Fishberg v Januszewski

[*1] Fishberg v Januszewski 2014 NY Slip Op 50696(U) Decided on April 30, 2014 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 30, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, Schoenfeld, Ling-Cohan, JJ
570083/14.

Keith Fishberg, Plaintiff-Appellant, - -

against

Patryk Januszewski, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), dated January 11, 2013, which granted defendant's motion to dismiss the complaint for lack of personal jurisdiction.

Per Curiam.

Order (Margaret A. Chan, J.), dated January 11, 2013, reversed, with $10 costs, motion denied and complaint reinstated.

Personal jurisdiction was obtained over defendant, a Massachusetts resident, pursuant to CCA 404(a)(1), Civil Court's long-arm statute and the counterpart to CPLR 302(a)(1). It is undisputed on this record that defendant "enter[ed] into an agreement with [plaintiff,] a New York [City] employer[,] which contemplated and resulted in a continuing relationship between them" (George Reiner & Co. v Schwartz, 41 NY2d 648, 653 [1977]), and physically came to New York City to meet with plaintiff and receive payment, "acts in furtherance of the performance of the contract" (A. Millner Co. v Noudar, Lda., 24 AD2d 326, 331 [1966]), which, we note, contained a New York choice of law provision (see Lazard Freres & Co. v West Group Props., 3 AD3d 351, 352 [2004]). These acts were sufficient to establish that defendant transacted business in New York City (see Front, Inc. v Khalil, 103 AD3d 481, 482 [2013]; see also Agency Rent A Car System, Inc. v Grand Rent A Car Corp., 98 F3d 25, 30 [1996]), and that there was a substantial relationship between defendant's contacts with the City and plaintiff's cause of action for breach of the employment agreement (see Smary Pros, Lts. v Straub, 24 AD3d 653, 654 [2005]).

From a procedural standpoint, we find no violation of the single-motion rule (see CPLR 3211[e]), since it does not appear that defendant's prior dismissal motions were decided on the merits (see Rivera v Board of Educ. of City of NY, 82 AD3d 614 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 30, 2014