IAS TERM, PART 28 NASSAU COUNTY

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1 INDEX NO SUPREME COURT - STATE OF NEW YORK IAS TERM, PART 28 NASSAU COUNTY PRESENT: HONORABLE LEONARD B. AUSTIN Justice NORMAN GOLDSTEIN, individually and as a Shareholder, Officer and Director of DROGUERIA de La Villa, Inc., FLAR MEDICINE OF PUERTO RICO INC., FMC DISTRIBUTORS OF PUERTO RICO, INC. and JOHN DOE CORP. #l THROUGH 5. Plaintiff, - against - X Motion WD: Submission Date: 8-1 l-00 Motion Sequence No.: 003/MOT D PLAINTIFF S ATTORNEY Dennis M. Apfel, Esq Deer Park Avenue Deer Park, New York DEFENDANT S ATTORNEY (for Sonia Thuna) Steven 0. Zalkin, P.C. 15 Maiden Lane - Suite 1008 New York, New York MARTIN THUNA, DRUGUERIA DE LA VILLA, INC., FMC DISTRIBUTORS OF PUERTO RICO, INC., FLAR MEDICINE OF PUERTO RICO INC., SONIA JUSINO DE THUNA, and JOHN DOE CORP. #l-5, Defendant. X (for remaining Defendants) Gellis & Melinger, LLP 127 Fifth Avenue New York, New York Upon the following papers read on Defendant, Sonia Thuna s motion seeking dismissal of the amended complaint on jurisdictional grounds and for failure to state a cause of action: Defendant s Notice of Motion; Affidavit of Sonia Jusino De Thuna; Affidavit of Norman Goldstein in Opposition; Plaintiffs Memorandum of Law; Reply Affidavit of Sonia Jusino De Thuna; Defendant s Memorandum of Law. 1

2 BACKGROUND Defendant Martin Thuna ( Thuna ) is a resident of the Commonwealth of Puerto Rico. Defendant Drogueria de la Valle, inc. ( Drogueria ) is a corporation incorporated under the laws of the Commonwealth of Puerto Rico with its sole place of business at Avenue De Diego No. 17, Arechio, Puerto Rico Drogueria is a wholesaler of drugs to independent pharmacies and hospitals in Puerto Rico. Defendant FMC Distributors of Puerto Rico, Inc. ( FMC ) is a corporation incorporated under the laws of the Commonwealth of Puerto Rico, with its sole place of business at Santiago De Los Cabeleros 3305 Ponce Harbor, Industrial Park, Ponce, Puerto Rico FMC is a manufacturer/distributer of medicinal products selling to wholesalers in Puerto Rico. Sonia Jusino De Thuna is owner of the corporations. Neither Drogueria nor FMC is authorized to do business in the State of New York. None of the Defendants has offices in New York. No Defendant sells goods in New York. No Defendant possesses real or personal property in New York. This Court, by Order dated August 17, 2000, previously dismissed the action against Martin Thuna, Drogueria de la Villa, Inc., and FMC Distributors of Puerto Rico, Inc. Defendant Sonia Jusino De Thuna now seeks the same relief. DISCUSSION CPLR 302 sets forth the basis for New York to exercise jurisdiction 2

3 over non-domiciliaries. In order to do so, Plaintiff must allege that Defendant: 1. Transacts business within the State or contracts anywhere to supply goods or services in the State; or 2. Commits a tortuous act within the State, except as to a cause of action for defamation of character arising from the act; or 3. Commits a tortuous act without the State causing injury to a person or property within the State except as to a cause of action for defamation of character arising from the act, if he 0) regularly does or solicits business, or engaged 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. Here, in Plaintiffs amended complaint, it is alleged that negotiations took place in New York and additional negotiations took place over the telephone. Plaintiff alleges that he paid $20, to complete the purchase of Drogueria and 3 $10, for

4 working capital and that such payments were made from New York. Plaintiff also alleges that from the inception of business of Drogueria, all purchases and sales were done through New York under the auspices of Norman Goldstein Associates ( NGA ), a corporation located in Hicksville, New York. In essence, Plaintiff s amended complaint has converted the action to a derivative suit and an action for declaratory judgment. Such an action is more appropriately brought in Puerto Rico, where Defendant corporations do business. Defendant has not shown the physical presence of Defendant Sonia Thuna in New York, which would subject Defendants to long arm jurisdiction under CPLR 302. Riblet Products Corp. v. Naqv, 191 A.D. 2d 626, 595 N.Y.S. 2d 228 (2nd Dept. 1993). In order to determine if long arm jurisdiction exists, the Court must consider whether a Defendant has engaged in sufficient purposeful activity in New York to confer jurisdiction which requires an examination of the totality of the circumstances. Multi - Modal International, Inc. v. Analia North America, Inc., 227 A.D. 2d 600, 643 N.Y.S. 2d 600 (2nd Dept. 1996). The burden of proving jurisdiction is upon the party asserting it. When challenged on jurisdiction, such party must sustain that burden by proof when conflicting affidavits raise questions of fact, credibility should be resolved by a hearing. Steiner v. Steiner, 81 A.D. 2d 725, 439 N.Y.S. 2d 499 (3rd Dept. 1981). In this case, accepting Plaintiff s allegations and arguments in a light most favorable to Plaintiff, 4

5 Plaintiff has failed to establish that any party, especially not Sonia Jusino De Thuna transacted business in New York so as to satisfy CPLR 302. Plaintiff has established that in 1995 both Drogueria and Flar Medicine of Puerto Rico, Inc. (now apparently FMC) received funds from non-party NGA. Plaintiff maintains that based upon his activities and that of NGA, Defendants agent transacted business in New York. Plaintiff may not rely upon his own activities within this State as Defendants agent as a basis of jurisdiction. Haaz v. Armendaris, 31 N.Y. 2d 1040, 342 N.Y.S. 2d 70 (1973). Plaintiff has been unable to articulate any nexus with this State on the part of Defendant Sonia has been transacting business in New York to justify jurisdiction being established here. See, McGowan v. Smith, 52 (1981). N.Y.2d 268, 437 N.Y.S.2d 643 This court lacks in personam jurisdiction over the named Defendant. Accordingly, it is; ORDERED, that Defendants motion to dismiss this action on grounds that the Court lacks jurisdiction over Sonia Jusino De Thuna is granted. This constitutes the decision and Order of the Court. Dated: Mineola, NY October 6,200O 5