Kalayjian v Premier Salons Intl., Inc.

[*1] Kalayjian v Premier Salons Intl., Inc. 2010 NY Slip Op 52099(U) [29 Misc 3d 1230(A)] Decided on December 3, 2010 Supreme Court, Westchester County Loehr, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2010
Supreme Court, Westchester County

Rosey Kalayjian, Plaintiff,

against

Premier Salons International, Inc., JOHN DOE d/b/a STONEWATER SPA AND BOUTIQUE, PREMIER SALONS CANADA, INC., PREMIER SALONS LTD., and MICHAEL KRZYZAK, Defendants.



14256/10



LAW OFFICE OF STEPHEN J. CARRIERO LLC

Attorney for Plaintiff

27 Fifth Street

Stamford, CT 06905

JONES GARNEAU, LLP

Attorneys for the Spa Defendants

670 White Plains Road - Penthouse

Scarsdale, NY 10583

MICHAEL KRZYZAK

Defendant pro se

Gerald E. Loehr, J.

Upon the foregoing papers, as alleged in the Complaint, on January 16, 2005, Plaintiff, a New York resident, was sexually assaulted by Defendant Michael Krzyzak, a registered massage therapist.[FN1] Plaintiff claims the assault occurred at Stonewater Spa in Greenwich, Connecticut, which is owned, operated and/or managed by the other named corporate Defendants. On January 16, 2008, Plaintiff filed a civil action against the Defendants named in this action in the United States District Court for the Southern District of New York (08 Civ. 421). On March 9, 2010, the District Court dismissed the Complaint based on a lack of diversity.[FN2] On June 2, 2010, Plaintiff commenced this action. The Complaint asserts nine causes of action: assault, negligence, negligent hiring/supervision, negligent infliction of emotional distress, negligence per se, invasion of privacy, premises liability, Connecticut Unfair Trade Practices Act and intentional infliction of emotional distress.

The Spa Defendants move to dismiss the Complaint pursuant to CPLR 3211. Premier Salons International, Inc., Premier Salons Canada, Inc. and Premier Salons Ltd. (collectively, the "Premier Salons") move to dismiss for a failure to state a cause of action, asserting the Plaintiff has named the wrong defendants. Such Defendants have submitted evidence that on the date of the alleged assault, they had no ownership interest in, nor managed, Stonewater Spa which was, in fact, owned and operated by Spa Capital LLC, a wholly owned subsidiary of Premier Salons, Inc. In response, Plaintiff has submitted no evidence that rebuts these facts. It is well settled that bare legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on a motion to dismiss for a failure to state a cause of action. When the moving party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action, not whether she has stated one (Sweeney v Sweeney, 71 AD3d 989 [2d Dept 2010]). Accordingly, the Complaint is dismissed against the Premier Salons Defendants.

Stonewater Spa [FN3] moves to dismiss the Complaint for a lack of jurisdiction. In the alternative, Stonewater Spa moves to dismiss the First, Sixth and Ninth Causes of Action as being barred by the applicable statute of limitations.

Addressing the statute of limitations first, where a cause of action accrues without the State but to a resident of this State, the New York statue of limitations applies (CPLR 202; [*2]Martin v Julius Dierck Equipment Co., 43 NY2d 583 [1978]). The First Cause of Action is for assault, and the Ninth Cause of Action is for intentional infliction of emotion distress. Both Causes of Action are asserted against all of the Defendants.[FN4] The statute of limitation for both assault and intentional infliction of emotional distress is one year (CPLR 215[3]; Krioutchkova v Gaad Realty Corp, 28 AD3d 427, 428 [2d Dept 2006]; Kwarren v American Airlines, 303 AD2d 722 [2d Dept 2003]). The Causes of Action accrued on January 16, 2005. While the commencement of this action on June 2, 2010 relates back to the filing of the Federal action on January 16, 2008, as the First and Ninth Causes of action were untimely then, they are untimely now (CPLR 205[a]). Accordingly, the First and Ninth Causes of Action are dismissed based on the statute of limitations.

The Spa Defendants also move to dismiss the Sixth Cause of Action based on the statute of limitations. The Sixth Cause of Action asserts a violation of Plaintiff's common law right of privacy. The CPLR does not contain a statute of limitations for bringing such an action because New York does not recognize a common law right of privacy (Messenger ex rel. Messenger v Grunner & Jahr Printing and Pub., 94 NY2d 436, 441 [2000]). Accordingly, the Sixth Cause of Action is dismissed for failing to state a claim.

The Spa Defendants, which the Court is treating as Spa Capital LLC for the balance of this motion ( see note 3, supra), moves to dismiss for a lack of jurisdiction. Spa Capital LLC has submitted evidence that is not incorporated in New York, is not registered to do business in New York, neither owns nor leases property in New York, does not transact any business in New York, has no employees in New York and does not advertise in New York.

On a motion to dismiss for lack of personal jurisdiction, the Court must first determine whether is has jurisdiction under the laws of this State, and if so, whether the exercise of such jurisdiction would comport with constitutional due process (Stutts v De Dietrich Group, 465 FSupp 2d 156, 160 [EDNY 2006]; La Marca v Pak-Mor Mfg. Co., 95 NY2d 210 [2000]). A foreign corporation, i.e., one that is neither incorporated in New York or licensed to do business in New York, is amenable to suit in this State if it is present in the State (CPLR 301), or subject to long-arm jurisdiction pursuant to CPLR 302. Conceding that long-arm jurisdiction is not present, Plaintiff asserts that Spa Capital LLC is present in this State based on the presence of apparently related corporations in this State. To be present in this State so as to be amenable to suit here, a foreign corporation must have engaged in such a continuous and systematic course of "doing business" here as to warrant a finding of its "presence" in this jurisdiction. The test for doing business requires, at a minimum, the leasing of an office, with employees and the solicitation of business in this State (Frummer v Hilton Hotels Inter., Inc., 19 NY2d 533, 536-37 [1967]). While not disputing that Spa Capital LLC is not itself present under this test, Plaintiff [*3]asserts that it is present by virtue of the presence in New York of other related corporations. The presence of a subsidiary or related entity alone does not establish the parent's presence in the State. A Defendant which is not itself present in this State may be held to be present by virtue of another entity's presence where the other entity is the Defendant's agent or is, in reality, a mere department of the Defendant. To be an agent, the Plaintiff must demonstrate that the related entity does all the business the foreign business could do were it in New York and on its behalf (id.). In order to establish that a subsidiary or related entity is a "mere department" of the Defendant, the Plaintiff must demonstrate that the Defendant's control over the other entity is pervasive enough that the corporate separation is more formal than real. The factors to be considered being common ownership, financial dependency and control by the Defendant over the decision making of the other entity (Volkwagenwerk Aktiengesellshaft v Beech Aircraft Corp., 751 F2d 117, 120-22 [2d Cir 1984]).

Here, Plaintiff has submitted evidence that Spa Capital LLC, Premier Salon Canada, Inc., The Premier Collection and Premier Salons International, while Canadian corporations, are all headquartered in the same office in Markham, Ontario and that the other three entities operate spas in New York. Having failed to submit any proof as to the actual ownership of these entities, however, their financial relationship or dependency or Spa Capital LLC's control over them, such evidence is insufficient to satisfy Plaintiff's burden of proof that Spa Capital LLC was present in New York (Ying Jun Chen v Shi, 19 AD3d 407[2d Dept 2005]). Accordingly, the Complaint is dismissed against Spa Capital LLC for lack of jurisdiction.

This constitutes the decision and order of the Court.

Dated:White Plains, New York

December 3, 2010

_____________________________________

HON. GERALD E. LOEHR

Acting J.S.C. Footnotes

Footnote 1: It is also alleged that Krzyzak was arrested on April 26, 2005 and charged with two counts of sexual assault based on his assault of Plaintiff and another patron of Stonewater on January 16, 2005. The outcome of the criminal charges is not set forth.

Footnote 2: Defendant Krzyzak was also a New York resident.

Footnote 3: As Stonewater Spa was named as John Doe d/b/a Stonewater Spa, for the purpose of this motion, pursuant to CPLR 1024, the Court will treat such Defendant as Spa Capital LLC.

Footnote 4: The First and Ninth Causes of Action claim that the Spa Defendants assaulted Plaintiff and intentionally caused Plaintiff emotional distress by virtue of Krzyzak's assault on Plaintiff. As it is not alleged that any of the Spa Defendants participated in or intended the assault, nor intended to harm Plaintiff in any way, nor that Krzyzak was acting within the scope of his employment when he allegedly assaulted Plaintiff, these Causes of Action clearly fail to state a claim against the Spa Defendants. As the Spa Defendants have not moved to dismiss on this basis, the Court will not decide this issue.