Ford v Bhatoe

[*1] Ford v Bhatoe 2017 NY Slip Op 51740(U) Decided on December 19, 2017 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2017
Supreme Court, Kings County

Hassen Ford, Plaintiff,

against

Baljit Bhatoe, 6391567 CANADA, INC. And CHERYL REEDY FARLEY, Defendants.



501642/17



Attorney for Plaintiff

Gary Rawlins, Esq.

777 Westchester Avenue Suite 101

White Plains, New York 10604

(212) 926-0050

Attorney for Defendant

Barrett, LLC

145 West Passaic Street

Maywood, New Jersey 07607

(201) 843-5900
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion by defendant Baljit Bhatoe (hereinafter Bhatoe), filed with the Kings County Clerk's office (hereinafter KCCO) on September 14, 2017, under motion sequence number five, for an [*2]order pursuant to CPLR 2221 granting re-argument and renewal: (1) of Bhatoe's prior motion to dismiss the complaint for lack of personal jurisdiction pursuant to CPLR 302 (a) and 3211 (a) (8); and (2) his prior cross motion to extend the time to dismiss the complaint; and (3) his opposition to plaintiff Hassen Ford's (hereinafter Ford) motion for an order pursuant to CPLR 3215 granting a default judgment against Bhatoe.

- Notice of motion

- Affirmation in support

- Exhibits A-C

- Affidavit in opposition

- Transcripts of Court decision rendered on August 18, 2017

- Exhibits A-D

- Reply affirmation

- Exhibits A-B

BACKGROUND

On January 26, 2017, Ford commenced the instant action for damages for personal injuries by electronically filing a summons and complaint (hereinafter the commencement papers) with the KCCO. On May 19, 2017, Ford filed an amended verified complaint. The amended verified complaint contains thirty-six allegations of fact in support of two denominated causes of action. The first cause of action is for damages for personal injuries sustained in a motor vehicle accident. The second cause of action is for punitive damages.

The amended verified complaint alleges the following salient facts among others. Bhatoe is a resident of Ontario, Canada and the owner and operator of a tractor trailer that is registered in the State of Indiana (the Indiana vehicle). On February 14, 2016, while Bhatoe was operating the Indiana vehicle and Ford was operating his vehicle on Route 81 South at Segment 0221 in Susquehanna County, Pennsylvania, the two vehicles collided (hereinafter the subject accident). Ford alleges that Bhatoe's negligent operation of the Indiana vehicle was the cause of the collision and the serious injuries he sustained.

By notice of motion filed on June 19, 2017, under motion sequence number one, defendants Bhatoe and 6391567 Canada, Inc. jointly moved for an order pursuant to CPLR 3211 (a) (8) dismissing the complaint for lack of personal jurisdiction.

By notice of motion filed on July 26, 2017, under motion sequence number two, Ford moved for an order pursuant to CPLR 3215 granting a default judgment against all the defendants for failure to answer the complaint.

By notice of cross motion filed on August 1, 2017, under motion sequence number four, Bhatoe and 6391567 Canada, Inc. jointly moved for an order pursuant to CPLR 2004 and 2005 extending their time to move to dismiss the complaint for lack of personal jurisdiction.

By notice of discontinuance filed on October 3, 2017, plaintiff discontinued the action as against defendant 6391567 Canada, Inc.

On August 18, 2017, the Court denied the motion and cross motion of Bhatoe and 6391567 Canada, Inc, under motion sequence number one and four; and granted Ford's motion [*3]for a default judgment under motion sequence number two. The transcript of the Court's decision rendered on August 18, 2017 was submitted without objection by the plaintiff at oral argument of the instant motion. The parties were directed to settle the August 18, 2017 oral order. Ford submitted a proposed Order on October 13, 2017 which the Court modified.

LAW AND APPLICATION

CPLR 2221 sets forth the procedure for making a motion affecting a prior order and states the following:

(d) A motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry.(e) A motion for leave to renew: 1. shall be identified specifically as such; 2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and 3. shall contain reasonable justification for the failure to present such facts on the prior motion.(f) A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made. If a motion for leave to reargue or leave to renew is granted, the court may adhere to the determination on the original motion or may alter that determination.

Motions for re-argument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision (Barnett v Smith, 64 AD3d 669, 670—671 [2nd Dept 2009] citing, E.W. Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d 653 at 654 [2nd Dept 2007]; see also, Beverage Marketing USA, Inc. v South Beach Beverage Co., Inc., 58 AD3d 657 [2nd Dept 2009]).

After reviewing the prior motion papers that are the subject of the instant motion, and the affidavit, affirmation, and arguments presented in the instant motion, Bhatoe has demonstrated that the court overlooked or misapprehended the law in arriving at its earlier decision.

The amended complaint alleges that on February 14, 2016, Bhatoe, a resident of Ontario, Canada was operating a motor vehicle, registered in the State of Indiana, in a negligent manner and caused a motor vehicle accident in the State of Pennsylvania. Neither the amended complaint nor Ford's opposition papers contained any allegation that Bhatoe had any contact with the State of New York.

New York courts may not exercise general jurisdiction against a defendant under the United States Constitution or the state's general jurisdiction statute unless the defendant is domiciled in the state (Daimler AG v Bauman, ———U.S. ———&mdash, 134 S. Ct. 746, 760—761, 187 [*4]L.Ed.2d 624 [2014]; Magdalena v Lins, 123 AD3d 600, 601 [1st Dept 2014] ) or in an exceptional case where "an individual's contacts with a forum [are] so extensive as to support general jurisdiction notwithstanding domicile elsewhere" (Reich v Lopez, 858 F.3d 55, 63 [2d Cir.2017]).

While the ultimate burden of proof rests with the party asserting jurisdiction, the plaintiff, in opposition to a motion to dismiss for lack of personal jurisdiction, need only make a prima facie showing that the defendants were subject to the personal jurisdiction of the Supreme Court (Santiago v Highway Freight Carriers, Inc., 153 AD3d 750 [2nd Dept 2017]). Although a plaintiff is not required to plead and prove personal jurisdiction in the complaint, where jurisdiction is contested, the ultimate burden of proof rests upon the plaintiff (Hopstein v Cohen, 143 AD3d 859 [2nd Dept 2016]).

Where the plaintiff opposes a motion to dismiss for lack of personal jurisdiction on the ground that discovery on the issue of personal jurisdiction is necessary, the plaintiff need only demonstrate that facts may exist to exercise personal jurisdiction over the defendant (Santiago v Highway Freight Carriers, Inc., 153 AD3d 750 [2nd Dept 2017]).

Ford contends that the commencement papers were served on Bhatoe pursuant to CPLR 308 while Bhatoe was actually present within the State of New York thus conferring personal jurisdiction to the New York State Courts. The fact that service was effectuated in accordance with CPLR 308 on an individual who is not domiciled in the State of New York is not sufficient by itself to confer Constitutional personal jurisdiction. In order to determine whether personal jurisdiction exists over a non-domiciliary, 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 (Id.).

Whether a non-resident defendant has transacted business within New York, so as to support exercise of personal jurisdiction under long-arm statute, is determined under the totality of the circumstances, and rests on whether the defendant, by some act or acts, has purposefully availed itself of the privilege of conducting activities within New York (Leuthner v Homewood Suites by Hilton, 151 AD3d 1042 [2nd Dept 2017]).

In order to satisfy the second prong of the jurisdictional inquiry, whether a cause of action asserted arose from transaction in New York, for purposes of personal jurisdiction under long-arm statute, there must be an articulable nexus or a substantial relationship between a defendant's in-state activity and the cause of action asserted (Id.).

In the case at bar, Ford did not oppose Bhatoe's motion on the ground that discovery on the issue of personal jurisdiction was necessary. Ford apparently assumed that technical compliance with CPLR 308 would be sufficient to effectuate personal jurisdiction. Ford, however, did not make a prima facie showing that Bhatoe was subject to the personal jurisdiction of the Supreme Court (Santiago v Highway Freight Carriers, Inc., 153 AD3d 750 [2nd Dept 2017]). Accordingly, the prior court order granting Ford's motion for a default judgment against Bhatoe pursuant to CPLR 3215 is vacated and upon renewal is denied without prejudice. Furthermore, the prior court order denying Bhatoe's motion for an order pursuant to CPLR 3211 (a) (8) dismissing the complaint and denying his motion to extend its time to answer the complaint pursuant to CPLR 2004 are also vacated.

It is undisputed that Bhatoe was driving a tractor trailer at the time of the subject accident [*5]which he admittedly used to make interstate deliveries. Although Bhatoe averred that he did not engage in any business or other activities in the State of New York, that claim should be explored through appropriate discovery. Bhatoe's prior motions are stayed pending completion of discovery and additional evidentiary submissions on the discreet issue of Bhatoe's contacts, if any, with the State of New York. Accordingly, the parties are directed to appear in Part 52 at 10:00 am on January 9, 2018 for the purpose of executing such an order.

CONCLUSION

Baljit Bhatoe's motion under motion sequence number five, for an order pursuant to CPLR 2221 granting re-argument and renewal on: (1) his prior motion under motion sequence number one to dismiss the complaint for lack of personal jurisdiction pursuant to CPLR 302 (a) and 3211 (a) (8); (2) his prior cross motion under motion sequence number four to extend the time to dismiss the complaint pursuant to CPLR 2004 and 2005; and (3) his opposition to plaintiff Hassen Ford's motion for an order pursuant to CPLR 3215 granting a default judgment against Bhatoe is decided as follows:

(a) the branch of the order issued August 18, 2017 denying Bhatoe's motion under motion sequence number one is vacated,(b) the branch of the order issued August 18, 2017 denying Bhatoe's cross motion under motion sequence number four is vacated,(c) the branch of the order issued August 18, 2017 granting Hassen Ford's motion under motion sequence two is vacated,(d) Bahtoe's instant motion under motion sequence number five is stayed pending completion of discovery and additional evidentiary submissions on the discreet issue of Bhatoe's contacts, if any, with the State of New York; and(e) Ford and Bhatoe are directed to appear in Part 52 at 10:00 am on January 9, 2018 for the purpose of executing a discovery order consistent with this decision and order.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C.