Romano v T.N. Ward Co.

Annotate this Case

Download PDF

Romano v T.N. Ward Co. 2013 NY Slip Op 32809(U) October 17, 2013 Sup Ct, Suffolk County Docket Number: 11-34283 Judge: Joseph Farneti Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] COPl: INDEX No. SI !OR I FORM ORDER -~-34283 ! SUPREME COURT- STATE OF NEW Y04 I.AS. PART 37 - SUFFOLK COUNTY I PRESENT: Hon. JOSEPH F ARNETI Acting Justice Supreme Court MOTION DA~E 4-30-13 8-1-13 ADJ. DATE ' Mot. Seq. # 001- MG # 00~ - MG i ------------------------------------------------------------··---)( JOHN ROMANO and PRISCILLA ROMANO, Plaintiffs, DELL, LITTL :, TROY ATO & VECERE, LLP Attorney for Pl intiffs Five Orville D ive, Suite 100 Bohemia, New York 11716 WESTERMA SHEEHY KEENAN SAMAAN & AYDELOT ', LLP Attorney for D fondant T.N. Ward The Omni Bui ing, Suite 702 333 Earle Ovi gton Boulevard Uniondale, Ne York 11553 - against - T.N. WARD COMPANY and KISBY SHORE CORP., Defendant~:. SMITH MAZ RE DIRECTOR WILKINS YOUNG & Y GERMAN, P.C. Attorney for D ·fondant Kisby Shore Corp. 111 John Stree , 20th Floor New York, Ne York 10038 ------------------------------------------------------------·----)( Upon the following papers numbered I to -12._ read on this motion for summa: ·ud ment and motion to consolidate; Notice of Motion/ Order to Show Cause and supporting pap1~rs 1 - 13 14 - 21 ; Notice of ross Motion and supporting papers _ ; Answering Affidavits and supporting papers 22- 23 .; Replying Affidavits and sup orting papers 24 - 25 ; Other _ ; ( aud afte1 hea1 ing ecmn~el in ~npport and oppo~ed to the mertion) it is, ORDERED that these motions are hereby consolidated for purposet of this determination; and it is further ! ' ' fo~ i ORDERED that the motion by the defendant Kisby Shore Corp. an Order, pursuant to CPLR 3212 and 3211 (a) (8), granting summary judgment dismissing the complaipt and all cross-claims against it for lack of personal jurisdiction is granted; and it is further ! i ! I [* 2] Romanov. T.N. Ward Co. Index No. 11-34283 Page No. 2 ORDERED that the unopposed motion (incorrectly designated as a pursuant to CPLR 602 (a), consolidating this action with an action entitled against Harrah's Hotel & Casino and Harrah's Resort Atlantic City, defen against TN. Ward Company, third-party defendant (Suffolk County Index and it is further ross-motion) for an Order, ohn Romano, plaintiff, ants/third-party plaintiffs o. 11-12239), is granted; ORDERED that the Clerk of the Court shall consolidate the file for,this action with the file for the action assigned Index Number 11-12239; and it is further 1 l i ORDERED that the consolidated action shall be entitled John Rom plaintiffs, against Harrah's Hotel & Casino and Harrah's Resort Atlantic Company, defendants, Harrah 's Hotel & Casino and Harrah's Resort Atla party plaintiffs against TN. Ward Company, third-party defendant, under no and Priscilla Romano, .ity, and TN. Ward tic City, defendantslthirddex Number 11-12239. This is an action to recover damages for irduries allegedly sustained by the plaintiff John Romano as a result of a slip and fall accident that occurred on April 13, 20 0, at the Harrah's Resort Hotel & Casino located at 777 Harrah's Boulevard, Atlantic City, New Jers y. In their complaint, the plaintiffs allege that the defendants were contractors hired "to perform inst llations, construction work, demolition and/or renovation, labor and/or services" at the subject premise , and that the defendants operated, managed, maintained, and controlled said premises. 1 I The defendant Kisby Shore Corp. ("Kisby''), now moves to dismiss the complaint against it on the ground that the Court lacks personal jurisdiction over it pursuant to CP R 301 and 302 because Kisby does not have "minimum contacts" with the State of New York. In upport of its motion, Kisby submits, among other things, the complaint, its verified answer, and the af davit of its owner. In his affidavit, James Lees, Jr. swears that he is the owner ofKisby, that he cond cted a search of the records maintained by the corporation, and that the corporation has not "transacted, solicited, or performed work or business in the State of New York, and has derived no income from the 'tate of New York." He further swears that Kisby does not have a business address or office locate in New York, that it does not own, use or possess any real property in New York, and that the work perfi rmed in relation to this matter was not performed in New York. It is undisputed that Kisby is inco orated in the State of New Jersey. A foreign corporation is amenable to suit :.n New York courts unde · CPLR 301 if it has engaged in such a continuous and systematic course of doing business here that a fi ding of its presence in this jurisdiction is warranted (see Landoil Resources Corp. v Alexander & Ale ander Servs., 77 NY2d 28, 563 NYS2d 739 [1990); Laufer v Ostrow, 55 NY2d 305, 449 NYS2d 456 1982]; Farahmand v Dalhousie Univ., 96 AD3d 618, 947 NYS2d 459 [1st Dept 2012]). Here, isby's submission establishes prima facie that it is a New Jersey corporation, that it has not p rformed work or done business in New York, and that it does not have any offices, employees, ba 1k. accounts or property in New York. [* 3] l Romanov. T.N. Ward Co. lndex No. 11-34283 Page No. 3 I l I I i However, a Court may also obtain personal jurisdiction over a foreiJn corporation under New York's long-arm statute, CPLR 302 (a). Said statute provides: j § 302. Personal jurisdiction by acts of non-domiciliaries j i l (a) Acts which are the basis of jurisdiction. As to a caus of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, r his executor or administrator, who in person or through an a ent: 1. transacts any business within the state or contracts anthere to supply goods or services in the state; or I 2. commits a tortious act within the state, except as to a use of action for defamation of character arising from the act; o 3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of actio for defamation of character arising from the act, ifhe (i) regularly does or solicits business, or engages in any her persistent course of conduct, or derives substantial reven e from goods used or consumed or sen'ices rendered, in the stat , or (ii) expects or should reasonably expect the act to have I consequences in the state and derives substantial revenue from interstate or international commerce; or 4. owns, uses or possesses any real property situated wi,n the , state. 'l Pursuant to CPLR 302 (a) ( 1), a nondomiciliary is subject to the juri diction of a New York court if it has purposefully transacted business within the state, and there is a "su tantial relationship" between this activity and the plaintiff's cause of action (see Kreutter v Mc adden Oil Corp., 71 NY2d 460, 527 NYS2d 195 [1988); Paolucci v Kamas, 84 AD3d 766, 922 NYS2 792 [2d Dept 2011); Arroyo v Mountain School, 68 AD3d 603, 892 NYS2d 74 [1st Dept 2009); Bogal v Finger, 59 AD3d 653, 874 NYS2d 217 [2d Dept 2009)). Here, Kisby has establishedprimafi cie that it does not transact any business in New York, purposeful or otherwise, and that the plaintiff's i jury and this action cannot be said to have arisen directly out of the transaction of any business in this sate. In addition, it is undisputed that the instant action does not involve any allegation that Kisby ommitted a tortious act within the state making it subject to jurisdiction pursuant to CPLR 302 (a) ( ). [* 4] Romanov. T.N. Ward Co. Index No. 11-34283 Page No. 4 With respect to CPLR 302 (a) (3) (i), Kisby's owner avers that his c rporation does not conduct or solicit business in New York, nor does it "derive any revenue from good or services rendered within the State of New York." The second subsection, CPLR 302 (a) (3) (ii) inv Ives five elements, that is, whether: ( 1) the defendant committed a tortious act outside the State; (2) th cause of action arises from that act; (3) the act caused injury to a person or property within the State; ( ) 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 (LaMarca v ak-Mor Mfg. Co., 95 NY2d 210, 713 NYS2d 304 [2000]). The establishment of long-arm jurisdiction · n connection with a New York injury under CPLR 302 (a) (3) (ii) does not implicate constitutional d e process concerns inasmuch as said provision was not designed to go to the full limits of permissible ju isdiction (Ingraham v Carroll, 90 NY2d 592, 665 NYS2d 10 [1997]). I The instant motion only addresses the fomih and fifth elements of PLR 302 (a) (3) (ii). The fourth element is intended to ensure some link between a defendant and Ne York State to make it reasonable to require a defendant to come to the State to answer for tortiou conduct committed elsewhere (Ingraham v Carroll, supra). The fifth element, in tum, is desi ned to preclude the exercise of jurisdiction over nondomiciliaries who might cause direct, foreseeable i ·ury within the State but who have local business operations (LaMarca v Pak-Afor Mfg. Co., supra). He e, Kisby's submission establishes prima facie that it does not derive substantial revenue from inte state or international commerce, and that is unreasonable to require it to come to New York to li igate this matter. ! Finally, Kisby has established prima facie that it does not own, use r possesses any real property situated within the state (CPLR 302 [a] [4]). Therefore, the Court finds tha Kisby has established that CPLR 301 and CPLR 302 (a) do not confer jurisdiction herein. The propo ent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a tter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Pr spect Hospital, 68 NY2d 2d 851, 487 NYS2d 316 320, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 [1985)). The burden then shifts to the party opposing the motion which mu t produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact oth v Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; Rebecchi v Whitmore, 172 AD2d 60 , 568 NYS2d 423 [2d Dept 1991 ]; O'Neill v Fishkill, 134 AD2d 487, 521NYS2d272 [2d Dept 1987]) In opposition, the defendant T.N. Ward Company ("Ward") asserts hat it contracted with Kisby to perform certain work at the Harrah's Resort Hotel & Casino, and that, p rsuant to that contract, Kisby is obligated to defend and indemnify it for all claims resulting directly or in irectly from Kisby's work. Ward contends that "it is in the best interests of all parties" that all parties r main in this action. However, Ward has made no showing of any activities by Kisby which wo ld demonstrate that Kisby is doing business in New York or is subject to long-am1 jurisdiction herein. addition, Ward fails to cite to any authority which permits the Court to exercise jurisdiction over a part based on the interests of other parties to the action, and it has not established that it would be prejud ced in its ability to pursue any claim it might have against Kisby in another jurisdiction. [* 5] Romanov. T.N. Ward Co. Index No. 1 1-34283 Page No. 5 The Court notes that the plaintiff has executed a stipulation of disc ntinuance in favor of Kisby, and they have not opposed Kisby's motion for summary judgment. As the arty seeking to assert personal jurisdiction, Ward bears the burden of proof on this issue (see Let ieri v Cushing, 80 AD3d 574, 914 NYS2d 312 [2d Dept 2011]; Castillo v Star Leasing, 69 AD3d 5 1, 893 AD3d 123 [2d Dept 201 OJ; Ying Jun Chen v Lei Shi, 19 AD3d 407, 796 AD3d 126 [2d Dept 2 05]). That burden does not entail making a prima facie showing of personal jurisdiction, but Ward mu t demonstrate that facts "may exist" to exercise personal jurisdiction over Kisby (see Lettieri v Cushing, upra; Castillo v Star Leasing, supra; Ying Jun Chen v Lei Shi, supra). Here, Ward does not al ege any facts regarding the issue. Instead, Ward contends that the motion must be denied because furt er discovery is necessary to determine whether the New York Courts have personal jurisdiction over Ki by. "[S]ummary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" (Williams v D & J School B s, 69 AD3d 617, 893 NYS2d 133 [2d Dept 2010]; Panasuk v Viola Pa.rk Realty, 41AD3d804, 39 NYS2d 520 [2d Dept 2007); Gasis v City of New York, 35 AD3d 533, 828 NYS2d 407 [2d Dept. 2006]). The mere hope or speculation that evidence sufficient to defeat a motion for summary judgm nt may be uncovered as a result of discovery is an insufficient basis for denying the motion as to wha that discovery would uncover (see generally, Lauriello v Gallotta, 59 .AD3d 497, 873 NYS2d 69 [2d Dept 2009); Kimyagarov v Nixon Taxi Corp. 45 AD3d 736, 846 NYS2d 309 [2d Dept 2007]). Here, by analogy to a motion to dismiss pursuant to CPLR 3211 (a) 8) only, Ward need not make a prima facie showing of jurisdiction, but instead must only set forth 'a sufficient start, and [show its] position not to be frivolous" (Shore Pharm. Providers, Inc. v Oakwoo Care Ctr., Inc., 65 AD3d 623, 624, 885 NYS2d 88 [2d Dept 2009] citing Peterson v Spartan Indus., 33 NY2d 463, 467, 354 NYS2d 905 [ 1974 ]). Ward need only demonstrate that facts "may exist" to defeat the motion, it need not be demonstrated that they do exist (see Peterson v Spartan Indus., id.; ettieri v Cushing, supra; Castillo v Star Leasing, 69 AD3d 551 [2d Dept 2010); Ying Jun Chen v L i Shi, supra). Here, Ward has failed to establish that there is an evidentiary basis t suggest that discovery might lead to relevant evidence to defeat Kisby's motion for summary judg ent, failed to allege that facts "may exist" to exercise personal jurisdiction over Kisby, and failed to ake a "sufficient start" to warrant further discovery on the issue of personal jurisdiction (see Doe v Cormack, 100 AD3d 684, 953 NYS2d 666 [2d Dept 2012); Lettieri v Cushing, supra; Insurance Co. of N. Am. v EMCOR Group, Inc., 9 AD3d 319, 781NYS2d4 [1st Dept 2004]; Federal Ins. Co. v Chevalier Mach., 258 AD2d 904, 685 NYS2d 377 [4th Dept 1999]; Mandel v Busch Entertainm nt Corp., 215 AD2d 455, 626 NYS2d 270 [1995); National Union Fire Ins. Co. of Pittsburgh v Ide l Mut. Ins. Co., 122 AD2d 630, 505 NYS2d 416 [1986)). Accordingly, Kisby's motion to dismiss the omplaint and all crossI claims against it is granted. I Ward now moves to consolidate this action with an action entitled J, hn Romano, plaintiff, against Harrah's Hotel & Casino and Harrah's Resort Atlantic City, defen ants/third-party plaintiffs against TN Ward Company, third-party defendant. The defendants/third- arty plaintiffs Harrah's Hotel [* 6] Romanov . T.N. Ward Co. Index No. 11-34283 Page No. 6 j l l & Casino and Harra~'s ~esort Atlantic City ("~a1~ah's") joins in Ward's rrtotion to consolidate these actions, and the mot10n is unopposed by the plamt1ffs. I Herc, consolidation is appropriate, as the above-entitled actions inv lve common questions of fact and law, and there is no showing of prejudice to a substantial right (se Nigro v Pickett, 39 AD3d 720, 833 NYS2d 655 [2d Dept 2007]; Dukhvalov v Pshierer, 15 AD3d 33 , 789 NYS2d 521 [2d Dept 2005]; McDutchess Builders v Dutchess Knolls, lnc., 244 AD2d 534, 665 NYS2d 579 [2d Dept 1997]). Therefore, it is clear that consolidation of these two actions will serve the i terests of the court, and the parties (see Viafax Corp. v Citicorp. Leasing, Inc., 54 AD3d 846, 864 NY 2d 479 [2d Dept 2008) ; Best Price Jewelers. Com, Inc. v Internet Data Stor. & Sys., Inc. , 51 AD3d 839 857 NYS2d 731 [2d Dept 2008); Nigro v Pickett, supra). Accordingly, the above-entitled actions are consolidated under Index No. 11 -12239, and the consolidated action shall be entitled, John Romano nd Priscilla Romano, plaintiffs, against Harrah 's Hotel & Casino and Harrah's Resort Atlantic ity, and TN. Ward Company, defendants, Harrah's Hotel & Casino ond Harrah's Resort Atla tic City, defendantslthirdpar~y plaintiffs against TN. Ward Company, third-party defendant. J ! All matters of trial practice are reserved to the Justice presiding at tre trial of this consolidated action. Counsel for Ward is directed to promptly serve a copy of this Orde upon the County Clerk, who shall consolidate the files of these actions under Index No. 11-12239, and u on the Calendar Clerk of this Court. j ' The Court directs that the causes of action as to which summary judJment was granted are hereby severed and that the remaining causes of action shall continue (see 9PLR 3212 [e] [ 1]). I ~ i ! Dated: October 17, 2013 o . oseph Fameti ting Justice Suprem FINAL DISPOSITION ___ X

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.