United Nimba Citizens Council v Dorliae
Annotate this CaseDecided on December 1, 2011
Supreme Court, Queens County
United Nimba Citizens Council (UNICCO)
against
Martin Dorliae, HECTOR P. SAYE, NIXON ZOR, MARY W. GOANUE, ESI BORMENTAR, and JOHN DOE AND JANE DOE 1 THROUGH 5.
23587/2010
For the Plaintiff:
Gabriel Amene, Esq.
146-10 Hillside Ave.
Jamaica, New York 11435
For the Defendants:
Law Office of Ambrose Wotorson
by Ambrose Wotorson, Esq.
26 Court St.
Brooklyn, New York 11242
Charles J. Markey, J.
Plaintiff's motion for injunctive relief and for the entry of a default judgment is denied. The order to show cause directed that plaintiff personally serve the defendants on or before May 27, 2011. Plaintiff has failed to submit any affidavits of service and, therefore, has failed to establish that service of the order to show cause was effectuated on the defendants in the manner directed by the Court.
Defendants served the within motion to dismiss the complaint, along with a request for judicial intervention, and an answer on April 25, 2011, by priority mail. Plaintiff's rejection and return of the answer on May 3, 2011, on the grounds that it was untimely was improper. Contrary to plaintiff's claim, defendants' time in which to answer did not expire on December 27, 2010.
The documentary evidence submitted herein establishes that plaintiff United Nimba Citizens Council ("UNICCO") is a not-for-profit corporation, incorporated in Minnesota. Defendants are all residents of New Jersey or Pennsylvania. Plaintiff has submitted affidavits of service with respect to defendants Martin Dorliae, Hector Saye, and Mary W. Goanue. These defendants were all purportedly served in New Jersey, pursuant to CPLR 308(4), although there is no affidavit of mailing as to Mr. Saye. No affidavits of service have been submitted with respect to defendants Nixon Zor, Esi Bormentar, and the John Does and Jane Does 1 through 5.
A defendant who is served without the state has 30 days in which to appear by way of an answer or a motion (CPLR 320[a]). When service is made pursuant to CPLR 308(4), service is not complete until 10 days after proof of service is filed. Since this method always invokes a 30-day responding period under 320(a), the time in which a defendant has to appear is 40 days, measured from time proof of service is filed (see, Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3012:15, C3012:18.) [*2]
An examination of the County Clerk's file reveals that no affidavits of service of the summons and complaint were filed by the plaintiff. Therefore, defendants' time to move to dismiss, pursuant to CPLR 3211, or to serve an answer, has not expired. The Court, therefore, will consider and determine defendants' motion to dismiss, rather than direct the re-service of the answer.
Defendants move to dismiss the complaint on the grounds of lack of personal jurisdiction, and documentary evidence, pursuant to CPLR 3211(a)(1) and (8). Defendants are all New Jersey or Pennsylvania residents, and the act complained of - - the election of national officers - - took place in New Jersey on May 30, 2010. Plaintiff alleges in its complaint that the results of the May 30, 2010 election were later annulled, and that defendants are improperly holding themselves out as the elected officers of UNICCO. It is undisputed that the defendants were installed as national officers of UNICCO at a conference held in Philadelphia, Pennsylvania on September 3-5, 2010.
Defendants assert that none of the basis for long arm jurisdiction exists here. Defendants, in anticipation of plaintiff's claim in this regard, assert that they never maintained any bank accounts in New York relative to UNICCO, all such bank accounts maintained by prior officers were closed in 2009, and plaintiff has failed to articulate any nexus between the bank account and its cause of action for declaratory and injunctive relief. Defendant Henry Saye states, in his affidavit, that UNICCO's prior representatives in New York maintain three accounts with the Bank of America in New York and that these accounts were closed on May 9, 2009, as a result of the existence of negative balances.
Plaintiff, in opposition, asserts that it served the defendants with the summons and complaint, and that plaintiff "owns" a bank account in New York, which "stood to be damaged or harmed" by the defendants. Plaintiff also maintains that it has a corporate office in New York, "where principal officers also reside and transact the affairs and businesses of the Plaintiff." Plaintiff asserts, moreover, that the defendants are holding themselves out as the corporation's officers, raising funds on behalf of the corporation and are not depositing such funds in UNICCO's New York bank account.
Defendants, in reply, reiterate their arguments and submit a letter dated June 6, 2011 from the Bank of America addressed to UNICCO at a Jamaica, Queens County, New York address, stating that the account ending in number 7427 has an outstanding debt of $581.24, and requested payment of said amount. This account number is the same account referred to by plaintiff in opposition to the defendants' motion.
As the party seeking to assert personal jurisdiction, the plaintiff bears the ultimate burden of proof on this issue (see, Goralski v Nadzan, ___ AD3d _____, 2011 WL [*3]5433732, 2011 NY Slip Op 08122 [2nd Dept. 2011]; College v Brady, 84 AD3d 1322, 1322 [2nd Dept. 2011]; Alden Personnel, Inc. v David, 38 AD3d 697, 698 [2nd Dept. 2007]; Brandt v Toraby, 273 AD2d 429, 430 [2nd Dept. 2000]). Where a defendant moves to dismiss the complaint, pursuant to CPLR 3211 (a)(8), on the ground of lack of personal jurisdiction, a plaintiff "need only make a prima facie showing" that such jurisdiction exists (Weitz v Weitz, 85 AD3d 1153 {2nd Dept. 2011]; Cornely v Dynamic HVAC Supply, LLC, 44 AD3d 986, 986 [2nd Dept. 2007]; see, Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793 [2nd Dept. 2008]).
Here, plaintiff has failed to make such a showing. Contrary to plaintiff's assertions, the affidavits of service submitted herein do not establish that all of the defendants were properly served with process. Furthermore, plaintiff has not established that any basis exists for long arm jurisdiction over any of the defendants.
New York's long-arm statute, set forth in CPLR 302(a), provides, in pertinent part:
. . . a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent:
1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or
2. commits a tortious act within the state, except as to a cause for defamation of character arising from the act; or
3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or
4. owns, uses or possesses any real property situated within the state.
Plaintiff does not allege that the defendants engaged in any purposeful activity in New York giving rise to the cause of action for declaratory and injunctive relief. Rather, it is alleged that the defendants are improperly holding themselves out as the national officers of UNICCO, are engaging in fund-raising on behalf of UNICCO, and have not deposited UNICCO funds in a bank account maintained in New York. [*4]
It is beyond dispute that the acts complained of, the election and installation of officers, took place outside of New York. Plaintiff, moreover, has failed to provide any information with respect to the account maintained at Bank of America on behalf of UNICCO. The plaintiff does not dispute defendants' assertion that said bank accounts were closed on May 9, 2009, more than a year prior to the disputed election. The fact that UNICCO had, at one time, maintained a bank account in New York, does not form a basis for this Court to exercise long arm jurisdiction over the defendants. Finally, the fact that plaintiff, a national organization, has a New York chapter does not form a basis for the Court to exercise long arm jurisdiction over the defendants (see, Reger v National Ass'n of Bedding Mfrs. Group Ins. Trust Fund, 83 Misc 2d 527, 534-537 [Sup Ct Westchester County 1957]).
Accordingly, the plaintiff's motion for injunctive relief and for a default judgment is denied, and the defendants' motion to dismiss the complaint is granted.
The foregoing constitutes the decision, opinion, and order of the Court.
______________________________________
J.S.C.
Dated: Long Island City, New York
December 1, 2011
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