FILED: KINGS COUNTY CLERK 09/28/ :42 PM INDEX NO /2016 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/28/2016

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1 FILED: KINGS COUNTY CLERK 09/28/ :42 PM INDEX NO /2016 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/28/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS LOUIS GRANDELLI, as Administrator of the Estate of ERAN MODAN, deceased, and RAYA OSTRIZKI, -against- Plaintiffs, Index No.: /16 HOPE STREET HOLDINGS, LLC, GOOSE PROPERTY MANAGEMENT, LLC, P&W ELEVATOR INC., PREFERRED ELEVATOR INC., LIFT-TECH, LTD., ASTRO ELEVATOR AND INSPECTIONS INC., LE GROUPE MANUFACTURIER, D'ASCENSEURS G LOBAL TARDIF INC., WARNER ELECTRIC EUROPE SAS, LEROY-SOMER POWER & DRIVERS a/k/a LEROY- SOMER MOTORS & DRIVERS, a/k/a LEROY SOMER, MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS Defendants. MEMORANDUM OF LAW BY WARNER ELECTRIC EUROPE, SAS IN SUPPORT OF ITS MOTION TO DISMISS THE COMPLAINT AND ALL CROSS-CLAIMS ECKERT SEAMANS CHERIN & MELLOTT, LLC Attorneys for Defendants WARNER ELECTRIC EUROPE SAS 10 Bank Street, Suite 700 White Plains, NY Tel: (914) Fax: (914) {V } 1 of 26

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii-iv PRELIMINARY STATEMENT...1 ARGUMENT... 3 POINT I. THIS COURT DOES NOT POSSESS PERSONAL JURISDICTION OVER WARNER UNDER THE NEW YORK LONG ARM STATUTE... 3 A. Warner is Not Subject to General Personal Jurisdiction Under C.P.L.R B. Warner is Not Subject to Personal Jurisdiction Under C.P.L.R. 302(a)(1) Because It is a Non-Domiciliary and Its Limited Sales to New York Are Not Related to the Plaintiffs Claims... 4 C. Warner is a French Company That Does Not Regularly Solicit Business in New York, Engage in Any Other Persistent Course of Conduct in New York or Derive Substantial Revenue from Goods Used or Consumed or Services Rendered in New York and Is Not Subject to Long Arm Jurisdiction Under C.P.L.R. 302(a)3(i)... 5 D. Warner Did Not Expect and Should Not Reasonably Have Expected Its Manufacture of Brakes Outside of New York to Have Had Consequences in New York and Cannot be Subject to Personal Jurisdiction Under C.P.L.R. 302(a)3(ii)... 7 POINT II. EXERCISING PERSONAL JURISDICTION OVER WARNER WOULD VIOLATE THE DUE PROCESS CLAUSE OF THE CONSTITUTION OF THE UNITED STATES A. This Court Does Not Possess General Jurisdiction Over Warner Because Warner is Not at Home in New York B. This Court Does Not Possess Specific Jurisdiction Over Warner Warner Does Not Have Minimum Contacts With New York It Would Offend Traditional Notions Of Fair Play and Substantial Justice For This Court to Exercise Personal Jurisdiction Over Warner POINT III. THE PLAINTIFFS FAILED TO STATE A CAUSE OF ACTION AND WARNER IS ENTITLED TO AN ORDER DISMISSING THE CLAIM PURSUANT TO C.P.L.R. 3211(a)(7) CONCLUSION i 2 of 26

3 CASES TABLE OF AUTHORITIES Page Allen v. Marais, S.A., 307 AD2d 613 [3d Dept 2003]... 6 Asahi Metal Indus. Co., Ltd. v Superior Ct. of California, Solano County, 480 US 102, 107 S Ct 1026 [1987]... 2 Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 129 [2d Cir.2002]..16 Best Van Lines, Inc. v Walker, 490 F3d 239, 247 [2d Cir 2007] Bill-Jay Mach. Tool Corp. v. Koster Industries Inc. 29 A.D. 3d 504 [2nd Dept. 2006]... 5 Bokhour v. GTI Retail Holdings, Inc., 94 AD3d 682 [2d Dept 2012] Boris v Bock Water Heaters, Inc., 3 Misc 3d 835 [Sup Ct 2004]... 8 Brown v CBS Corp., 19 F Supp 3d 390 [D Conn 2014], appeal withdrawn (Aug. 22, 2014), aff d sub nom. Brown v Lockheed Martin Corp., 814 F3d 619 [2d Cir 2016] Brown v Lockheed Martin Corp., 814 F3d 619, 627 [2d Cir 2016] Burger King Corp. v Rudzewicz,471 US 462, 105 S Ct 2174 [1985] Carpino v Natl. Store Fixtures Inc., 275 AD2d 580 [3d Dept 2000]... 8 Chestnut Ridge Air, Ltd. v Ontario Inc., 13 Misc 3d 807 [Sup Ct 2006]... 4 Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 171 [2d Cir.2010] Clarke v Laidlaw Tr., Inc., 125 AD3d 920 [2d Dept 2015] Daimler AG v Bauman, 134 S Ct 746 [2014]... 2 Darrow v Deutschland, 119 AD3d 1142 [3d Dept 2014]... 8 Delagi v Volkswagenwerk A.G. of Wolfsburg, Germany, 29 NY2d 426 [1972]... 3 Fischbarg v. Doucet, 9 N.Y.3d 375, 849 N.Y.S.2d 501 [2007]... 4 Frummer v. Hilton Hotels Intl., 19 N.Y.2d 533, 281 N.Y.S.2d 41 [1967]... 3 Goel v Ramachandran, 111 AD3d 783, [2d Dept 2013]... 3 ii 3 of 26

4 Goodyear Dunlop Tires Ops, S.A. v. Brown, 131 S. Ct. 2846, 2851 [2011] Guggenheimer v Ginzburg, 43 NY2d 268 [1977] Halas v Dick's Sporting Goods, 105 AD3d 1411 [4th Dept 2013]... 5 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct [1984] Ingram v. Carroll, 90 N.Y.2d 592, 665 N.Y.S.2d 10 [1997]... 7 International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154 [1945]... 2 Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct [1984] Kernan v. Kurz Hastings, Inc., 175 F.3d 236, [2d Cir.1999] Kipp v. Ski Enter. Corp. of Wis., 783 F.3d 695, 698 [7th Cir. 2015] LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210 [2000]... 2 Landoil Resources Corp. v. Alexander & Alexander Servs., 77 N.Y.2d 28, 563 N.Y.S.2d 739 [2015]... 3 Laufer v. Ostrow, 55 N.Y.2d 305, 449 N.Y.S.2d 456 [1982]... 3 Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 [9th Cir. 2014], cert. denied, 135 S. Ct [2015] Metro. Life Ins. Co. v Robertson-Ceco Corp., 84 F3d 560, 567 [2d Cir 1996] Monkton Ins. Servs., Ltd. v. Ritter 768 F.3d 429, 432 [5th Cir. 2014]DELETE Paterno v Laser Spine Inst., 24 NY3d 370 [2014]... 4 Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 [1952] Simonson v. International Bank, 14 N.Y.2d 281, 251 N.Y.S.2d 433 [1964]... 3 Steiner v Lazzaro & Gregory, P.C., 271 AD2d 596 [2d Dept 2000] United States v. First National City Bank, 379 U.S. 378, 85 S.Ct. 528, 13 L.Ed.2d 365 [1965]18 Williams v Beemiller, Inc., 100 AD3d 143, 154 [4th Dept 2012], op amended on rearg, 103 AD3d 1191 [4th Dept 2013]... 6 World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, [1980] iii 4 of 26

5 RULES C.P.L.R C.P.L.R C.P.L.R. 302(a)(1)...3 C.P.L.R. 302(a)(3)(i)...3 C.P.L.R. 302(a)(3)(ii)...3 C.P.L.R. 3211(a)(7)...3 C.P.L.R. 3211(a)(8)...3 U.S. Const. am iv 5 of 26

6 PRELIMINARY STATEMENT The case was brought by the Estate of Eran Modan against multiple defendants including Warner Electric Europe, SAS ( Warner ). The Plaintiffs Complaint alleges that Mr. Modan died as a result of his injuries while attempting to exit a Genius model elevator in Brooklyn, New York. The Plaintiffs make a broad allegation that all defendants were negligent in ownership, management, inspection, maintenance, testing, design, manufacturing, installation, labeling, operation, and control of the subject premises, including the elevator and its appurtenances, at the premises. Defendant, Warner Electric Europe, SAS, is a French company that manufactures brakes which are incorporated into elevators by other companies and has no knowledge of the end customer of its products as a component part of other products. Warner is not subject to personal jurisdiction in New York and therefore, Warner cannot be subject to a New York lawsuit. Here, Warner is at least three steps removed from the New York Market. It is a French company that manufactures elevator brakes in France. The specific VAR11 brakes allegedly at issue in this case were sold by Warner to Moteurs Leroy-Somer, also a French company. Moteurs Leroy-Somer incorporated the Warner brakes into an A. C. drive for elevators as component parts. Moteurs Leroy-Somer then presumably sold its A. C. drive for elevators which contained Warner brakes as component parts, to another entity. However, Warner is not aware of the transactions that took place following its sale of brakes to Moteurs Leroy-Somer. Following the incident at issue in the present case, Warner became aware that an elevator A. C. drive manufactured by Moteurs Leroy-Somer, which contained two Warner elevator brakes as component parts, was sold (though Warner is not aware of the transactions that led to this sale) to Le Groupe Manufacturier D Ascenseurs Global Tardif Inc., a Canadian company ( Global Tardif ). Global Tardif then incorporated the elevator A. C. drive into its Genius model Elevator. A Genius model elevator manufactured by Global Tardif is the elevator at issue in this case. At this time it is not clear 1 6 of 26

7 to Warner what if any additional transactions took place after Global Tardif incorporated the A. C. drive into its Genius elevator before the elevator was installed at the premises at issue in New York, New York. To determine whether a non-domiciliary may be sued in New York, we first determine whether our long-arm statute (CPLR 302) confers jurisdiction over it in light of its contacts with this State. If the defendant s relationship with New York falls within the terms of CPLR 302, we determine whether the exercise of jurisdiction comports with due process. LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210, 214 [2000]. First, in this case, Warner s contacts with New York are so remote and unrelated to the claim at issue that the long-arm statute does not confer jurisdiction over Warner. Second, assuming arguendo that the long-arm statute does confer jurisdiction over Warner, exercising such jurisdiction would violate due process as Warner is not at home in New York. Daimler AG v Bauman, 134 S Ct 746, 760 [2014] (The Daimler Court held that a corporation is generally "at home," and hence subject to general jurisdiction, in only two states: its state of incorporation, and its principal place of business). Third, Warner has not purposefully established minimum contacts in New York. See Asahi Metal Indus. Co., Ltd. v Superior Ct. of California, Solano County, 480 US 102, S Ct 1026 [1987] ( [T]he constitutional touchstone of the determination whether an exercise of personal jurisdiction comports with due process remains whether the defendant purposefully established minimum contacts' in the forum State. ). Further, exercising personal jurisdiction over Warner would offend traditional notions of fair play and substantial justice. Id. at 105; citing International Shoe Co. v. Washington, 326 US 310, 316, 66 S Ct 154, 158 [1945], ( minimum contacts between the defendant and the forum State such that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. internal citation omitted). 2 7 of 26

8 Accordingly, as personal jurisdiction over Warner cannot be established in New York, the Plaintiffs have failed to state a claim for which relief can be granted pursuant to C.P.L.R. 3211(a)(7), 3211(a)(8), 301; 302(a)(1); 302(a)(3), and U.S. Const. am. 14. ARGUMENT POINT I. THIS COURT DOES NOT POSSESS PERSONAL JURISDICTION OVER WARNER UNDER THE NEW YORK LONG ARM STATUTE. It is well established that the plaintiff bears the burden to prove that personal jurisdiction exists over each of the defendants. Copp v Ramirez, 62 AD3d 23, 28 [1st Dept 2009]. A. Warner is Not Subject to General Personal Jurisdiction Under C.P.L.R. 301 In New York [a] foreign corporation is amenable to suit in New York courts under CPLR 301 if it has engaged in such a continuous and systematic course of doing business' here that a finding of its presence in this jurisdiction is warranted Landoil Resources Corp. v. Alexander & Alexander Servs., 77 N.Y.2d 28, 33, 563 N.Y.S.2d 739 [1990], quoting Laufer v. Ostrow, 55 N.Y.2d 305, , 449 N.Y.S.2d 456 [1982]; see also Frummer v. Hilton Hotels Intl., 19 N.Y.2d 533, 536, 281 N.Y.S.2d 41 [1967]; Simonson v. International Bank, 14 N.Y.2d 281, 285, 251 N.Y.S.2d 433 [1964]). The test is whether the aggregate of the corporation's activities in the State [are] such that it may be said to be present in the State not occasionally or casually, but with a fair measure of permanence and continuity Goel v Ramachandran, 111 AD3d 783, [2d Dept 2013], quoting Laufer v. Ostrow, 55 N.Y.2d 305, 310. The mere sales of a manufacturer's product in New York, however substantial, have never made the foreign corporation manufacturer amenable to suit in this jurisdiction. Delagi v Volkswagenwerk A.G. of Wolfsburg, Germany, 29 NY2d 426, 433 [1972]. In Delagi a German manufacturer of automobiles advertised its vehicles in New York, but had no employees and no facilities in New York. Id. While the German manufacturer used 3 8 of 26

9 independent franchises to sell its vehicles, the Court found that something more was required and set the standard that mere sales of a product in New York is not sufficient to establish personal jurisdiction over a defendant. Id. More recently the Supreme Court of New York County found that a Canadian defendant that specialized in refinishing aircrafts was doing business in New York because it derived at least 4% of its annual revenue from New York customers, engaged in continuous activity in New York since its incorporation, spent an average of 14 weeks per year on New York business, maintained an interactive website where it solicits customers in New York, provided a forum for prospective customers to post questions directly to the defendant, provided a forum for customers to post items to sell or rent, and even provided customers with a private website to monitor daily progress of projects. Chestnut Ridge Air, Ltd. v Ontario Inc., 13 Misc 3d 807, 810 [Sup Ct 2006]. In this case, the defendant, Warner, is a French company with no employees in New York, no facilities in New York, no solicitation of New York customers, and with sales to New York limited to 0.85% of its total sales from 2013 through 2016 (year to date). See Affidavit (attached hereto as Exhibit A). This is a far cry from the continuous activity of the Canadian defendant in Chestnut Ridge Air. Warner s limited contacts with New York fall far short of continuous and systemic. As such, there is no general jurisdiction of Warner in New York under C.P.L.R B. Warner is Not Subject to Personal Jurisdiction Under C.P.L.R. 302(a)(1) Because It is a Non-Domiciliary and Its Limited Sales to New York Are Not Related to the Plaintiffs Claims Whether a non-domiciliary is transacting business within the meaning of C.P.L.R. 302(a)(1) is a fact based determination, and requires a finding that the non-domiciliary's activities were purposeful and established a substantial relationship between the transaction and the claim asserted Paterno v Laser Spine Inst., 24 NY3d 370, 376 [2014], quoting 725 Fischbarg v. Doucet, 9 N.Y.3d 375, 380, 849 N.Y.S.2d 501 [2007]. See also Copp v Ramirez, 62 AD3d 23, 28 [1st Dept 4 9 of 26

10 2009] ( long-arm jurisdiction over a non-domiciliary exists where a defendant transacted business within the state, and the cause of action arose from that transaction. If either prong of the statute is not met, jurisdiction cannot be conferred. ) (internal citation omitted). See also Bill-Jay Mach. Tool Corp. v. Koster Industries Inc. 29 A.D. 3d 504, 505,506 [2nd Dept. 2006]. In this case, Warner s only sales to New York were of a product not at issue in the present matter. See Affidavit (Exhibit A). As such, there is no relationship between the transactions described in the attached Affidavit (Exhibit A) and the claims asserted against Warner, let alone a substantial one. Compare Halas v Dick's Sporting Goods, 105 AD3d 1411 [4th Dept 2013] (New York long-arm jurisdiction over a non-domiciliary existed because the defendant maintained a website directing customers where to purchase their products in New York State from its exclusive distributor which had 36 stores in New York and its allegedly defective board was sold in New York through its distributor). C. Warner is a French Company That Does Not Regularly Solicit Business in New York, Engage in Any Other Persistent Course of Conduct in New York or Derive Substantial Revenue from Goods Used or Consumed or Services Rendered in New York and Is Not Subject to Long Arm Jurisdiction Under C.P.L.R. 302(a)3(i) While there is limited case law applying C.P.L.R. 302(a)(3)(i), the standard is similar to C.P.L.R. 302(a)(1). To meet the requirements of the long arm statute, a plaintiff must demonstrate that defendant 1) regularly does business in New York; or 2) regularly solicits business in New York; or 3) engages in any other persistent course of conduct in New York; or 4) derives substantial revenue from goods used or consumed or services rendered in New York. As described supra, arguably Warner s only so-called contact with New York are its limited sales to the state, amounting to only an annual average of 0.85% of its total sales from 2013 through 2016 (year to date). See Affidavit (Exhibit A). This extremely limited amount of sales to New York does not rise to the level of conducting business in the state. Further, Warner does not 5 10 of 26

11 have property, offices, employees, phone numbers, or bank accounts in New York. Warner is not incorporated in New York and its principle place of business is not in New York. See Affidavit (Exhibit A). Furthermore, Warner does not advertise in New York; it does not send sales representatives/employees or any type of employees to New York for any reason, and does not market to New York on its web site. In fact customers cannot make purchases from Warner s website. As such, there is no evidence that Warner regularly solicits business in New York. See Affidavit (Exhibit A). Whether a defendant engages in any other persistent course of conduct was considered by the Appellate Division, Third Department in See Allen v. Marais, S.A., 307 AD2d 613, 614 [3d Dept. 2003] (manufacturer that made a product in France that caused injury in New York engaged in persistent course of conduct because it sent employees to New York to make repairs and provide training and supervision for use of product, and a principal of the defendant company frequently traveled to the New York to inspect the defendant s equipment to determine what operational problems existed). Here, Warner has engaged in no such course of conduct, let alone persistent course of conduct, as it was at least three steps removed from the New York market and it does not send representatives to New York for training, repairs, supervision, or inspections. A foreign gun salesman was found to have derived substantial revenue from goods used or consumed in New York when it sold 181 guns to a New York resident, one of which was involved in an alleged injury in New York, and which had sales to New York constituting 47% of the company s sales that year. Williams v Beemiller, Inc., 100 AD3d 143, 154 [4th Dept 2012], op amended on rearg., 103 AD3d 1191 [4th Dept. 2013]. Here, Warner s sales to New York were 0.85% of its total revenue, none of which was comprised of the product that allegedly caused injury to the Plaintiffs decedent in the present matter. See Affidavit (Exhibit A). Comparing Warner s 6 11 of 26

12 sales to the defendant s sales in Williams would require an application of the substantial revenue analysis when the ratio of the Williams s defendants sales of guns that did cause the injury at issue was over fifty (50) times the ratio of Warner s sales of a product to New York Customers (a product and customers that are not related to the Plaintiffs claim). D. Warner Did Not Expect and Should Not Reasonably Have Expected Its Manufacture of Brakes Outside of New York to Have Had Consequences in New York and Cannot be Subject to Personal Jurisdiction Under C.P.L.R. 302(a)3(ii) In deciding a motion to dismiss pursuant to C.P.L.R. 302(a)(3)(ii), the Court must determine whether 1) the defendant committed a tortious act outside the State; 2) that the cause of action arises from that act; 3) that the act caused injury to a person or property within the State; 4) that defendant expected or should reasonably have expected the act to have consequences in the State; and 5) that defendant derived substantial revenue from interstate or international commerce. LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210, 214 [2000]. First, Warner does not concede that it committed a tortious act. Second, Warner does not concede that the cause of action arose from any such act. Third, Warner does not concede that any such act caused injury to a person in New York. The fourth element contemplating in-state consequences is met when the nonresident tortfeasor expect[s] or ha[s] reason to expect that his or her tortious activity in another State will have direct consequences in New York LaMarca, 95 N2d at 214, citing Ingram v. Carroll, 90 N.Y.2d 592, 598, 665 N.Y.S.2d 10 [1997], [emphasis added by Lamarca court]). In Lamarca the Court found that the defendant had reason to expect that defects would have direct consequences in New York where defendant sold the allegedly faulty product at issue to its New York distributor which then sold it to the employer of the injured plaintiff. 95 NY2d at 215. The Court found that the defendant had knowledge of the product s final destination based on a reference to New York in an invoice, and based on these facts, the defendant had reason to expect 7 12 of 26

13 that defects would have direct consequences in New York. Id. In comparison, C.P.L.R. 302(a)(3)(ii) did not convey jurisdiction over the defendant in Carpino v Natl. Store Fixtures Inc., 275 AD2d 580 [3d Dept 2000]. (The court did not have personal jurisdiction over nondomiciliary supplier of allegedly defective board which used Lowe s to distribute its products and only 0.5% of its products made their way to NY through that distributor). Unlike the defendant in Lamarca, Warner had no knowledge that its brakes were destined for New York as it was far removed from the final sale of its brakes, which were incorporated into a drive system by a second company and then incorporated by a third company as a component part of a complete elevator. See Affidavit (Exhibit A). Although 0.85% of Warner s total sales were to New York customers, that in itself is not sufficient to exercise personal jurisdiction over Warner. Carpino 275 AD2d 580 [3d Dept 2000]; Compare Affidavit (Exhibit A). In controlling cases where New York courts have exercised personal jurisdiction over a party moving to dismiss for lack of personal jurisdiction, when concluding that the defendant should reasonably have expected the act to have consequences in New York, the defendant has sold the product directly to the New York market or has been only one step removed from the New York market. See Darrow v Deutschland, 119 AD3d 1142 [3d Dept 2014]. (The court held that the defendant, a German radio remote control manufacturer, should reasonably have expected consequences in New York because it exclusively used H-USA to distribute its products to various Unites States locations including New York and its website demonstrated the defendant s awareness of the distribution network). See also Halas v Dick's Sporting Goods, 105 AD3d 1411 [4th Dept 2013]. (The Court held that the defendant should reasonably have expected its defective manufacture of tree stands to have consequences in New York as the defendant had an exclusive distribution agreement for tree stands it manufactured with Dick s Sporting Goods which had 36 stores in New York); See Also Boris v Bock Water Heaters, Inc., 3 Misc 3d 835 [Sup Ct 2004] of 26

14 (Supreme Court of Suffolk County held that based upon Bock s sale of water heaters to New York and all 50 states through its website, although using a New Jersey distributor for its products in New York, it was subject to personal jurisdiction in New York as it should have known that a defect in its product would have New York consequences). Significant to the case at hand, the court in Boris also found that a co-defendant, Perfection, was two steps removed from introduction of the complete product into the New York market where they were an out of state corporation that supplied component parts for water heaters to an out of state manufacturer, Bock, of water heaters. Id. at 456. Perfection admitted it sold over 90% of its component to U.S. water heater manufacturers, and its website contained a statement that: If you purchase a water heater in the United States or Canada it will probably contain Perfection components. Id. Even so, the Court noted that the Supreme Court has ruled that foreseeability is not sufficient but due process requires the defendant have some purposeful affiliation with New York and the Court did not rule that the plaintiff had made a prima facie case but found that plaintiffs had made a sufficient start to entitle him to jurisdictional discovery. Id. at Here, Warner is at least three steps removed from the New York Market. It is a French company that manufactures elevator brakes in France. It sold the specific VAR11 brakes allegedly at issue in this case to Moteurs Leroy-Somer, also a French company. Moteurs Leroy-Somer incorporated the Warner brakes into an A. C. drive for elevators as component parts. Moteurs Leroy- Somer then presumably sold its A. C. drive for elevators which contained Warner brakes as component parts, to another entity. However, Warner is not aware of the transactions that took place following its sale of brakes to Moteurs Leroy-Somer. Following the incident at issue in the present case, Warner became aware that an elevator A. C. drive manufactured by Moteurs Leroy-Somer, which contained two Warner elevator brakes as component parts, was sold (though Warner is not aware of the transactions that led to this sale) to Le Groupe Manufacturier D Ascenseurs Global 9 14 of 26

15 Tardif Inc., a Canadian company ( Global Tardif ). Global Tardif then incorporated the elevator A. C. drive into its Genius model Elevator which was eventually installed at the location of the incident at issue. A Genius model elevator manufactured by Global Tardif is the elevator at issue in this case. At this time it is not clear to Warner what additional transactions took place after Global Tardif incorporated the A. C. drive into its Genius elevator before the elevator was installed at the premises at issue in New York, New York. Nevertheless, any further action taken after Global Tardiff incorporated the A. C. drive into its Genius elevator with respect to the sale of the elevator to the end user, would only further remove Warner from the New York market POINT II. EXERCISING PERSONAL JURISDICTION OVER WARNER WOULD VIOLATE THE DUE PROCESS CLAUSE OF THE CONSTITUTION OF THE UNITED STATES The United States Supreme Court has recognized two types of personal jurisdiction: specific and general. See Daimler AG v Bauman, 134 S Ct 746, 749 [2014]. Assuming arguendo that the long-arm statute does confer jurisdiction over Warner, exercising such jurisdiction would violate due process. This Court does not have general jurisdiction over Warner as Warner is not at home in New York Id. This Court does not have specific jurisdiction over Warner as Warner has not purposefully established minimum contacts in New York. Asahi Metal Indus. Co., Ltd. v Superior Ct. of California, Solano County, 480 US 102, 107 S Ct 1026 [1987]; Burger King Corp. v Rudzewicz, 471 US 462, 105 S Ct 2174 [1985]; and exercising jurisdiction over Warner would offend traditional notions of fair play and substantial justice. Asahi Metal Indus. Co., Ltd., 107 S Ct 1026; International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154 [1945]; U.S. Const. am. 14. A. This Court Does Not Possess General Jurisdiction Over Warner Because Warner is Not at Home in New York General personal jurisdiction is properly exercised when a foreign corporation s continuous corporate operations within a state [are] so substantial and of such a nature as to of 26

16 justify suit against it on causes of action arising from dealings entirely distinct from those activities. Daimler, 134 S.Ct. at 749 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 318 [1945]). It is not enough, however, that a foreign corporation s contacts with the forum state are in some sense continuous and systematic, [but rather] it is whether that corporation s affiliations with the State are so continuous and systematic as to render [it] essentially at home in the forum state. Daimler, 134 S.Ct. at 751; citing Goodyear Dunlop Tires Ops, S.A. v. Brown, 131 S. Ct. 2846, 2851 [2011](emphasis added). The Daimler Court held that a corporation is generally "at home," and hence subject to general jurisdiction, in only two states: its state of incorporation, and its principal place of business. Id. at 760. The Daimler Court so reasoned because the exercise of general jurisdiction in every State in which a corporation engages in a substantial, continuous, and systematic course of business would be unacceptably grasping because the corporation cannot be deemed at home in all of those states. Id. at 761, 762, n. 20. The inquiry, therefore, is whether a corporation s affiliations with the State are so continuous and systematic as to render it essentially at home in the forum State. Daimler, 134 S.Ct. at 761, (quoting Goodyear, 131 S.Ct. at 2851)(internal quotation marks and brackets omitted). The corporation s operations in the forum state must be of such a nature and substance to justify the exercise of jurisdiction. Id. Applying these principles, the U.S. Court of Appeals for the Second Circuit recently held that except in a truly exceptional case, a corporate defendant may be treated as essentially at home only where it is incorporated or maintains its principal place of business... Brown v Lockheed Martin Corp., 814 F3d 619, 627 [2d Cir 2016](internal citations omitted). 1 In Brown, with the matter arising out of the District Court of Connecticut, defendant Lockheed sought to 1 Warner s corporate/operations history does not pose an exceptional case for jurisdictional purposes. See Daimler, 134 S.Ct. at (citing Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, [1952](where the Court identified an example of such an exceptional case when the forum state was the corporation s principal, if temporary, place of business because its operations elsewhere had been suspended during World War II.) of 26

17 dismiss a suit against it on personal jurisdiction grounds. In its argument at the District Court level, Lockheed cited that it was a Maryland corporation with its primary headquarters in Maryland, and five related sub-headquarters in Maryland, Virginia, Texas, and Colorado. Brown v CBS Corp., 19 F Supp 3d 390 [D Conn 2014], appeal withdrawn (Aug. 22, 2014), aff d sub nom. Brown v Lockheed Martin Corp., 814 F3d 619 [2d Cir 2016] (internal citations omitted). During the years between 2008 and 2012, however, Lockheed maintained employees at four different locations in Connecticut, including one where it had operated since Id. at The company derived approximately $160 million in revenue from its Connecticut-based work during this time-period, paid in-state income taxes, and maintained workers compensation insurance policies for its employees in accordance with Connecticut law. Id. Despite the apparent substance of Lockheed s contacts with Connecticut, the Second Circuit found the figures, in context of Lockheed s business as a whole, to be minimal. Lockheed, 814 F3d at Specifically, Lockheed s Connecticut-based employees made up less than 0.05% of its total work force, and the revenue they generated in any given year never exceeded 0.107% of Lockheed s total annual revenue. Id. at 629. Further, Lockheed did not own any real estate in Connecticut, held no bank accounts there, and the primary focus of its work there was in pursuit of contracts with the federal government and not directed towards Connecticut residents. Id. at Therefore, following Daimler, the Second Circuit affirmed the District Court s finding that Lockheed s minimal activities in Connecticut, compared with its overall operations, were insufficient to declare Connecticut as Lockheed s home jurisdiction for the purposes of general personal jurisdiction. Id. The Second Circuit s finding is consistent with the jurisprudence of multiple other circuits, all which recognize that an incredibly high threshold must be satisfied before a court can exercise general jurisdiction over a corporation in a forum other than its place of of 26

18 incorporation or principal place of business. See Kipp v. Ski Enter. Corp. of Wis., 783 F.3d 695, 698 [7th Cir. 2015] (noting the stringent criteria in Goodyear and Daimler); Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 [9th Cir. 2014], cert. denied, 135 S. Ct [2015](holding that Daimler makes clear the demanding nature of the standard for general personal jurisdiction over a corporation); Monkton Ins. Servs., Ltd. v. Ritter 768 F.3d 429, 432 [5th Cir. 2014](finding, in light of Daimler, it is difficult to establish general personal jurisdiction in a forum other than the place of incorporation or principal place of business). Here, this Court may not exercise general jurisdiction over Warner as a matter of due process because Warner is not at home in New York. Warner is a French company organized under the laws of France and has a principal place of business in France See Affidavit (Exhibit A). Further, Warner s minimal revenue derived from sales in New York from 2013 through 2016 (year to date) only amounts to 0.85% of its annual average sales substantially similar to the defendants revenue derived within the disputed forum in both Daimler and Brown. See Affidavit (Exhibit A). Therefore, applying Daimler, there is no basis to assert New York is an appropriate forum with general jurisdiction over Warner. Moreover, there are no exceptions present that would allow this Court to exercise general jurisdiction over Warner. Compare Supra Daimler, 134 S.Ct. at ; citing Perkins, 342 U.S. 437, [1952]. See Footnote 1, supra. Beyond the demanding standard set by the Daimler Court for asserting general jurisdiction, Warner still lacks the requisite contacts with New York. Warner does not have, nor has it ever had, any facilities, offices, or employees in New York. Affidavit (Exhibit A); Warner has never owned, leased or possessed any property in New York. Id.; Warner does not have nor has it ever maintained a phone number in New York. Id.; Warner is not registered to do business nor does it have a registered agent in New York. Id.; Warner has never maintained a banking, savings, or investment account in New York. Id.; Warner has never had any ownership interest of 26

19 in any business based in New York. Id.; and Warner s minimal revenue derived from sales in New York over from 2013 through 2016 (year to date) does not amount to more than 0.85% of its overall sales generated. Id. Therefore, in line with Daimler, Warner s lack of meaningful contact with New York is insufficient to establish the continuous, purposeful and systematic contacts required to permit general jurisdiction. B. This Court Does Not Possess Specific Jurisdiction Over Warner For personal jurisdiction to lie, a Court's assertion of jurisdiction must comply with due process in addition to satisfying the requirements of New York's long-arm jurisdiction statute. See Burger King Corp, 471 U.S. 462, 486, 105 S.Ct [1985] (finding that exercise of state long-arm jurisdiction did not offend due process). The due process requirement, as set forth in International Shoe Co., 326 U.S. 310, 66 S.Ct. 154 [1945], protects a person without meaningful ties to the forum state from being subjected to binding judgments within its jurisdiction. Metro. Life Ins. Co. v Robertson-Ceco Corp., 84 F3d 560, 567 [2d Cir 1996]. The due process test has two prongs: minimum contacts and reasonableness. Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 171 [2d Cir.2010]. 1. Warner Does Not Have Minimum Contacts With New York Generally, the minimum contacts inquiry overlaps significantly with the transaction of business inquiry under C.P.L.R. 302(a)(1). Best Van Lines, Inc. v Walker, 490 F3d 239, 247 [2d Cir 2007] ( It may be that the meaning of transact[ing] business' for the purposes of section 302(a)(1) overlaps significantly with the constitutional minimum contacts' doctrine. ). However, because New York's long-arm statute encompasses a wider range of activity than the minimumcontacts doctrine, the Court must undertake an additional analysis under the due process clause. See Id. at 248 ( Some distance remains between the jurisdiction permitted by the Due Process Clause and that granted by New York's long-arm statute. ) of 26

20 To establish the minimum contacts necessary to comport with the due process clause, the Court must determine that the defendant purposefully availed himself of the privilege of doing business in New York such that the defendant should reasonably anticipate being hailed into court there. World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559 [1980]; Kernan v. Kurz Hastings, Inc., 175 F.3d 236, [2d Cir.1999]. International Shoe recognized, as well, that the commission of some single or occasional acts of the corporate agent in a state may sometimes be enough to subject the corporation to jurisdiction in that State's tribunals with respect to suits relating to that in-state activity. Id., at 318, 66 S.Ct Adjudicatory authority of this order, in which the suit aris[es] out of or relate[s] to the defendant's contacts with the forum, Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, n. 8, 104 S.Ct [1984], is today called specific jurisdiction. Daimler, 134 S Ct at 754 [2014]. Further, a corporation's continuous activity of some sorts within a state is not enough to support the demand that the corporation be amenable to suits unrelated to that activity. Id. at 757; citing International Shoe Co., 326 US at 318. Here, the only activity Warner has had that could possibly be construed as activity within New York is limited sales of products unrelated to the products at issue in this case to customers unrelated to the products at issue in this case. Extremely small amounts of sales of unrelated products to New York customers by Warner does not rise to continuous activity, but even assuming arguendo, that it did, this suit is unrelated to such activity and therefore the requirement of minimum contacts is not met. Further, Warner was did not know and had no reason to know that its VAR11 brakes would be incorporated into a product that would be sold to an end user in New York. As such, its placement of the VAR11 brakes into the stream of commerce is not sufficient to meet the requirement for minimum contacts. Furthermore, Warner s placement of the VAR11 brakes into the stream of commerce in general, connotes neither an action purposefully directed of 26

21 toward New York, nor a substantial connection to New York. See Burger King, 471 US at 476, 105 S Ct at 2184; Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774, 104 S.Ct. 1473, 1478 [1984]; Asahi Metal Indus. Co., 480 US at 112 ( The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum state. Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum state, for example, designing the product for the market in the forum state, advertising in the forum state, establishing channels for providing regular advice to customers in the forum state, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum state. But a defendant's awareness that the stream of commerce may or will sweep the product into the forum state does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum state. ) 2. It Would Offend Traditional Notions of Fair Play and Substantial Justice For This Court to Exercise Personal Jurisdiction Over Warner Even when a non-domiciliary defendant avails himself of the protections of the foreign forum, the Court must determine whether the exercise of personal jurisdiction over the defendant is reasonable under the circumstances of the particular case. Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 129 [2d Cir.2002]. Personal jurisdiction is reasonable under the Due Process Clause when it does not offend traditional notions of fair play and substantial justice. Chloe, 616 F.3d at 173; citing Asahi Metal Indus. Co., 480 US at 113. Five factors must be considered in determining whether exercising jurisdiction over a non-resident defendant is reasonable: [1] the burden on the defendant, [2] the interests of the forum State, and [3] the plaintiff's interest in obtaining relief. [The Court] must also weigh in its determination [4] the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and [5] the shared interest of the several States in furthering fundamental substantive social policies. Asahi of 26

22 Metal Indus. Co., 480 US at 113, citing World-Wide Volkswagen, 444 U.S., at 292, 100 S Ct, at 564 (citations omitted). Regarding the first factor, the burden on Warner to travel from France to participate in discovery, depositions, Court conferences and trial in New York would be substantial. Prior to the filing of this suit, a site inspection took place in November, It was necessary for Warner to be present for the site inspection and as such, it had no choice but to send multiple engineers who live and work in France, as the engineering expertise of Warner s employees was crucial for the inspection in the event of a resulting claim against Warner. Some courts have found that this burden is substantially diminished in today's modern age, but it remains an important factor. See Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, (2d Cir.2002) ( the conveniences of modern communication and transportation ease what would have been a serious burden only a few decades ago ). However, the Second Circuit recently found that it was unreasonable for a Vermont court to exercise jurisdiction over a Delaware corporation with its principal place of business in Pennsylvania when none of the defendants records, files, or witnesses with information about the litigation were located in Vermont. Metro. Life Ins. Co. v Robertson-Ceco Corp., 84 F3d 560, 574 [2d Cir 1996]. Here, the burden on Warner is much greater as all of its records, files, and witnesses with information concerning the subject matter of the litigation are located in France. As the Court in Asahi pointed out, the determination of the burden on a defendant is more than a simple analysis of logistics of travel, but where there are unique burdens placed upon a company who must defend itself in a foreign legal system, there is certainly a burden on the defendant and should be significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders. Asahi Metal Indus. Co, 480 US at of 26

23 As to the second factor, New York has an interest in adjudicating disputes arising in New York, and providing redress to its citizens. Even though Mr. Modan was in New York and the injury occurred in New York, it is not clear that he was a New York citizen and the Plaintiffs Complaint does not allege that Mr. Modan was a New York citizen or that any named Plaintiff is a New York citizen. Plaintiff Raya Ostrizki is a resident and citizen of Israel. See Plaintiffs Amended Complaint. Upon information and belief, Mr. Modan was an Israel native, his family still lives in Israel, and he was visiting the premises where the injury occurred. The third factor, plaintiffs interests in obtaining a relief in New York, while often favoring Plaintiffs that have an interest in obtaining relief where an injury occurred (in this case New York), there is no assertion or support for such an interest on Plaintiffs part. As such, Plaintiffs purported interest in obtaining relief in a New York Court does not lend support to a jurisdictional argument in this case. The Plaintiffs have not alleged that the Mr. Modan or any Plaintiff is a New York resident. And in fact, upon information and belief, Mr. Modan was an Israeli native. As to the fourth and fifth factors, the court must consider the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction by the New York Court. Asahi Metal Indus. Co., 480 US at 115; citing World-Wide Volkswagen Corp., 444 US 286. Here, where it is not disputed that Warner is a French company, it is clear that the real and substantial burden upon Warner to defend itself in a New York lawsuit far outweighs the purported interests of the Plaintiffs and of New York. Asahi Metal Indus. Co, 480 US at 115; citing United States v. First National City Bank, 379 U.S. 378, 404, 85 S.Ct. 528, 542, 13 L.Ed.2d 365 [1965] of 26

24 POINT III. THE PLAINTIFFS FAILED TO STATE A CAUSE OF ACTION AND WARNER IS ENTITLED TO AN ORDER DISMISSING THE CLAIM PURSUANT TO C.P.L.R. 3211(a)(7) There are two standards this Court may consider as the standard of review for a motion to dismiss pursuant to C.P.L.R. 3211(a)(7) for failure to state a cause of action. First, the Court of Appeals has held that the when the essential facts in a plaintiff s complaint have been negated beyond substantial question by affidavits submitted, the pleader fails to state a cause of action. Guggenheimer v Ginzburg, 43 NY2d 268 [1977]. Second, even if this Court is not inclined to embrace the negates beyond substantial question standard, at a minimum, affidavits support dismissal of a case when they conclusively establish that the plaintiff has no cause of action. Clarke v Laidlaw Tr., Inc., 125 AD3d 920, 922 [2d Dept 2015]; citing Bokhour v. GTI Retail Holdings, Inc., 94 AD3d 682, 683 [2d Dept 2012]; See Steiner v Lazzaro & Gregory, P.C., 271 AD2d 596 [2d Dept 2000] (when evidentiary material has been considered, the court must determine whether the proponent of the pleading has a cause of action, not whether he or she has stated one). On its face, the Plaintiffs Complaint alleges in part: The defendant, WARNER ELECTRIC EUROPE SAS, was and still a foreign XXXXXX[;], The defendant, WARNER ELECTRIC EUROPE SAS, was and still is authorized to do business in the State of New York[;] The defendant, WARNER ELECTRIC EUROPE SAS, did business in the State of New York[;][and] Prior to October 2, 2015, the defendant, WARNER ELECTRIC EUROPE SAS, was a manufacturer of the brake system installed in the certain machine-room-less Genius model elevator at the subject premises. Plaintiffs Amended Verified Complaint. It is an essential fact for the Plaintiffs to have jurisdiction over Warner. As explained in detail supra the Plaintiffs do not have jurisdiction over Warner. Without that essential fact, there is no cause of action. Contrary to the Plaintiffs Amended Complaint, Warner is not and has never of 26

25 been authorized to do business in the state of New York. Affidavit (Exhibit A). Further, and contrary to Plaintiffs Amended Complaint (as explained in detail supra), Warner did not conduct business in the state of New York. Affidavit (Exhibit A). CONCLUSION Defendant, Warner Electric Europe, SAS, is a French company that manufactures brakes in France which are sold to a drive system manufacturer. The resulting component part, containing Warner s elevators are sold to other companies and are installed into elevators by other companies. Warner has no knowledge of the end customer of its brakes, which are component parts of other products. Moreover, Warner is at least three steps removed from the New York market. As explained in detail supra, Warner is not subject to Personal Jurisdiction in New York. Warner s only contacts with New York are extremely remote and unrelated to the claim at issue such that that the long-arm statute does not confer jurisdiction over Warner. Even assuming arguendo that the long-arm statute does confer jurisdiction over Warner, exercising such jurisdiction would violate due process as Warner is not at home in New York as required by the Court in Daimler (cited above). Further, Warner has not purposefully established minimum contacts in New York as required by the Court in Asahi (cited above). Lastly, exercising personal jurisdiction over Warner would offend traditional notions of fair play and substantial justice. As such, the exercise of jurisdiction over Warner in New York would be unconstitutional and in violation of the New York Long Arm Statute. Accordingly, as personal jurisdiction over Warner cannot be established in New York, the Plaintiffs have failed to state a claim for which relief can be granted pursuant to C.P.L.R. 3211(a)(7), 3211(a)(8), 301; 302(a)(1); 302(a)(3), and U.S. Const. am of 26

26 Dated: White Plains, New York September 28, 2016 Respectfully submitted, ECKERT SEAMANS CHERIN & MELLOTT, LLC By: Michael J. Burke Michael J. Burke. Esq. 10 Bank Street, Suite 700 White Plains, NY Tel. No.: Attorneys for Defendants Warner Electric Europe SAS of 26