Mobile Training & Educ., Inc. v Aviation Ground Schools of Am.
Annotate this CaseDecided on June 23, 2010
Supreme Court, New York County
Mobile Training & Education, Inc., Plaintiff,
against
Aviation Ground Schools of America d/b/a AVIATION & ELECTRONIC SCHOOLS OF AMERICA, CARRIE COURTER, JAMES DOYLE, JAMIE DOYLE and JOHN DOES No. 1-10, Defendants.
602342/08
Counsels on the matter were Jody N. Gerber, Esq., for Plaintiff, and Theresa Trzaskoma, Esq. and Nicole Barrett, Esq. of Brune & Richard LLP for Defendants.
Eileen Bransten, J.
In motion sequence number 001, defendants Aviation Ground Schools of America d/b/a Aviation & Electronic Schools of America, Carrie Courter, James Doyle and Jamie Doyle move, pursuant to CPLR 3211(a)(7) and (a)(8), to dismiss Plaintiff s Amended Verified Complaint.
The court addresses the issue of personal jurisdiction raised by CPLR 3211(a)(8) as well as
the sufficiency of the pleadings under CPLR 3211(a)(7).
I.Procedural History
Plaintiff Mobile Training & Education ("MT & E") served its Summons and
Verified Amended Complaint on Defendants Aviation Ground Schools of America d/b/a
Aviation & Electronic Schools of America ("AESA") and Carrie Courter, James Doyle, and
Jamie Doyle (the "Individual Defendants") in California. Defendants have not answered, but
filed a motion to dismiss for failure to state a cause of action and lack of personal jurisdiction.
II.Factual Background
[*2]Defendant AESA is a provider of off-site
educational courses in the fields of aviation, electronics, telecommunications and computers,
organized under the laws of California, having offices in Colfax, California. AESA was served
with process in California. Affidavit of James Doyle ("Doyle Aff."), ¶¶ 4, 5. AESA
states it "has only limited contacts with New York" and "is not a party to any New York
contracts." Doyle Aff., ¶ 6. Plaintiff MT & E claims Defendant AESA conducts classes in
New York. Affirmation in Opposition, ¶ 16, Ex. B.
Plaintiff MT & E is a New York corporation, with offices in New York City. Complaint,
¶ 1. AESA and MT & E are competitors in providing aviation and electronics continuing
education programs. Complaint, ¶ 10.
Individual Defendant Courter is a secretary for AESA. Courter denies any
connections with New York whatsoever. See Affidavit of Carrie Courter. Individual
Defendants Jamie Doyle is responsible for AESA's sales and accreditation, and, other than a
personal visit to New York in 1995, has no affiliation with the state. See Affidavit of
Jamie Doyle. Individual Defendant James Doyle is the president and CEO of AESA, and also
claims no connection to New York beyond occasional personal visits. See Doyle
Aff..
III.Motion to Dismiss for Lack
of Personal Jurisdiction under CPLR 3211 (a) (8)
A.Standard of Law
The plaintiff, as the party asserting jurisdiction, bears the burden of proof of
establishing the existence of personal jurisdiction. See O'Brien v. Hackensack University
Medical Center, 305 A.D.2d 199, 200 (1st Dep't 2003).
Defendants urge a standard whereby plaintiff must make a prima facie showing that
personal jurisdiction exists. See Bill-Jay
Mach. Corp. v. Koster Indus., Inc., 29 AD3d 504, 505 (2nd Dep't 2006). In the context
of a CPLR 3211(a)(8) motion to dismiss, however, a plaintiff is not required to make a prima
facie showing of jurisdiction. Such a requirement could "impose undue obstacles for a plaintiff,
particularly one seeking to confer jurisdiction under the long arm' statute... [because] the
jurisdictional issue is likely to be complex." Peterson v. Spartan Indus., Inc., 33 NY2d
463, 467 (1974). In order to defeat a dismissal motion, a plaintiff need only demonstrate that
jurisdictional facts "may exist" and that it is entitled to the disclosure expressly sanctioned by
CPLR 3211(d). See id. at 466.[FN1] In determining whether Plaintiff has carried
this minimal burden, the Court must view [*3]the jurisdictional
allegations in the pleadings and supporting affidavits in the light most favorable to the plaintiff
and resolve all doubts in its favor. See Brandt v. Toraby, 273 AD2d 429, 430 (2d Dept
2000).
On this record, where AESA made a pre-answer motion to dismiss the action under
CPLR 3211(a)(8), Plaintiff MT & E need only demonstrate that jurisdictional facts sufficient to
confer personal jurisdiction on Defendants "may exist" in order to defeat AESA s motion to
dismiss.
B.Long-Arm Statute
To determine whether a non-domiciliary may be sued in New York, the court
must first determine whether the New York long-arm statute confers jurisdiction over the
non-domiciliary in light of its contacts with this state. If the defendant's relationship with New
York falls under the reach of CPLR § 302, the court must then determine whether the
exercise of jurisdiction comports with constitutional due process.
In the complaint, Plaintiff bases jurisdiction on CPLR § 302(a) without
specifying the subsection on which it relies. In Plaintiff's counsel's Affirmation in Opposition to
the motion to dismiss, Plaintiff clarifies its basis of jurisdiction as CPLR § 302(a)(3)(ii), the
New York long-arm statute that provides for personal jurisdiction over non-domiciliaries who
commit tortious acts outside New York that cause injury within New York.[FN2]
CPLR § 302(a)(3)(ii) confers jurisdiction on non-domiciliaries only when the following
five elements are met: (1) the defendant committed a tortious act outside the State; (2) the cause
of action arises from that act; (3) the act caused injury to a person or property within the State;
(4) the defendant expected or should reasonably have expected the act to have consequences in
the State; and (5) the defendant derived substantial revenue from interstate or international
commerce. See CPLR § 302(a)(3)(ii); see also LaMarca v. Pak-Mor
Mfg. Co., 95 NY2d 210, 214 (2000).
The complaint pleads that AESA is a California entity. Thus, in order to establish
personal jurisdiction MT & E must show: (1) AESA's commission of a tort outside New York;
(2) that MT & E's claim of unfair business practices arises from AESA's tortious act; (3) injury
to MT & E in New York; (4) that AESA should reasonably have foreseen New York
consequences; and (5) that [*4]AESA derives substantial revenue
from interstate commerce. LaMarca, 95 NY2d at 214. The court will address each
element in turn.
1. Tort Outside of the State
Defendants argue in their motion to dismiss that Plaintiff has failed to allege an
out-of-state tort. For the purposes of this discussion of personal jurisdiction, the Court will
assume that Plaintiff has properly alleged a tort by AESA and the Individual Defendants. The
adequacy of Plaintiff's tort allegations will be discussed later in this Opinion.
2. Cause of Action Arises from that Tortious Act
The New York long-arm statute expressly provides that there must be a causal
connection between the cause of action and the alleged tortious act. In order to justify haling a
non-domiciliary into court in New York, where it does not have a "systematic course of doing
business" that would subject the defendant to traditional personal jurisdiction under CPLR
§ 301, there must exist "some articulable nexus between the business transacted and the
cause of action sued upon." McGowan v. Smith, 52 NY2d 268, 272-273 (1981) (internal
citations omitted).
The complaint alleges three tortious acts by the Defendants: (1) that Defendants
provided false information about Plaintiff's operations to educational officers at military bases
and to current students, and that Defendants harassed educational partners (Complaint ¶
10); (2) that Defendant Doyle physically and verbally harassed Plaintiff's students and
instructors at a training location in California (Complaint ¶ 11); and (3) Defendants
instituted frivolous ligation against MT & E in California. Complaint ¶ 12.
In opposition to the motion to dismiss, Plaintiff also alleges the "defendants'
wrongful actions cause[d] plaintiff to lose substantial sums of money from all classes conducted
throughout the U.S." and "[d]ue to defendants' conduct in spreading false statements, plaintiff
lost almost all of its students [and]... conducts virtually no classes in New York." Affirmation in
Opposition, ¶ 13. At oral argument, counsel for Plaintiff added the allegation that
Defendants contacted Verizon employees and Verizon's office in charge of additional education
and falsely claimed that MT & E was not a licensed provider. Transcript, 11:7-11. Plaintiff does
not specify where Verizon's offices are located, the nature of MT & E's contracts with Verizon or
the site of AESA's alleged contacts with Verizon.
While the alleged acts outside of New York do not have an obvious causal
connection to the claimed injury of loss of customers and cessation of business in New York, the
court is obligated to take the allegations as true and draw all reasonable inferences in favor of the
plaintiff. See Cron v. Hargro Fabrics, 91 NY2d 362, 366 (1998). It is reasonable to
conclude that if Defendants wrongfully interfered with Plaintiff's business contracts or
customers, in particular if the contract was with a large interstate corporation such as Verizon
that likely has offices in New York, that the loss of customers and cancellation of classes in New
York could have resulted from the interference [*5]elsewhere.[FN3]
3. Injury Within the State
Plaintiff MT & E argues that AESA's allegedly wrongful acts, which took place
in California, West Virginia and Missouri, caused MT & E economic harm through loss of
customers and cancellation of classes in New York, its state of incorporation. However, a
financial loss occurring in the state where the harmed party is incorporated does not by itself
meet the "injury within the state" requirement. For a financial loss to rise to the level of "injury
within the state," the loss must occur in New York as a result of something other than MT & E's
mere incorporation here. In Fantis Foods, Inc. v. Standard Importing Co., Inc.,
49 NY2d 317, 326 (1980), the Court of Appeals stated that "residence or domicile of the injured
party within a State is not a sufficient predicate for jurisdiction, which must be based upon a
more direct injury within the State and a closer expectation of consequences within the State
than the indirect financial loss resulting from the fact that the injured person resides or is
domiciled there." The Second Circuit, in its construction of the New York long-arm statute, has
also rejected "derivative commercial injury in th[is] state" resulting solely from the fact that
plaintiff is domiciled in New York. See American Eutetic Welding Alloys Sales Co., Inc. v.
Alloys Corp., 439 F.2d 428, 433 (2d Cir. 1971).
However, economic injury has been found to a be a sufficient basis for jurisdiction
where the plaintiff conducts its business in New York and the injury stems from the threatened
loss of important New York customers. See Sybron Corp. v. Wetzel, NY2d 197, 131
(1978). The Court of Appeals in Sybron found that the wrongful solicitation of the
plaintiff's major customer in New York was sufficient to show injury within the state, even
where the alleged tortious act took place outside the state. Inferences about the potential harm
from the alleged disclosure of plaintiff's trade secrets further supported the Sybron
court's analysis. However, the Sybron court did not limit its holding that economic injury
stemming from loss of customers in New York met the "injury within the state" prong only to
those cases where trade secrets were also acquired in New York.
Here, the complaint alleges no direct interference by AESA with MT & E's
customers or business in New York. However, an affirmation submitted by plaintiff MT & E's
counsel in opposition to AESA's motion to dismiss belatedly adds that defendants' alleged
provision of false information to "proposed students (Verizon employees and Armed Forces
personnel) and educational partners (West Virginia Community College and University of
Central Missouri)" caused Plaintiff to "lose substantial sums of money from all classes
conducted through the U.S. [and]...a cessation of plaintiff's New York classes." Affirmation in
Opposition, ¶ 13. Plaintiff also [*6]alleges in its opposition
that AESA conducted classes in New York in January 2006 and January/February 2009.
Affirmation in Opposition, Ex. B.[FN4] At oral argument, Plaintiff's counsel added that
defendants contacted Verizon employees and Verizon's office in charge of additional education
and falsely claimed that MT & E was not a licensed provider (Transcript, 11:7-11), and that MT
& E earned $354,000 in fees from Verizon for 166 students between April and July, 2006 but
had only 16 students in New York the following quarter. Transcript, 12:13-16, 22:9-16.
Depending on whether defendants have sold their courses in New York to former MT & E
clients, or solicited and acquired any of the New York customers of MT & E, this may constitute
the sort of in-state activity held sufficient to sustain jurisdiction in Sybron.
4. Reasonable Expectation of Consequences
Whether AESA had a reasonable expectation of consequences resulting from
its actions in New York is determined not by looking at the specific event that led to the injury
within the state, but, rather, by determining whether AESA could have foreseen consequences in
the forum generally. See Fantis, 49 NY2d at 326, n 4, citing Twelfth Ann.
Report of NY Judicial Conference, 1967, p. 344. Therefore, we do not have to determine if
AESA's alleged actions in California, West Virginia and Missouri gave rise to foreseeability of
injury in New York. Instead, if AESA does indeed conduct classes in New York as discussed
below in Section III(B)(5), it should reasonably expect consequences from its connection with
the forum state. In addition, if AESA has solicited MT & E customers in New York as discussed
above in Section III(B)(3), it is reasonable for AESA to foresee that injury to MT & E would
occur in New York.
5. Substantial Revenue from Interstate Commerce
In its complaint, Plaintiff fails to allege any facts showing that AESA or the
Individual Defendants derive substantial revenue from interstate commerce. See, e.g.,
Best Cellars Inc. v. Grape Finds at Dupont, Inc., 90 F. Supp. 2d 431, 448 [S.D.NY
2000). Plaintiff does attach a record of new instructors certified by AESA in August 2006 and
January/February 2008 to its Affirmation in Opposition. Affirmation in Opposition, Ex. A. An
inference can be drawn that defendants derive substantial revenue from interstate commerce
because AESA certified new instructors in seven different states in those two time periods.
While not conclusive evidence that AESA earned substantial revenue from interstate commerce,
for the purposes of this motion to dismiss, the court finds sufficient showing that such facts may
exist, (Peterson, 33 NY2d at 466) to establish the fifth requirement.
C.Summary of Personal Jurisdiction Test
1. As to AESA
Upon the above analysis, the court finds for the purposes of this motion to
dismiss, wherein the Plaintiff is provided all favorable inferences (see Leon v. Martinez,
84 NY2d 83, 87 (1994), that Plaintiff MT & E has alleged facts sufficient to provide
personal jurisdiction over AESA under [*7]CPLR 302(a)(3)(ii).
2. As to the Individual Defendants
Each of the Individual Defendants aver that they have limited or no connection to the State
of New York. With respect to Carrie Courter, James Doyle and Jamie Doyle, Plaintiff's
complaint, affirmation in opposition and oral argument offer no allegations that any of the
individuals caused injury within the state, had a reasonable expectation of consequences in New
York or earn substantial revenue from interstate commerce. Plaintiff has failed to establish a
basis on which to find long-arm jurisdiction upon the individual defendants pursuant to CPLR
§ 302(a)(3). Since no other source of jurisdiction is alleged as to each, the motion to
dismiss as to the Individual Defendants is granted.
D.Constitutional Due Process
Although not raised by the parties in their briefs, the Court notes that there is an
additional step to the jurisdictional analysis. The exercise of personal jurisdiction also must
comport with the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. See LaMarca, 95 NY2d at 216-219. A state may exercise personal
jurisdiction over a non-domiciliary defendant provided that the defendant has certain "minimum
contacts" with the forum "such that maintenance of the suit does not offend traditional notions of
fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310,
316 (1945). The test for "minimum contacts" has been refined over the years to whether a
defendant's "conduct and connection with the forum State" are such that it "should reasonably
anticipate being haled into court there." World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 297 (1980). If it is determined that a defendant has purposefully established
minimum contacts with the forum, those contacts may then be considered in connection with
other factors to determine whether the exercise of jurisdiction would comport with "fair play and
substantial justice." Burger King Corp. v. Rudzewicz, 471 U.S 462, 476 (1985).
Here, AESA is a provider of educational services attempting to sell its products in
New York and hoping to profit from sales to New Yorkers. AESA therefore has sufficient
minimum contacts with New York such that it could reasonably expect to be held responsible for
its actions in this state. Furthermore, AESA expected or should have expected that tortious
actions towards a competitor in New York would have consequences in New York. It would not
be unfair to ask AESA to appear in court in New York to answer for its actions that caused
injury here. This court concludes that jurisdiction over AESA in New York would not offend
traditional notions of fair play and substantial justice. Jurisdiction is therefore appropriate.
IV.Motion to Dismiss for Failure to State
a Cause of Action under CPLR 3211 (a) (7)
A. Standard of Law
On a motion to dismiss a complaint for failure to state a cause of action,
pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. See Goshen v.
Mutual Life Ins. Co. of New York, 98 NY2d 314, 326 (2002). The court must accept as true
the facts alleged in the complaint, [*8]accord plaintiffs the
benefit of every possible favorable inference, and determine only whether the facts as alleged fit
within any cognizable legal theory. See McGill v. Parker, 179 AD2d 98, 105 (1st Dep't
1992). In assessing a motion under CPLR 3211(a)(7), a court may freely consider affidavits
submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the
proponent of the pleading has a cause of action, not whether he has stated one. Leon, 84
NY2d at 87-88 (internal quotations and citations omitted).
Plaintiff's complaint alleges: (1) that Defendants provided false information about Plaintiff's operations to educational officers at military bases and to current students, and harassed educational partners (Amended Complaint, ¶ 11); (2) that Defendant James Doyle physically and verbally harassed students and instructors at a training location in California (Amended Complaint, ¶ 12); and (3) that Defendants instituted frivolous ligation against MT & E in California. (Amended Complaint, ¶ 13).
The complaint does not clearly state a cause of action, and on reply to Defendants motion to dismiss, Plaintiff alludes to a claim for unfair competition. Affirmation in Opposition, ¶¶ 4, 5, 8, 10.
The court will attempt to parse the language of the complaint and the affidavits supporting
the opposition to the motion to dismiss to determine if a cause of action has been sufficiently
pled.
1. Defamation
MT & E accuses AESA, through its CEO James Doyle, of providing false
information about MT & E to its students and potential customers. Amended Complaint, ¶
11. Unfortunately, MT & E does not specify a resulting cause of action. This court suggests that
these allegedly false statements may give rise to a cause of action for defamation, or one of its
derivatives, such as slander or trade libel. However, defamation of character is explicitly
excluded from the types of tortious acts outside the state that confer long-arm personal
jurisdiction. See CPLR § 302(a)(3); Pontarelli vShapero, 231 AD2d 407,
410 (1st Dep't 1996). Because this court would not have personal jurisdiction over AESA on a
cause of action for defamation, we will not address the sufficiency, or lack thereof, of MT & E's
pleadings for a defamation claim.
2. Common Law Claim for Tortious Interference with Business Relations
MT & E inartfully expresses a claim for either or both tortious interference
with contractual relations and tortious interference with prospective business relations. The
underlying wrongful acts are the allegations of "providing false information" and the physical
and verbal harassment of students and instructors by James Doyle. Amended Complaint,
¶¶ 10, 11.[FN5]
However, both possible causes of [*9]action fail. Plaintiff alleges
no specific contract or prospective business relationship.
Tortious interference with contract requires the existence of a valid contract between
the plaintiff and a third party, defendant's knowledge of that contract, defendant's intentional
procurement of the third party's breach of contract without justification, actual breach and
damages. See Lama Holding Co. v. Smith Barney, 88 NY2d 413, 424 (1996). Because
MT & E does not plead the existence of a valid contract between itself and any third party, this
claim has not been properly pled. The court need not address the further elements of this tort.
Tortious interference with prospective economic relations requires an allegation that
plaintiff would have entered into an economic relationship but for the defendant's wrongful
conduct. See Vigoda v. DCA Prods. Plus Inc., 293 AD2d 265 (1st Dep't 2002). In
Vigoda, the plaintiff's cause of action was dismissed because it could not name the
parties to any specific contract it would have obtained had the defendant not engaged in its
alleged wrongful behavior. Here, MT & E has similarly failed to satisfy the "but for" causation
required by this tort. Plaintiff does not identify any specific contract or business relationship that
was harmed. Mere mention of a loss of students from Verizon, without any mention of the
specific contract or business relationship MT & E had or hoped to have with Verizon, is
insufficient. This potential cause of action therefore also has not been properly pled.
3. Malicious Prosecution or Abuse of Process
MT & E alleges that "Defendants, in furtherance of their scheme to destroy MT
& E's business, instituted frivolous litigation against plaintiff MTE and several of its employees
in California" and that "MTE was compelled to retain counsel in California to defend against the
frivolous litigation and incurred great expense." Amended Complaint, ¶ 13. Providing
Plaintiff with all possible inferences, two possible causes of action arising from this allegation
are malicious prosecution and abuse of process.
Malicious Prosecution
The elements of the tort of malicious prosecution are: (1) the prosecution of a civil
action against the plaintiff; (2) by or at the instance of the defendant; (3) without probable cause;
(4) with malice; (5) which terminated in favor of the plaintiff; and (6) which caused special
injury. See Castro v. East End Plastic, Reconstructive & Hand Surgery, P.C., 47 AD3d
608, 609 (2d Dept 2008).
[*10]AESA admits it instituted civil ligation against
MT & E in California, thereby satisfying the first two elements. Doyle Affidavit, ¶¶
10, 11, Ex A.
However, MT & E does not allege any facts regarding the third element necessary
for this claim, that AESA filed its lawsuit without probable cause. Probable cause "consists of
such facts and circumstances as would lead a reasonably prudent person in like circumstances to
believe plaintiff guilty. Because obviously less in the way of grounds for belief will be required
to justify a reasonable [person] in bringing a civil rather than a criminal suit, when the
underlying action is civil in nature the want of probable cause must be patent." Fink v. Shawangunk Conservancy,
Inc., 15 AD3d 754, 755 (3d Dep't 2005) (internal citations omitted). MT & E makes no
allegation in the complaint or in its opposition to the motion to dismiss that the underlying action
lacked reasonable grounds. In Defendants' memorandum in support of its motion to dismiss,
AESA claims that several of its former employees had wrongfully provided AESA's confidential
information to MT & E, which MT & E used to run competing classes. Defendants'
Memorandum in Support of Motion to Dismiss ("Defendants' Memo"), p. 1). In cases where the
court is considering extrinsic evidence on a CPLR 3211 motion, "the allegations are not deemed
true . . . the motion should be granted where the essential facts have been negated beyond
substantial question by the affidavits and evidentiary matter submitted." Blackgold Realty
Corp. v. Milne, 119 AD2d 512, 513 (1st Dep't 1986), aff'd 69 NY2d 719 (1986).
AESA's motion clearly states reasons for bringing its previous suit that would justify a
reasonable person's belief that MT & E was liable in tort. Therefore, Plaintiff does not
sufficiently plead the third element of lack of probable cause.
The fourth element of malice is pled satisfactorily if the Plaintiff alleges that the
defendant had "a purpose other than the adjudication of a claim" when filing the underlying
action. Restatement (Second) of Torts § 674; see Engel v. CBS, Inc., 93 NY2d 195,
204 (1999]). MT & E claims the purpose of the California lawsuit was to destroy MT & E's
business. Plaintiff therefore sufficiently pleads the element of malice.
As to the fifth element of the tort of malicious prosecution, that the civil prosecution
terminate in plaintiff's favor, defendants urge that because AESA voluntarily dismissed the
California lawsuit before trial, it was not terminated in favor of MT & E. Defendants' Memo, p.
8. However, the cases cited by AESA in support of this position do not discuss whether a
voluntary dismissal by the plaintiff in the underlying action qualifies as a legal termination in the
plaintiff's favor. The question of whether such a voluntary dismissal qualifies as termination in
favor of the plaintiff is unresolved in New York. It is settled that if the case was voluntarily
dismissed as a result of a settlement or compromise, it would not support a claim for malicious
prosecution. See Smith-Hunter v. Harvey, 95 NY2d 191, 196-97 (2000). Here, there is
no evidence that the dismissal stemmed from such an agreement. Assuming the other elements
are met, if "the earlier action was terminated with the consent of the defendant but without
inducement or compromise" then the complaint sufficiently alleges malicious prosecution.
Louvad Realty Corp. v. Anfang, 267 A.D. 567, 568 (1st Dep't 1944).
Finally, MT & E does not allege any special injury. Special injury is "some concrete
harm that is considerably more cumbersome than the physical, psychological or financial
demands of defending a lawsuit." Engel v. CBS, Inc., 93 NY2d 195, 205 (1999). Here,
MT & E alleges only that it suffered the expense of defending against the lawsuit in California,
which is decidedly not special.
[*11]An attempt to wrangle a cause of action for
malicious prosecution from the vague allegations in MT & E's complaint fails. Plaintiff has not
pleaded the necessary elements of probable cause, malice and special injury.
Abuse of Process
Abuse of process has three essential elements: (1) regularly issued process, either
civil or criminal; (2) an intent to do harm without excuse or justification; and (3) use of the
process in a perverted manner to obtain a collateral objective See Greco v. Christoffersen, 70 AD3d 769, 770 (2d Dep't 2010).
However, MT & E makes no allegation that AESA misused the civil process to achieve an
objective outside the proper scope of the commenced litigation. See Hornstein v. Wolf,
67 NY2d 721, 723 (1986). Despite this court's liberal reading of the complaint, it is evident that
MT & E also fails to state a claim for abuse of process.
V.Conclusion
Accordingly, it is
ORDERED that defendants Aviation Ground Schools of America d/b/a Aviation &
Electronic Schools of America, Carrie Courter, James Doyle and Jamie Doyle's motion
(sequence no. 001) to dismiss Plaintiff's Amended Verified Complaint is granted for lack of
personal jurisdiction for that part of the complaint against Carrie Courter, James Doyle and
Jamie Doyle; and it is further
ORDERED that defendants Aviation Ground Schools of America d/b/a Aviation &
Electronic Schools of America, Carrie Courter, James Doyle and Jamie Doyle's motion
(sequence no. 001) to dismiss Plaintiff's Amended Verified Complaint is granted as against
AESA for plaintiff's failure to state a cause of action. Plaintiff is granted leave to file and serve a
second amended complaint within thirty (30) days after service of a copy of this order with
notice of entry. The amended complaint must include allegations sufficient to meet every
element of at least one specified cause of action.
This constitutes the decision and order of the court.
Dated: New York, New York
June 23, 2010
ENTER:
/s/
Hon. Eileen Bransten, J.S.C.
Footnotes
Footnote 1:
CPLR 3211(d) provides: "Facts unavailable to opposing party. Should it appear from
affidavits submitted in opposition to a motion made under subdivision (a) or (b) that facts
essential to justify opposition may exist but cannot then be stated, the court may deny the
motion, allowing the moving party to assert the objection in his responsive pleading, if any, or
may order a continuance to permit further affidavits to be obtained or disclosure to be had and
may make such other order as may be just."
Footnote 2:
Plaintiff claims only CPLR § 302(a)(3)(ii) as a possible basis for jurisdiction
over AESA and the Individual Defendants. Accordingly, the court does not address other bases
for personal jurisdiction over non-domiciliaries.
Footnote 3:
Defendant James Doyle submitted an affidavit in support of the motion to dismiss
that attached exhibits purporting to show that MT & E continued to certify electronics
technicians in New York in late 2006 and all of 2007. Without determining the credibility or
accuracy of that information, it does not refute Plaintiff's claim that it conducts "virtually no
classes in New York" as one could infer that the certifications granted in 2006-07 were far fewer
than the number granted prior to the alleged tortious conduct.
Footnote 4:
Plaintiff's allegations of wrongdoing by AESA are limited to Fall 2006 and March
2007, which would only support an inference that classes conducted by AESA in
January/February 2009, and not those held in January 2006, could damage MT & E.
Footnote 5:
Though this court has no jurisdiction over defamation claims, where multiple causes
of action arise from the same alleged actions of the defendant, each cause of action must be
analyzed separately by the Court regarding long-arm personal jurisdiction (see, e.g.,
Nasso v. Seagal, 263 F. Supp. 2d 596 (E.D.NY 2003); Cosmetech Int'l v. Der Kwei
Enter. & Co., 943 F. Supp. 311 (S.D.NY 1996). In Competitive Techs., Inc. v. Pross,
14 Misc 3d 1224[A], (Sup. Ct., Suffolk County 2007), where two causes of action arose from the
same libelous statements posted on the internet, the court threw out defamation cause of action
because it was explicitly barred under § 302(a)(3) but dismissed the intentional infliction of
emotional distress claim only after an analysis of whether the facts met § 302(a)(3)
requirements. Therefore, the court will independently analyze the remaining possible causes of
action, even though they are based on allegations of defamation.
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