Christina Chirumbolo Consulting Corp. v Agathis

[*1] Christina Chirumbolo Consulting Corp. v Agathis 2018 NY Slip Op 50462(U) Decided on March 9, 2018 Supreme Court, Suffolk County Rebolini, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 9, 2018
Supreme Court, Suffolk County

Christina Chirumbolo Consulting Corp., Plaintiff,

against

Michael Agathis, Roula Agathis and Eva Agathis, Defendants.



617010/2017E



Attorney for Plaintiff:

Jakubowski, Robertson, Maffei,

Goldsmith & Tartaglia, LLP

969 Jericho Turnpike

St. James, NY 11780

Attorney for Defendants:

Raimondi Law, P.C.

552 Broadway

Massapequa, NY 11758
William B. Rebolini, J.

Upon the E-file document list numbered 5 to 25 read on this application by Defendants for an Order dismissing the complaint, it is

ORDERED that the motion by Defendants for an Order pursuant to CPLR 3211 (a)(8) dismissing the Verified Complaint for lack of jurisdiction is granted as to Defendants Michael Agathis and Roula Agathis and denied as to Defendant Eva Agathis.

In this action to recover damages for, inter alia, breach of contract, quantum meruit, and unjust enrichment, defendants Michael Agathis ("M. Agathis"), Roula Agathis ("R. Agathis"), and Eva Agathis ("E. Agathis")(collectively referred to herein as "Defendants"), move to dismiss the complaint as asserted against them pursuant to CPLR 3211(a)(8) on the ground that the court lacks personal jurisdiction over them. Plaintiff opposes the motion.

Factual and Procedural Background

In its Verified Complaint, Plaintiff, Christina Chirumbolo Consulting Corp. ("Plaintiff") alleges, among other things, that Plaintiff is a Pennsylvania corporation with a principal place of business at 123 Village Way, Chalfont, Pennsylvania. According to the records submitted in opposition to the Defendants' motion, Plaintiff is a foreign corporation authorized to do business in New York. It is further alleged in the Plaintiff's complaint that Defendants have a principal residence located at 34 Sherwood Farm Road, Far Hills, New Jersey 07931 and transacted business in the State of New York.

The complaint avers that in or around June 23, 2017, Plaintiff and Defendants entered into an agreement pursuant to which Plaintiff would provide entertainment production services to Defendant E. Agathis and Defendants agreed to pay $108,200 for those services. The production services were to be performed in California. No party has provided a copy of the agreement in their submissions to this Court. After payments were made by Defendants and deposited into Plaintiff's account, Defendants charged them back and the funds thereby were withdrawn from Plaintiff's account.

By way of affidavit in support of the motion to dismiss, Defendant E. Agathis asserts that the only contact Defendants had within the State of New York were via telephone and/or email with one Stephanie Conte ("Conte"), the Chief Operating Officer of Plaintiff, who contacted Defendants to arrange for the services being provided in California. In its opposition papers, Plaintiff avers that by electronic mail dated July 27, 2016, Defendant E. Agathis contacted Plaintiff indicating she was located in New York and that on or about July 30, 2016 Defendants E. Agathis and R. Agathis met with Plaintiff's owner Christina Chirumbolo ("Chirumbolo") and Conte at 3 Dickey Court, Commack, New York for a consultation, at which time Defendants tendered a check to Plaintiff for $250.00. An invoice dated August 16, 2016 was sent from Plaintiff to Defendant R. Agathis' at her New Jersey address for $8,850.00 and an invoice for $17,000.00 was sent by Plaintiff via electronic transmission to Defendant E. Agathis on August 15, 2016. Plaintiff alleges that in order to pay invoices through Plaintiff's website, clients agree to be governed by the laws of the State of New York, County of Suffolk. The Court notes that there is a pending action in California brought by the Defendants against Plaintiff, as well as Chirumbolo and Conte individually.

Discussion

Although a plaintiff bears the ultimate burden of proof on the issue of personal jurisdiction, in opposing a motion to dismiss pursuant to CPLR 3211 (a)(8), a plaintiff need only make a prima facie showing that the defendant was subject to the personal jurisdiction of the Supreme Court (Carrs v Avco Corp., 124 AD3d 710, 2 N.Y.S.3d 533 [2d Dept 2015]). "If the defendant moves to dismiss due to the absence of a basis of personal jurisdiction, the plaintiff must come forward with sufficient evidence, through affidavits and relevant documents, to prove the existence of jurisdiction" (see Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 302:5; see also Fischbarg v Doucet, 9 NY3d 375, 381 n.5, 849 NYS2d 501 [2007]).

Here, no agreement has been offered by Plaintiff establishing that Defendants consented to jurisdiction and venue in the State of New York, County of Suffolk. Moreover, the provision contained within Plaintiff's website that parties who pay invoices via the website agree all disputes are governed by New York law is insufficient to confer jurisdiction (see [*2]America/International 1994 Venture v. Mau, 146 AD3d 40, 59, 42 N.Y.S.3d 188 [2d Dept. 2016] and cases cited therein).

Thus, Plaintiff must make a prima facie showing of jurisdiction against the defendants, who are residents of New Jersey, pursuant to CPLR 302(a)(1), New York's long-arm statute. "Under New York's long-arm jurisdiction statute, a court may exercise jurisdiction over a nondomiciliary who, in person or through an agent, 'transacts any business within the state or contracts anywhere to supply goods or services in the state'" (Grimaldi v Guinn, 72 AD3d 37, 43, 895 NYS2d 156 [2dDept. 2010](quoting CPLR 302[a][1]). CPLR 302(a) is a "single act statute [and] proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted'" (Kimco Exch. Place Corp. v. Thomas Benz, Inc., 34 AD3d 433, 434, 824 NYS2d 353 [2d Dept 2006] quoting Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71, 818 NYS2d 164 [2006] cert denied 549 US 1095 [2006]). "Essential to the maintenance of a suit against a nondomiciliary under CPLR 302 (subd [a], par 1) is the existence of some articulable nexus between the business transacted and the cause of action sued upon" (McGowan v Smith, 52 NY2d 268, 272, 437 NYS2d 643 [1981]; see also Chen v. Guo Liang Lu, 144 AD3d 735, 41 NYS3d 517 [2d Dept. 2016]); accord Licci v Lebanese Can. Bank, SAL, 20 NY3d 327, 960 NYS2d 695 [2012]). Thus, in determining whether jurisdiction is available under CPLR 302 (a)(1), the court must determine whether the defendant transacts any business in New York and, if so, whether the plaintiff's cause of action arises out of such business transaction (Johnson v Ward, 4 NY3d 516, 519, 797 NYS2d 33 [2005]). For jurisdiction to exist, both prongs of the statute must be satisfied (Id.). The "overriding criterion" for establishing a transaction of business is "some act which the defendant purposefully avails itself of the privilege of conducting activities" in New York (Ehrenfeld v Bin Mahfouz, 9 NY3d 501, 508, 851 NYS2d 381 [2007]).

The Court of Appeals has held that "[s]o long as a party avails itself of the benefits of the forum, has sufficient minimum contacts with it, and should reasonably expect to defend its actions there, due process is not offended if that party is subjected to jurisdiction even if not 'present' in that State" (Deutsche Bank Sec., Inc. v Montana Bd. of Invs., supra at 71, quoting Kreutter v McFadden Oil Corp, 71 NY2d 460, 466, 527 NYS2d 195 [1988]).

A court examines the totality of the circumstances in determining whether a nondomiciliary has engaged in purposeful contact within the State of New York to confer jurisdiction (see Farkas v. Farkas, 36 AD3d 852, 853, 830 N.Y.S.2d 220 [2d Dept. 2007]).

" 'Although it is impossible to precisely fix those acts that constitute a transaction of business, [the Court of Appeals'] precedents establish that it is the quality of the defendants' New York contacts that is the primary consideration' (Fischbarg v Doucet, 9 NY3d 375, 380 [2007]). The purposeful creation of a continuing relationship has been a contributing factor in finding sufficient contacts to justify the exercise of long-arm jurisdiction (id. at 381; George Reiner & Co. v Schwatrz, 41 NY2d 648, 653 [1977]). 'Whether a non-domiciliary has engaged in sufficient purposeful activity to confer jurisdiction in New York requires an examination of the totality of the circumstances' (Farkas v Farkas, 36 AD3d 852, 853 2d Dept 2007])."

(Grimaldi v Guinn, 72 AD3d at 44-45; see also Mejia-Haffner v Killington, Ltd., 119 AD3d 912, 990 NYS2d 561 [2d Dept 2014]).

At this stage of the litigation, the totality of the circumstances demonstrates that Defendant E. Agathis had sufficient contacts in New York, including her attendance at a meeting on July 30, 2016 with Plaintiff's owner and its Chief Operating Officer in Commack, New York, her emails, text messages, and phone calls with Conte while Conte was in New York, and her attendance at twelve (12) consultations/meetings with Chirumbolo and/or Conte that took place in New York City, as asserted by Conte in her affidavit. Defendant E. Agathis further sent an email to Plaintiff indicating she was located in New York. Accordingly, Defendant E. Agathis engaged in the "purposeful creation of a continuing relationship" with Plaintiff (see Grimaldi v. Guinn, 72 AD3d 37, 895 N.Y.S.2d 156 [2d Dept. 2010]; see also Fischbarg v. Doucet, 9 NY3d 375, 849 N.Y.S.2d 501). There also is a substantial relationship between the transactions Plaintiff had with Defendant E. Agathis in New York and the claims asserted herein. As such, Plaintiff has made a prima facie showing of an articulable nexus between the business contacts had by Defendant E. Agathis and the claims asserted herein. Furthermore, dismissal is unwarranted at this stage because discovery might lead to evidence establishing personal jurisdiction in New York (see Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d 623, 624, 885 NYS2d 88 [2d Dept 2009]).

As to the remaining defendants, the only specific allegation in the complaint or opposing papers regarding Defendant R. Agathis was her attendance at a consultation with Chirumbolo and Conte in Commack, New York on or about July 30, 2016 to discuss production services for Defendant E. Agathis, which were to be performed in California. The contact Defendant R. Agathis had in New York regarding services to be performed for Defendant E. Agathis, not Defendant R. Agathis, do not indicate that Defendant R. Agathis purposefully availed herself of the benefits and privileges of conducting business in New York (see Kimco Exch. Place Corp. v. Thomas Benz, Inc., 34 AD3d 433, 434 [2d Dept 2006] ). Moreover, Conte's assertion that there were phone calls and texts to E. Agathis as well as the other Defendants in this matter while Conte was located in New York is insufficient (see Paterno v. Laser Spine Inst., 112 AD3d 34, 973 N.Y.S.2d 681 [2d Dept. 2013] aff'd 24 NY3d 370, 23 N.E.3d 988 [2014]). Indeed, plaintiff does not identify which of the Defendants, other than E. Agathis, had such communications with Conte. Based upon the totality of the circumstances, the contacts Defendant R. Agathis had in New York are insufficient to confer jurisdiction upon her. Similarly, there are no specific allegations regarding the contacts Defendant M. Agathis had in New York, if any, and thus, no prima facie showing has been made by Plaintiff that Defendant M. Agathis had any contacts within the State of New York to confer jurisdiction upon him.

Accordingly, the complaint is dismissed as against Defendants R. Agathis and M. Agathis.

The forgoing constitutes the Decision and Order of this Court.

Dated: March 9, 2018

HON. WILLIAM B. REBOLINI, J.S.C.