 Cathedral Park

37 Franklin Street

Buffalo, New York 14202

For the Defendant Dometic, LLC

BRYAN BAUMANN, ESQ.

120 West Tenth Street

Erie, Pennsylvania 16501

For the Defendant DS Corp.

JEFF BAASE, ESQ.

1600 Liberty Bldg.

Buffalo, NewYork 14202

For the Defendant Thom Beckley, Inc.

Larry M. Himelein, J.

D E C I S I O N

Plaintiffs purchased a recreational vehicle (RV) from defendant Thomas Beckley, d/b/a Endless Summer, in Frederick, MD, on February 21, 2005. The invoice reflects that plaintiffs lived in Slippery Rock, PA, at the time of the purchase.

Plaintiffs claim that on September 17, 2008, while the RV was located in Cattaraugus County, a fire started in the refrigerator of the RV and totally destroyed the RV. Plaintiffs commenced this lawsuit against a number of defendants including the manufacturer of the refrigerator, the manufacturer of the RV, and Beckley/Endless Summer, the retailer of the RV.

Beckley moves to dismiss the complaint against it for lack of personal jurisdiction. They claim that all RVs must be purchased from their place of business in Maryland and New York's ties with this transaction are too tenous to support jurisdiction in New York. Plaintiffs contend that defendant is subject to the jurisdiction of New York pursuant to CPLR 302 (a) (3) (i) and/or (ii). Specifically, plaintiffs contend that Endless Summer's website offers to ship parts and accessories anywhere in the continental United States. Plaintiffs further contend that the website is an "interactive" one, which supports a finding of personal jurisdiction over defendants.

CPLR 302 (a) provides that "a court [in New York] may exercise personal jurisdiction over any domiciliary" who

3. commits a tortious act without the state causing injury

to person or property within the state . . . if he

(i) regularly does or solicits business, or engages in any other

persistent course of conduct, or derives substantial revenue

from goods used or consumed or services rendered in the

state, or

(ii) expects or should reasonably expect the act to have consequences

in the state and derives substantial revenue from interstate or

international commerce [.]

"To determine whether a non-domiciliary may be sued in New York, we first determine

whether our long-arm statute (CPLR 302) confers jurisdiction over it in light of its contacts with this state. If the defendant's relationship with New York falls within the terms of CPLR 302, we determine whether the exercise of jurisdiction comports with due process" (LaMarca v. Pak-Man Mfg. Co., 95 NY2d 210, 214, 713 NYS2d 304 [2000]). Thus, under either subdivision (3) (i) or (ii), three initial criteria must be met: (1) the defendant must commit a tortious act outside New York; (2) the cause of action must arise from that act; and (3) the act must cause injury in New York (Id). It appears that these criteria are satisfied. [*2]

Under CPLR 302 (a) (3) (ii), in order to obtain jurisdiction, the defendant must also expect or "reasonably expect the act to have consequences in the state and [emphasis supplied] derive [ ] substantial revenue from interstate or international commerce" (LaMarca v. Pak-Man Mfg. Co., 95 NY2d 210, 214, 713 NYS2d 304 [2000]; see also Penguin Group (USA) Inc. v. American Buddha, 16 NY3d 295, 921 NYS2d 171 [2011]). Here, the RV was sold in Maryland to a couple living in Pennsylvania. The court does not see how defendant could reasonably expect that act to have consequences in New York. Even if they could, there is no showing that defendant derives any revenue from interstate or international commerce.

Under subdivision (i), the defendant must also regularly do business in New York, regularly solicit business in New York, engage in a "persistent course of conduct," or derive "substantial revenue from goods used in New York" (CPLR 302 [a] [3] [i]; see also Ingraham v.

Carroll, 90 NY2d 592, 665 NYS2d 10 [19997]). This provision requires some "ongoing activity within New York State" (Ingraham, at 597).

Here, there is no showing that Beckley/Endless Summer regularly does business in New York (see PT Bank Mizuho Indonesia v. PT Indah Kiat Pulp and Paper Corp., 25 AD3d 470, 808 NYS2d 72 [1st Dept 2005]; Ingraham v. Carroll, 90 NY2d 592, 665 NYSD2d 10 [1997]). Similarly, plaintiffs have not shown that defendant engaged in a persistent course of conduct in New York (see Allen v. Marais, SA, 307 AD2d 613, 762 NYS2d 188 [3d Dept 2003] [sending technicians and employees to New York to train and supervise the operations and maintain machinery sufficient]; Porter v. LSB Inc., Inc., 192 AD2d 205, 600 NYS2d 867 [4th Dept 1993]).

Further, there is no showing that defendant derives substantial revenue from goods used in New York (see Allen v. Canadian General Electric Co., Ltd., 65 AD2d 39, 410 NYS2d 707 [3d Dept 1978], affd 50 NY2d 935, 431 NYS2d 526 [1980] [New York sales of nearly $9 million might be enough]; Reynolds v. Aircraft Leasing, Inc., 194 Misc 2d 550, 756 NYS2d 704 [Sup Ct, Queens County 2002] [$1 million in New York sales out of company's $12 million annual sales sufficient]; Muse Collections, Inc. v. Carissima Bijoux, Inc., 86 AD3d 631, 927 NYS2d 389 [2d Dept 2011], lv denied 17 NY3d 716, 934 NYS2d 373 [2011]). Indeed, there is no showing that defendant derives any revenue from goods used or consumed in New York.

If jurisdiction is found, it must be under the "regularly . . . solicits business" prong of 302 (a) (3) (i). It appears that while an RV must be purchased from the facility in Maryland, parts and accessories might be available for online purchases, although that issue is not completely clear. Plaintiffs contend that customers may purchase parts and accessories online while defendant denied that. Thus, the question becomes whether the ability to purchase parts and accessories online is sufficient to constitute "regularly soliciting business" even though RVs cannot be purchased online.

Plaintiffs rely on Deutsche Bank Sec., Inc. v. Montana Bd. of Inv. (7 NY3d 65, 818 NYS2d 164 [2006], Garibaldi v. Quinn (72 AD3d 37, 895 NYS2d 156 [2d Dept 2010]), and LaMarca v. Pak-Mor Mfg. Co., 95 NY2d 201, 713 NYS2d 304 [2000]). However, both Deutsche Bank and Grimaldi were contract actions where jurisdiction was predicated on CPLR

302 (a) (1) - the transaction of business within New York. LaMarca was decided under

CPLR 302 (a) (3) (ii), which is not applicable here.

In Murdock v. Arenson Intl. USA, Inc. (157 AD2d 110, 554 NYS2d 887 [1990]), the First Department held that doing $9,000 of business in New York, which constituted only 0.05 of the [*3]defendant's total sales, when the transactions were unrelated to the litigation, did not rise to the level of "do[ing] or solicit[ing] business" for purposes of 302 (a) (3) (i). Here, while plaintiffs have demonstrated that defendant maintains a website from which parts and accessories may be purchased (again, the parties disagree on this point), that alone, even if true, does not seem to be sufficient to predicate jurisdiction for an alleged tort completely unrelated to defendant's online sales (see also Faramand v. Dalhousie Univ., 30 Misc 3d 1210 (A), 2011 WL 103539 [Sup Ct, NY County 2011], affd 96 AD3d 618, 947 NYS2d 459 [1st Dept 2012]; Rollins v. People's Bank Corp., 2004 WL 2725039 [SDNY])..

Since plaintiff has the burden on this issue (Paolucci v. Kamas, 84 AD3d 766, 922 NYS2d 792 [2d Dept 2011], lv denied 18 NY3d 803, 938 NYS2d 861 [2012]; CRT Inv., Ltd. v. BDO Seidman , LLP, 85 AD3d 470, 925 NYS2d 439 [1st Dept 2011]; Roldan v. Dexter Folder Co., 178 AD2d 589, 577 NYS2d 483 [2d Dept 1991]), and has failed to meet that burden, and

has not asked the court to withhold a decision pending further discovery, the motion to dismiss must be granted.

Submit order on notice.

Dated:Little Valley, New York

August 10, 2012

_________________________

HON. LARRY M. HIMELEIN