Blustein v Akam

[*1] Blustein v Akam 2017 NY Slip Op 50777(U) Decided on May 2, 2017 Supreme Court, Orange County Vazquez-Doles, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 2, 2017
Supreme Court, Orange County

Stacy Blustein, PLAINTIFF,

against

Yannick Akam, CADET SABRINA, PERRY L. JONES, DAWN JONES, PLYMOUTH ROCK ASSURANCE and PALISADES SAFETY AND INSURANCE ASSOCIATION, DEFENDANTS.



7855/2016



Harwood Lloyd, LLC

Attorney for Defendants Plymouth Rock Assurance and

Palisades Safety and Insurance Association

350 Fifth Avenue, 59th Floor

New York, New York 10118

Sobo & Sobo, LLP

Attorneys for Plaintiff

One Dolson Avenue

Middletown, New York 10940
Maria S. Vazquez-Doles, J.

The following papers numbered 1 - 13 were read on the motion to dismiss the complaint as against defendants, Plymouth Rock Assurance and Palisades Safety and Insurance Association ("Plymouth/Palisades") pursuant to CPLR 3211(a)(2)(7) and (8):

Notice of Motion/ Denning Affirmation/ Exhibits A-I/ Memo of Law 1-12

Affirmation in Opposition 13

Upon review of the foregoing, it is ORDERED that the defendants' motion is granted on the ground of lack of personal jurisdiction; and it is further

ORDERED that all claims and cross-claims are dismissed as against defendants, Plymouth Rock Assurance and Palisades Safety and Insurance Association.

Plaintiff, a New Jersey resident, is seeking UIM benefits from her New Jersey automobile insurance policy issued by defendant, Palisades Safety and Insurance Association to plaintiff and her husband, Glen H. Blustein. Plaintiff was involved in an automobile accident which occurred on the George Washington Bridge May 28, 2013. Plaintiff was a passenger in the Jones' vehicle that was rear-ended by a vehicle operated by defendant, Yannick Akam and owned by defendant, Sabrina Cadet. Plaintiff initially filed a complaint against Akam, Cadet, Perry and Dawn Jones and then subsequently filed an amended complaint to name Plymouth/Palisades as defendants. Plaintiff settled her claim against Adam for the available insurance policy limit with the consent of and waiver of subrogation rights by Plymouth/Palisades. Plaintiff's claims against Plymouth/Palisades include, inter alia, breach of contract and bad faith.

"A foreign corporation is amenable to suit in New York courts under CPLR 301 if it has engaged in such a continuous and systematic course of doing business here that a finding of its presence in this jurisdiction is warranted " (Goel v. Ramachandran, 111 AD3d 783, 786, [2d Dept 2013] quoting Landoil Resources Corp. v. Alexander & Alexander Servs., 77 NY2d 28, 33 [1990] [internal quotation marks omitted] ). Any exercise of jurisdiction over a foreign corporation on the basis of state law must comport with the due process requirement that "the corporation's affiliations with the State in which suit is brought are so constant and pervasive 'as to render [it] essentially at home in the forum State' " (Daimler AG v. Bauman, ——— U.S. ———&mdash, 134 S.Ct. 746, 751[2014] quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, ). Here, in opposition to Plymouth/Palisades' motion to dismiss the complaint insofar as asserted against it, the plaintiff has failed to established that said defendants have any connection or conduct any business in New York. (see Magdalena v. Lins, 123 AD3d 600, 601 [1 Dept 2014]). Contrary to the plaintiff's contention, exercising general jurisdiction over Daimler does not comport with due process (see Daimler AG v. Bauman, ——— U.S. ———&mdash, 134 S.Ct. at 759—760 [2014]; Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. at 919 [2011]).

CPLR 302(a)(1) grants New York courts jurisdiction over nondomiciliaries when the action arises out of the nondomiciliaries' "transact [ion of] any business within the state" (CPLR 302[a][1] ). In order to determine whether personal jurisdiction exists under CPLR 302(a)(1), a court must determine (1) whether the defendant transacted business in New York and, if so, (2) whether the cause of action asserted arose from that transaction (see Licci v. Lebanese Can. Bank, SAL, 20 NY3d 327, 334 [2012]; Fischbarg v. Doucet, 9 NY3d 375, 380 [2007]; Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 NY3d 65, 71 [2006]). In order to satisfy the second prong of the jurisdictional inquiry, there must be an " articulable nexus" (McGowan v. Smith, 52 NY2d 268, 272 [1981]), or a "substantial relationship" (Kreutter v. McFadden Oil Corp., 71 NY2d 460, 467 [1988]), between a defendant's in-state activity and the cause of action asserted (see Licci v. Lebanese Can. Bank, SAL, 20 NY3d at 339; Pichardo v. Zayas, 122 AD3d 699, 701 [2d Dept 2014]).

Here, plaintiff has failed to establish, prima facie, that Plymouth/Palisades conducted purposeful activities in New York which bare a "substantial relationship" or an "articulable nexus" to the subject matter of this action (see Johnson v. Ward, 4 NY3d 516, 520 [2005]; Okeke v. Momah, 132 AD3d 648, 650 [2d Dept 2015]; Pichardo v. Zayas, 122 AD3d at 701; Armouth [*2]Intl. v. Haband Co., 277 AD2d 189, 191 [2d Dept 2000]; Menary v. Outward Bound, 262 AD2d 616, 617 [2d Dept 1999]). There is no showing that the causes of action asserted in the complaint arose from any activities in or contacts with New York as plaintiff. This Court lacks personal jurisdiction over Plymouth/Palisades pursuant to CPLR 302(a)(1). (see Fernandez v Daimlerchrysler, A.G. 143 AD3d 765 [2d Dept 2016]).

While the ultimate burden of proof rests with the party asserting jurisdiction (see Brandt v. Toraby, 273 AD2d 429, 430 [2d Dept 2000]), the plaintiffs, in opposition to a motion to dismiss pursuant to CPLR 3211(a)(8), need only make a prima facie showing that the defendant was subject to the personal jurisdiction of the Supreme Court (see Opticare Acquisition Corp. v. Castillo, 25 AD3d 238, 243 [2d Dept 2005]). Here, since plaintiff opposes the motion on ground that discovery is necessary to establish personal jurisdiction, she need only establish that facts might exist to exercise personal jurisdiction over Plymouth/Palisades (see Doe v McCormack, 100 AD3d 684 [2d Dept 2012]). Plaintiff 's opposition is completely silent as to any alleged connection or business activity defendants' may have in New York and the amended complaint merely alleges that said defendants are authorized to do business, maintain an office and did business in the State of New York.

Thus, viewing the evidence in the light most favorable to the plaintiff, (see Brandt v. Toraby, 273 AD2d at 430), such bare and conclusory allegations fail to demonstrate that the defendants transacted any business in New York in connection with the plaintiff's causes of action. Plaintiff is merely hopeful that discovery will reveal the necessary contacts to establish jurisdiction.

In light of the above, all other contentions need not be considered.

The foregoing constitutes the decision of this Court.

Dated: May 2, 2017

Goshen, New York

ENTER

_____________________________________

Hon. Maria S. Vazquez-Doles, J.S.C.