SHORT FORM ORDER OF NEW YORK SUPREME COURT - STATE. Present: HON. STEPHEN A. BUCARIA Justice TRIAL/IAS, PART 18 NASSAU COUNTY LYNN DALY, Plaintiff,

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1 SHORT FORM ORDER Present: LYNN DALY, SUPREME COURT - STATE OF NEW YORK HON. STEPHEN A. BUCARIA Justice TRIAL/IAS, PART 18 NASSAU COUNTY -against- FRED RAPHAEL, Plaintiff, Defendant. INDEX No. 3358/00 MOTION DATE: June 7,200O Motion Sequence # 001 & 002 The following papers read on this motion: Notice of Motion..... Affidavit in Opposition..... Reply Affirmation... Memorandum of Law..... XX XX X X This motion, by defendant, for an order (a) pursuant to CPLR $3212(a) granting defendant summary judgment against plaintiff dismissing the summons with notice because (i) this Court does not have b personam jurisdiction over defendant, and (ii) the summons with notice fails to state a cause of action upon which relief can be granted, and (b) granting such other and further relief as the Court deems just and proper; and a motion, by plaintiff, for summary judgment against the defendant on the promissory note signed by the defendant for the balance due on said note, on the basis that no triable issue of fact precludes summary judgment for the plaintiff and against the defendant on said note, are both determined as hereinafter set forth. FACTS The plaintiff contends that she loaned $100,000 to the defendant and signed a promissory note with defendant whereby the defendant was to repay this loan conditioned upon the sale of Duo Designs, Inc., of property owned by the said corporation located at 14 Stephen Halsey Path, Water Mill, New York. This defendant resides in the state of California since The promissory note in controversy herein was executed in the state of California on January 23, 1996, and the defendant was served in Florida on March 18,

2 Index no. 3358/00 DEFENDANT S CONTENTIONS The defendant contends that this action must be dismissed on the basis of lack of _ personam jurisdiction of this Court over the defendant. The defendant argues that this Court cannot exercise long-arm jurisdiction over him pursuant to CPLR $302 because he does not have sufficient contacts with the state of New York. Defendant claims he has lived in California since 1994, and that he was not domiciled in New York at any time in the past five years. The defendant further argues that this Court has no basis for jurisdiction over him because the note that is the subject of the original action was purportedly executed in California. PLAINTIFF S CONTENTIONS The plaintiff argues that the defendant does have sufficient contacts with New York for this Court to properly exercise personal jurisdiction over the defendant. Plaintiff contends the following reasons establish sufficient contacts by defendant with New York to satisfy the requirements as set forth in the CPLR $302: The defendant had lived in New York State for years. Plaintiff claims defendant owned a house in Water Mill, New York; that the $100,000 loan was given to the defendant so that he could purchase the house in Water Mill, New York, and that the note at issue was conditioned on the sale of that house in Water Mill, New York. The defendant is the owner and promoter of the Legends of Golf, which annually has a golf tournament in Long Island, New York. The plaintiffs final contention to establish the defendant s contacts with New York is that in March 2000 the defendant was in Southampton Hospital, New York and then residing with ex-wife Mary June in New York. DEFENDANTS REPLY The defendant s attorney claims the four purported bases given by the plaintiff in support of this Court having personal jurisdiction over the defendant, alone, and in the aggregate, fail to give this Court jurisdiction over the defendant. The defendant s attorney admits that the defendant did live in New York, however, the defendant has not lived in New York for the past five years. Thus, that item does not give this Court b personam jurisdiction over the defendant. The defendant s attorney also denies the claim that because the money was lent to purchase a house in New York that this Court has h personam jurisdiction over the defendant. Defendant s attorney argues that because the note is the basis of this action, not the sale or purchase of a house in New York, and the note was signed in California, therefore, the defendant did not transact any business in New York and this does not give this Court personal jurisdiction over the defendant. The defendant s attorney also claims that the fact that the defendant s golf tour travels through New York does not. subject the defendant to h personam jurisdiction. Finally, the defendant s attorney contends that had the defendant been served while visiting New York, 2

3 Index no. 3358/00 then this Court would have jurisdiction over him, however he was served in Florida. The mere visit to New York does not give New York sufficient contacts to exercise _ personam jurisdiction over defendant when the cause of action complained of involves a promissory note signed in California. DECISION Initially, this Court addresses the relief sought by the defendant with respect to the motion requesting summary judgment pursuant to CPLR 3212(a). The defendant seeks summary judgment dismissing the complaint because this Court does not have _ personam jurisdiction over the defendant. This motion is technically inaccurate, in that a dismissal for lack of _ personam jurisdiction would not be on the merits and, therefore, could not be awarded summary judgment. Thus, it is noted that the proper relief sought by defendant is a dismissal of the complaint pursuant to CPLR 302, for lack of _ personam jurisdiction of this Court over the defendant, and this Court will so determine the application pursuant to CPLR3211. The defendant seeks dismissal of this action on the grounds that this Court lacks personam jurisdiction over him. CPLR 302(a)( 1) provides as follows: _ As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nondomiciliary or his executor or administrator, 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... In order to invoke jurisdiction over a non-domiciliary pursuant to CPLR 302(a)(l), the plaintiffs cause of action must arise out of the transaction of any business within the state. (Krakower v Battles Universal, Inc., 152 AD2d 656,543 NYS2d d Dept., 1989). The subject matter of this action brought by the plaintiff is based on a promissory note for a loan of $100,000, to the defendant, executed in California, and conditioned upon the sale by Duo Designs, Inc. of property owned by that corporation in New York. The plaintiff contends that the promissory note was conditioned on the sale of a house owned by the defendant in Water Mill, New York. However, the executed promissory note makes no mention of the loan being repaid conditioned upon the sale of a house in Water Mill, New York owned by the defendant. As clearly written in the note, the loan given by the plaintiff to the defendant in the amount of $100,000 was to be repaid conditioned upon the sale by Duo Designs. Inc., ofproperty owned by said corporation located at 14 Stephen Halsey Path, Water Mill, New York. 3

4 Index no. 335WOO There is no evidence that the property in question was ever sold, and even more critical is the absence of any connection between the defendant and Duo Designs, Inc. showing sufficient articulable nexus between the business transacted in New York and the cause of action sued upon.(krakower, 152 AD2d at 527). The note, as written, creates the sale of the property by Duo Designs, Inc., to be a mere condition for repayment of the loan. The present factual circumstance of the sale of the corporate property presents an insufficient nexus between the defendant and the state of New York to satisfy the requirements of CPLR 302 for this Court to exercise b personam jurisdiction over the said defendant. As to the plaintiffs other contentions regarding the defendant and his contacts with the state of New York, including owning the Legends of Golf, which annually has a golf tournament in Long Island, New York; and being in Southampton Hospital, New York, and residing with ex-wife Mary Jane in New York are both insufficient for this Court to establish & personam jurisdiction over the defendant. It is not sufficient for jurisdiction under this section that the defendant has performed an act in New York; it is also required that the cause of action arise from that act. (Fontanetta v American Board of Internal Medicine, 42 1 F2d 355, C.A.N.Y. 1970). (McLaughlin Practice Commentaries, McKinney s Cons. Laws, Book 7B, CPLR 302, p.77). Therefore, the fact that a golf tour owned by the defendant travels through New York has no bearing on this Court exercising _ personam jurisdiction over the defendant unless the action was based on an issue dealing with the golf tour in New York. However, this action is not connected in any way to the defendant s golf tour, thus, the defendants golf tour that travels through New York does not establish sufficient contact, or articulable nexus between New York State and the defendant for this Court to exercise in personam jurisdiction over said defendant. It also then follows that, even if the defendant was in Southampton Hospital, New York and then residing with his ex-wife Mary Jane in New York, this action by the plaintiff against the defendant must have arisen from the act of the defendant s stay in New York. However, there is no evidence, or even an inference that the present claim by the plaintiff against the defendant has any connection to the defendants stay in New York. The aggregate ofthe defendant s activities innew York as established is not sufficient to conferjurisdiction over the defendant. (Krakower, 152 AD2d, at 528). Nor is there any indication that such stay was anything more than temporary and not incidental to the transaction which forms the basis of the plaintiffs complaint. Finally, the plaintiff argues that this Court has _ personam jurisdiction over the defendant because the said defendant had lived in New York for years. It is black letter law however, that a previous domicile in New York is not sufficient for this Court to exercise _ personam jurisdiction over a defendant who has had a domicile in California, and maintained that domicile at the time the note was executed, as well, for the past five years. Therefore, the motion by defendant to dismiss for lack of in granted. personam jurisdiction is 4

5 DALY vraphael Index no. 3358/00 In light of this determination, the plaintiffs motion for surnmary judgment, is denied. This order concludes the within matter assigned to me pursuant to the Uniform Rules for New York State Trial Courts. So Ordered. Dated JUN 2 6 -z&