Itria Ventures LLC v Spire Mgt. Group, Inc NY Slip Op 30194(U) January 30, 2017 Supreme Court, New York County Docket Number: /16 Judge:

Similar documents
Glaze Teriyaki, LLC v MacArthur Props. I, LLC 2018 NY Slip Op 33265(U) December 13, 2018 Supreme Court, New York County Docket Number: /2013

Ventures Trust 2013-I-H-R v Tsimmer 2017 NY Slip Op 30570(U) March 23, 2017 Supreme Court, New York County Docket Number: /15 Judge: Barbara

Hillside Gardens Owners, Inc. v Armstrong Realty Mgt. Corp NY Slip Op 32653(U) October 17, 2018 Supreme Court, New York County Docket Number:

IPFS Corp. v Berrosa Auto Corp NY Slip Op 33254(U) December 11, 2018 Supreme Court, New York County Docket Number: /2018 Judge: Joel M.

At Last Sportswear, Inc. v North Am. Textile, Co., LLC 2016 NY Slip Op 31492(U) August 3, 2016 Supreme Court, New York County Docket Number:

Fidelity & Deposit Co. of Maryland v Boymelgreen 2018 NY Slip Op 33266(U) December 17, 2018 Supreme Court, New York County Docket Number: /2015

Iken-Murphy v Kling 2017 NY Slip Op 31898(U) September 6, 2017 Supreme Court, New York County Docket Number: /15 Judge: Manuel J.

Atlas Union Corp. v 46 E. 82nd St. LLC 2018 NY Slip Op 33394(U) December 26, 2018 Supreme Court, New York County Docket Number: /2017 Judge:

NYCTL 2015-A Trust v 135 W. 13, LLC 2017 NY Slip Op 30907(U) April 25, 2017 Supreme Court, New York County Docket Number: /2016 Judge: Nancy M.

South Seas Holding Corp. v Starvest Group, Inc NY Slip Op 30314(U) February 26, 2015 Supreme Court, Suffolk County Docket Number:

Country-Wide Ins. Co. v Bay Needle Care Acupuncture, P.C NY Slip Op 32138(U) August 30, 2018 Supreme Court, New York County Docket Number:

Head v Emblem Health 2016 NY Slip Op 31887(U) October 4, 2016 Supreme Court, New York County Docket Number: /2014 Judge: Joan B.

Paradigm Credit Corp. v Zimmerman 2013 NY Slip Op 31915(U) July 23, 2013 Sup Ct, NY County Docket Number: /12 Judge: Joan A. Madden Republished

Reyes v Tenrit Studios, Inc NY Slip Op 32364(U) December 11, 2015 Supreme Court, New York County Docket Number: /10 Judge: Barbara Jaffe

Matter of Jones v Madison Ave. LLC 2018 NY Slip Op 32413(U) September 26, 2018 Supreme Court, New York County Docket Number: /15 Judge:

M. Slavin & Sons, LTD v Penny Port, LLC 2013 NY Slip Op 32054(U) August 29, 2013 Supreme Court, New York County Docket Number: /2012 Judge:

Lapsley-Cockett v Metropolitan Tr. Auth NY Slip Op 32550(U) September 29, 2014 Supreme Court, New York County Docket Number: /13 Judge:

Roberts v Dependable Care, LLC 2019 NY Slip Op 30013(U) January 3, 2019 Supreme Court, New York County Docket Number: /2017 Judge: Barbara

Swift Strong, Ltd. v Miachart, LLC 2016 NY Slip Op 31939(U) October 13, 2016 Supreme Court, New York County Docket Number: /11 Judge: Barry

Rothman v RNK Capital, LLC 2015 NY Slip Op 31640(U) August 26, 2015 Supreme Court, New York County Docket Number: /15 Judge: Barbara Jaffe

Deutsche Bank Natl. Trust Co. v Stevens 2016 NY Slip Op 32404(U) December 7, 2016 Supreme Court, New York County Docket Number: /2008 Judge:

Halpern v New York State Catholic Health Plan, Inc NY Slip Op 32269(U) November 1, 2016 Supreme Court, New York County Docket Number:

Carmody v City of New York 2018 NY Slip Op 33201(U) December 12, 2018 Supreme Court, New York County Docket Number: /2016 Judge: Alexander M.

Tillage Commodities Fund, L.P. v SS&C Tech., Inc NY Slip Op 32586(U) December 22, 2016 Supreme Court, New York County Docket Number:

Fan Yu Intl. Holdings, Ltd. v Seduka, LLC 2016 NY Slip Op 31799(U) September 29, 2016 Supreme Court, New York County Docket Number: /2014

LG Funding, LLC v City N. Grill Corp NY Slip Op 33290(U) December 14, 2018 Supreme Court, Nassau County Docket Number: /2017 Judge:

Barbizon (2007) Group Ltd. v Barbizon/63 Condominium 2016 NY Slip Op 31973(U) October 17, 2016 Supreme Court, New York County Docket Number:

Starlite Media LLC v Pope 2014 NY Slip Op 30984(U) April 11, 2014 Supreme Court, New York County Docket Number: /2010 Judge: Eileen Bransten

TS Staffing Servs., Inc. v Porter Capital Corp NY Slip Op 31613(U) August 24, 2016 Supreme Court, New York County Docket Number: /2014

Labeouf v Saide 2014 NY Slip Op 30459(U) February 24, 2014 Sup Ct, NY County Docket Number: /2013 Judge: Eileen Bransten Cases posted with a

Taboola, Inc. v DML News & Entertainment, Inc NY Slip Op 33448(U) December 27, 2018 Supreme Court, New York County Docket Number: /2017

Wallach v Greenhouses Hotel, LLC NY Slip Op 32889(U) November 8, 2018 Supreme Court, New York County Docket Number: /2018 Judge: Arthur

Atria Retirement Props., L.P. v Bradford 2012 NY Slip Op 33460(U) August 22, 2012 Supreme Court, New York County Docket Number: /11 Judge:

Cane v Herman 2013 NY Slip Op 30226(U) January 18, 2013 Sup Ct, New York County Docket Number: /11 Judge: Barbara Jaffe Republished from New

Schon Family Found. v Brinkley Capital Ltd NY Slip Op 33027(U) November 27, 2018 Supreme Court, New York County Docket Number: /2015

Aspen Am. Ins. Co. v Albania Travel & Tour, Inc NY Slip Op 32264(U) November 30, 2015 Supreme Court, New York County Docket Number: /14

Eastern Funding LLC v 843 Second Ave. Symphony, Inc NY Slip Op 31588(U) August 20, 2015 Supreme Court, New York County Docket Number:

Rosenberg v Hedlund 2016 NY Slip Op 30201(U) February 4, 2016 Supreme Court, New York County Docket Number: /2015 Judge: Eileen A.

Nall v Estate of Powell 2012 NY Slip Op 33413(U) March 28, 2012 Sup Ct, New York County Docket Number: /2011 Judge: O. Peter Sherwood Cases

Worth Constr. Co., Inc. v Cassidy Excavating, Inc NY Slip Op 33017(U) January 10, 2014 Sup Ct, Westchester County Docket Number: 61224/2012

Broadway W. Enters., Ltd. v Doral Money, Inc NY Slip Op 32912(U) November 12, 2013 Supreme Court, New York County Docket Number: /2011

Newbank v Parcare Servs. Inc NY Slip Op 30200(U) January 30, 2013 Sup Ct, Queens County Docket Number: 30639/2010 Judge: Robert J.

Chardno Chemrisk, LLC v Foytlin 2014 NY Slip Op 32548(U) September 29, 2014 Supreme Court, New York County Docket Number: Judge: Anil C.

Signature Bank v Atlas Race LLC 2016 NY Slip Op 32366(U) November 28, 2016 Supreme Court, New York County Docket Number: /15 Judge: Kathryn E.

Patapova v Duncan Interiors, Inc NY Slip Op 33013(U) November 27, 2013 Sup Ct, New York County Docket Number: /2010 Judge: Joan A.

Allaire v Mover 2014 NY Slip Op 32507(U) September 29, 2014 Sup Ct, New York County Docket Number: /09 Judge: Marcy S. Friedman Cases posted

Meyers v Amano 2017 NY Slip Op 30858(U) April 17, 2017 Supreme Court, New York County Docket Number: /2010 Judge: Margaret A.

Sherwood Apparel LLC v Active Brands Intl., Inc NY Slip Op 33284(U) January 5, 2012 Supreme Court, New York County Docket Number: /2011

Black Swan Consulting LLC v Featherstone Inv. Group 2015 NY Slip Op 30298(U) March 3, 2015 Supreme Court, New York County Docket Number: /2014

Sarna v City of New York 2011 NY Slip Op 30202(U) January 26, 2011 Sup Ct, New York County Docket Number: /07 Judge: Barbara Jaffe Republished

Fundamental Long Term Care Holdings, LLC v Cammeby's Funding, LLC 2013 NY Slip Op 32113(U) August 30, 2013 Sup Ct, New York County Docket Number:

Audubon Tenants Assoc. v Audubon Realty, LLC 2017 NY Slip Op 31739(U) August 15, 2017 Supreme Court, New York County Docket Number:

Safka Holdings, LLC v 220 W. 57th St. Ltd Partnership 2014 NY Slip Op 31224(U) May 5, 2014 Supreme Court, New York County Docket Number: /2013

JSBarkats PLLC v GoCom Corp. Inc NY Slip Op 32182(U) October 26, 2016 Supreme Court, New York County Docket Number: /2015 Judge: Eileen

New Thinking Fashion USA, Inc. v ZG Apparel Group, LLC 2016 NY Slip Op 30524(U) March 29, 2016 Supreme Court, New York County Docket Number:

Jackson v Ocean State Job Lot of NY2011 LLC 2014 NY Slip Op 33468(U) March 19, 2014 Supreme Court, Albany County Docket Number: Judge: Roger

Jin Hai Liu v Forever Beauty Day Spa Inc NY Slip Op 32701(U) October 11, 2018 Supreme Court, New York County Docket Number: /2017 Judge:

Kellman v Whyte 2013 NY Slip Op 32938(U) November 15, 2013 Sup Ct, New York County Docket Number: /11 Judge: Barbara R. Kapnick Cases posted

Zen Restoration, Inc. v Hirsch 2017 NY Slip Op 31737(U) August 14, 2017 Supreme Court, New York County Docket Number: /17 Judge: Lynn R.

Orloff v English 2016 NY Slip Op 31974(U) October 14, 2016 Supreme Court, New York County Docket Number: /15 Judge: Nancy M.

Hanson v 836 Broadway Assoc NY Slip Op 32942(U) November 13, 2018 Supreme Court, New York County Docket Number: /2014 Judge: Robert D.

Beys v MMM Group, LLC 2016 NY Slip Op 30619(U) April 11, 2016 Supreme Court, New York County Docket Number: Judge: George J.

Smith v Ashland, Inc NY Slip Op 32448(U) September 26, 2018 Supreme Court, New York County Docket Number: /2017 Judge: Arlene P.

Canon Fin. Servs., Inc. v Meyers Assoc., LP 2014 NY Slip Op 32519(U) September 26, 2014 Supreme Court, New York County Docket Number: /2013

PH-105 Realty Corp. v Elayaan 2017 NY Slip Op 30952(U) May 3, 2017 Supreme Court, New York County Docket Number: /2016 Judge: Gerald Lebovits

BMG Rights Mgt. (US) LLC v Radar Pictures, Inc NY Slip Op 30290(U) February 10, 2017 Supreme Court, New York County Docket Number: /2016

ABKCO Music & Records, Inc. v Montague 2006 NY Slip Op 30726(U) April 15, 2006 Supreme Court, New York County Docket Number: /05 Judge: Emily

Allied Intl. Fund, Inc. v Gladtke 2016 NY Slip Op 31702(U) August 4, 2016 Supreme Court, New York County Docket Number: /2016 Judge: Shirley

Human Care Servs. for Families & Children, Inc. v Lustig 2015 NY Slip Op 32603(U) March 5, 2015 Supreme Court, Kings County Docket Number: /14

Joseph Gunnar & Co., LLC v Rice 2015 NY Slip Op 30233(U) February 13, 2015 Supreme Court, New York County Docket Number: /2014 Judge: Eileen A.

Rosenberg v Hedlund 2016 NY Slip Op 30191(U) February 3, 2016 Supreme Court, New York County Docket Number: /2015 Judge: Eileen A.

Guaman v American Hope Group 2016 NY Slip Op 30905(U) April 6, 2016 Supreme Court, Queens County Docket Number: /15 Judge: Carmen R.

Ibonic Holdings, LLC. v Vessix, Inc NY Slip Op 33215(U) December 11, 2018 Supreme Court, New York County Docket Number: /2017 Judge:

Principis Capital LLC v B2 Hospitality Servs. LLC 2016 NY Slip Op 31132(U) June 15, 2016 Supreme Court, New York County Docket Number: /2012

Gurevich v JP Morgan Chase 2013 NY Slip Op 33290(U) July 22, 2013 Supreme Court, Richmond County Docket Number: /13 Judge: John A.

Chiffert v Kwiat 2010 NY Slip Op 33821(U) June 4, 2010 Sup Ct, New York County Docket Number: /2010 Judge: O. Peter Sherwood Cases posted with

Lind v Tishman Constr. Corp. of N.Y NY Slip Op 32710(U) October 19, 2018 Supreme Court, New York County Docket Number: /2016 Judge:

Caeser v Harlem USA Stores, Inc NY Slip Op 30722(U) April 18, 2016 Supreme Court, New York County Docket Number: /2013 Judge: Anil C.

Choi v Korowitz 2013 NY Slip Op 33944(U) August 15, 2013 Supreme Court, Queens County Docket Number: /11 Judge: Bernice D. Siegal Cases posted

Vera v Tishman Interiors Corp NY Slip Op 31724(U) September 16, 2016 Supreme Court, New York County Docket Number: /2015 Judge: Robert D.

Reed v Yankowitz 2014 NY Slip Op 32843(U) October 29, 2014 Sup Ct, Kings County Docket Number: /2013 Judge: David I. Schmidt Cases posted with

Vanderbilt Mtge. & Fin., Inc. v Archer 2015 NY Slip Op 31315(U) May 27, 2015 Supreme Court, Queens County Docket Number: 9171/12 Judge: Howard G.

Verdi v Verdi 2013 NY Slip Op 32728(U) October 22, 2013 Supreme Court, Queens County Docket Number: /12 Judge: Howard G. Lane Cases posted with

Water Pro Lawn Sprinklers, Inc. v Mt. Pleasant Agency, Ltd NY Slip Op 32994(U) April 15, 2014 Supreme Court, Westchester County Docket Number:

State Farm Mut. Auto. Ins. Co. v Austin Diagnostic Med., P.C NY Slip Op 30917(U) April 18, 2016 Supreme Court, Queens County Docket Number:

Gonzalez v 80 W. 170 Realty LLC 2018 NY Slip Op 33414(U) November 20, 2018 Supreme Court, Bronx County Docket Number: /2013 Judge: Doris M.

Amerimax Capital, LLC v Ender 2017 NY Slip Op 30263(U) February 10, 2017 Supreme Court, New York County Docket Number: /2015 Judge: Manuel J.

FILED: KINGS COUNTY CLERK 01/04/ :58 PM INDEX NO /2016 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 01/04/2017

Kahlon v Creative Pool and Spa Inc NY Slip Op 30075(U) January 6, 2014 Sup Ct, New York County Docket Number: /12 Judge: Paul Wooten

Flushing Sav. Bank, FSB v Ataraxis Props. Ltd NY Slip Op 31416(U) June 7, 2010 Supreme Court, Suffolk County Docket Number: Judge:

Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co NY Slip Op 33786(U) June 16, 2014 Supreme Court, Nassau County Docket Number:

Fifty E. Forty Second Co., LLC v 21st Century Offs. Inc NY Slip Op 32933(U) November 20, 2018 Supreme Court, New York County Docket Number:

McGraw-Hill Global Educ. Holdings, LLC v NetWork Group, LLC 2019 NY Slip Op 30004(U) January 3, 2019 Supreme Court, New York County Docket Number:

Board of Mgrs. of the 345 Greenwich St. Condominium v 345 Greenwich St., LLC 2011 NY Slip Op 34231(U) January 3, 2011 Supreme Court, New York County

Neiditch v William Penn Life Ins. Co. of N.Y NY Slip Op 32757(U) April 24, 2015 Supreme Court, Nassau County Docket Number: /14 Judge:

Zadar Universal Corp. v Lemonis 2018 NY Slip Op 33125(U) November 26, 2018 Supreme Court, New York County Docket Number: /2018 Judge: Gerald

Construction Specifications Inc. v Gwathmey Siegel Kaufman & Assoc. Architects, LLC 2016 NY Slip Op 31463(U) July 28, 2016 Supreme Court, New York

Rodriguez v Judge 2014 NY Slip Op 30546(U) January 27, 2014 Sup Ct, Queens County Docket Number: /2011 Judge: Denis J. Butler Cases posted with

Pratt v 32 W. 22nd St., LLC 2017 NY Slip Op 31866(U) August 23, 2017 Supreme Court, New York County Docket Number: /2016 Judge: Kathryn E.

Emil LLC v Jacobson 2018 NY Slip Op 32529(U) October 3, 2018 Supreme Court, New York County Docket Number: /2017 Judge: Barry Ostrager Cases

Transcription:

Itria Ventures LLC v Spire Mgt. Group, Inc. 2017 NY Slip Op 30194(U) January 30, 2017 Supreme Court, New York County Docket Number: 152407/16 Judge: Barbara Jaffe 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.

[* FILED: 1] NEW YORK COUNTY CLERK 01/31/2017 11:19 AM INDEX NO. 152407/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : IAS PART 12 ----------------------------------------------------------------------------x ITRIA VENTURES LLC, Index No. 152407/16 Plaintiff, Mot. seq. no. 001 -against- DECISION AND ORDER SPIRE MANAGEMENT GROUP, INC., BHA VIKA KANITAL PATEL, and RUNJAN ASHOK JAIN, Defendants. ----------------------------------------------------------------------------x BARBARA JAFFE, J.: For plaintiff: Edward Weissman, Esq. Law Offices of Edward Weissman 60 E. 42"d St., Ste. 557 New York, NY 10165 212-937-1520 For defendant Patel: Mark S. Pincus, Esq. Pincus Law LLC One Liberty Plaza, 35'h fl. New York, NY 10006 212-962-2900 By notice of motion, defendant Bhavika Kantilal Patel, sued incorrectly as Bhavika Kanital Patel, moves for an order dismissing the complaint against her pursuant to CPLR 321 l(a)(7) for failure to state a claim or, alternatively, CPLR 321 l(a)(8) for lack of personal jurisdiction. Plaintiff opposes. I. THE COMPLAINT As pertinent here, plaintiff alleges in its complaint that Patel, along with her husband, defendant Jain, are the principals and officers of defendant Spire Management Group, Inc. Plaintiff asserts a claim of fraud against all defendants, alleging as follows: (1) Between March 2014 and August 2015, Patel and Jain, who own, operate, and control Spire, solicited and accepted advances from plaintiff totaling $400,000; (2) In order to induce plaintiff to make the advances, Patel and Jain false represented to plaintiffs principal, Ramit Arora, "that the business was in good financial shape because defendant Patel stood behind it and would fund any shortfalls"; 2 of 9

[* FILED: 2] NEW YORK COUNTY CLERK 01/31/2017 11:19 AM INDEX NO. 152407/2016 (3) Plaintiff relied upon financial documents it received from defendants to determine whether to make the advances; (4) Before each advance, defendants assured plaintiff that Patel, "aside from being a medical doctor was the vice president and secretary of Spire Management and shared all responsibilities for its operation jointly" with Jain; (5) Plaintiff relied on defendants' representations and financial documents in deciding to advance funds; (6) The representations made by defendants were false as Patel's "role had been exaggerated," and were designed to induce plaintiff to advance funds; (7) Defendants prepared fraudulent documents to mislead plaintiff as to Spire's financial viability, the reason for the advances, and Patel's role; (8) Defendants intended to deceive plaintiff knowing that plaintiff would reasonably rely on the representations and documents; and (9) But for the false representations, plaintiff would not have advanced funds to defendants. Plaintiff also contends that Spire defaulted on its agreements with plaintiff, causing plaintiff damages in excess of $350,000, and that defendants knew that Spire was struggling financially and purposely withheld the fact that Patel's role with Spire was minimal. It thus seeks compensatory damages, attorney fees, and punitive damages. (NYSCEF 1 ). On June 4, 2015, Jain signed a confession of judgment, permitting plaintiff to enter judgment against him in the amount of $139,000, less any payments made to plaintiff pursuant to a future receivables sale agreement dated June 4, 2015. The confession arose from Jain's failure to repay plaintiff under the June 2015 agreement. (NYSCEF 17). Arora, by affidavit dated June 6, 2016, asserts that Patel contacted him in New York "multiple times" and "on many occasions" between 2014 and 2015 by telephone, text, e-mail, and regular mail to convince him to make advances to Spire, telling him that Spire was 2 3 of 9

[* FILED: 3] NEW YORK COUNTY CLERK 01/31/2017 11:19 AM INDEX NO. 152407/2016 financially sound and that she was directly involved in its operation, knowing that Spire was a failing business. (NYSCEF 14 ). Arora submits documents purporting to evidence Patel's connection to Spire, to wit, Spire's Articles oflncorporation for Georgia Profit Corporation, dated March 7, 2011, which reflects that Patel is Spire's registered agent (NYSCEF 15), a stock certificate, signed March 31, 2011, which reflects that Patel is Spire's secretary (NYSCEF 16), and a future receivables sale agreement between plaintiff and Spire, dated August 19, 2015, which contains a personal guaranty and bears Patel's initials and signature, identifying her as Spire's vice-president. The sale agreement was notarized on August 19, 2015 in Arizona by notary public Tara Wainwright; neither Arora nor plaintiff signed it. (NYSCEF 17). By affidavit dated July 5, 2016, Patel contends that she divorced Jain in June 2016, and that Spire is wholly owned and operated by him. She denies having ever been involved with Spire in any capacity, having served or agreed to serve as its principal, officer, or agent, having seen or signed Spire's articles of incorporation, the 2011 stock certificate, or the sale agreement, and having signed the sale agreement before Wainwright or any notary. Rather, she contends that at all relevant times she was engaged full-time in the practice of medicine in Arizona. Patel also asserts that between 2014 and 2015, she never heard of plaintiff, never interacted with any of its officers or employees, and never communicated with Arora, and that the first time she spoke to him was when he contacted her in February 2016 about defendants' alleged fraud. (NYSCEF 35). In support, Patel submits Spire's Corporation Annual Registration statements filed with the Georgia Secretary of State from 2013 to 2015, all of which reflect that Jain is the only officer of Spire, and its secretary and agent. (NYSCEF 32-34). 3 4 of 9

[* FILED: 4] NEW YORK COUNTY CLERK 01/31/2017 11:19 AM INDEX NO. 152407/2016 Wainwright, in an affidavit dated July 5, 2016, states that she is a notary public in Arizona, and that her notary records reflect that she performed no notarial acts for Patel in August 2015, but that she notarized Jain's signature on a business agreement in August 2015. (NYSCEF 36). II. CONTENTIONS Patel argues that plaintiff does not plead with particularity its claim of fraud against her absent allegations against her individually or a particularized description of the alleged misrepresentations or its alleged reliance on the misrepresentations, and that any promise made by her to guarantee Spire's debts personally is barred by the statute of frauds. She contends that the court lacks personal jurisdiction over her as she never had contact with plaintiff, and that even if she did, the exchange of information through phone, email, mail, or text is insufficient to subject her to the court's long-arm jurisdiction. She also maintains that punitive damages are unavailable on a claim of fraud. (NYSCEF 3). Plaintiff asserts that the fraud claim is sufficiently pleaded, and that its allegations against Patel suffice to establish personal jurisdiction over her as she contacted it in New York and the tortious injury occurred here. In reply, Patel reiterates her arguments. (NYSCEF 30). III. ANALYSIS Jurisdiction is a threshold issue that must be determined before any other defenses asserted in a motion to dismiss. (Howard v Spitalnik, 68 AD2d 803 [1st Dept 1979]). Pursuant to CPLR 3211 (a)(8), a cause of action may be dismissed on the ground that the court lacks personal jurisdiction over the defendant. Pursuant to CPLR 302(a), the court may exercise personal 4 5 of 9

[* FILED: 5] NEW YORK COUNTY CLERK 01/31/2017 11:19 AM INDEX NO. 152407/2016 jurisdiction over a non-domiciliary of New York, who in person or through an agent, as pertinent here, commits a tortious act within the state, or commits a tortious act without the state causing injury to person or property within the state, if the defendant expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce. If jurisdiction is challenged, the plaintiff bears the burden of establishing jurisdiction over the defendant (Arroyo v Mountain School, 68 AD3d 603 [1st Dept 2009]), and must come forward with sufficient evidence, through affidavits and relevant documents, to prove the existence of jurisdiction (Coast to Coast Energy, Inc. v Gasarch, 2017 WL 367482, 2017 NY Slip Op 00532 [1st Dept]). Plaintiff need not demonstrate,primafacie,jurisdiction but only a "sufficient start" showing that its position is not frivolous. (Peterson v Spartan Indus., Inc., 33 NY2d 463 [1974]). An evidentiary hearing may be required if there are material conflicts between the parties' affidavits. (See Stardust Dance Prods., Ltd. v Cruise Groups Intern., Inc., 63 AD3d 1262 [3d Dept 2009] [issue of jurisdiction should not be decided on basis of conflicting affidavits]). Discovery limited to the issue of jurisdiction may also be directed. (Peterson, 33 NY2d at 463). Having denied in her affidavit that she ever spoke to or communicated with plaintiff or Arora between 2014 and 2015, when the alleged fraud allegedly occurred, she thereby denies the basis on which plaintiff alleges jurisdiction and disputes Arora' s claims that he communicated with her often between 2014 and 2015. The parties' affidavits are thus entirely conflicting. Moreover, it is plaintiffs burden to establish jurisdiction through affidavits and documentary evidence (Coast to Coast Energy, Inc., 2017 WL 367482, 2017 NY Slip Op 00532; 5 6 of 9

[* FILED: 6] NEW YORK COUNTY CLERK 01/31/2017 11:19 AM INDEX NO. 152407/2016 cf Cotia [USA} Ltd. v Lynn Steel Corp., 134 AD3d 483 [1st Dept 2015] [plaintiff offered only conclusory allegations to support long-arm jurisdiction]; Sunlight Gen. Cap. LLC v CJS Investments Inc., 114 AD3d 521 [1st Dept 2014] [plaintiff failed to submit tangible evidence to demonstrate long-arm jurisdiction]), and although Arora states that he has copies of e-mails and financial documents tying Patel to the alleged fraud, he asserts only that he will submit the documentation "at the appropriate time." (NYSCEF 14). In Am. BankNote Corp. v Daniele, the Court found that the plaintiffs pleadings, affidavits, and accompanying documents made a "sufficient start" to warrant further discovery on the issue of personal jurisdiction. However, the defendants' denial of the plaintiffs jurisdictional allegations required the trial court to hold the motion to dismiss in abeyance pending a hearing on the jurisdictional issue. (45 AD3d 338 [1st Dept 2007]). Therefore, in light of the parties' conflicting affidavits, the fact that plaintiff submits no evidence of Patel's alleged communications or actions, and as the allegations regarding Patel in plaintiffs complaint and Arora's affidavit are vague and conclusory, a hearing is ordered. (See Stardust Dance Prods., Ltd., 63 AD3d at 1265 [when faced with conflicting affidavits, court should have held hearing to determine nature and extent of defendants' activities before making decision on jurisdictional defense]; Shea v Ham bro Am. Inc., 200 AD2d 371 [1st Dept 1994] [court did not err in ordering reference on issue of lack of jurisdiction as "sharply conflicting affidavits" required hearing]; Krupnick v Danin, 86 AD2d 623 [2d Dept 1982] [as parties submitted opposing affidavits as to basis of jurisdiction, court should not have determined issue on affidavits, as testimony from witnesses was required]; Cato Show Printing Co., Inc. v Lee, 84 AD2d 947 [4th Dept 1981], app dismissed 56 NY593 [1982] [hearing necessary where affidavits 6 7 of 9

[* FILED: 7] NEW YORK COUNTY CLERK 01/31/2017 11:19 AM INDEX NO. 152407/2016 present conflicting facts on significant New York contacts]; see also Peterson, 33 NY2d at 467 [court properly directed hearing before referee on issue of personal jurisdiction, holding motion to dismiss in abeyance, and permitted discovery and inspection within hearing]; Coudert Bros. v Malmrose, 268 AD2d 261 [1st Dept 2000] [court properly dismissed complaint against defendant based on plaintiffs failure to establish at hearing that defendant had transacted business or committed tort within New York]). IV. CONCLUSION Accordingly, it is hereby ORDERED, that defendant Patel's motion to dismiss is held in abeyance, pending a hearing on the issue of whether this court may exercise personal jurisdiction over her; it is further ORDERED, that a Special Referee shall be designated to hear and report to this court on the following individual issue of fact, which is hereby submitted to the Special Referee for such purpose: whether there is a basis for asserting jurisdiction over defendant Patel pursuant to CPLR 302(a)(2) and/or (3); it is further ORDERED, that this matter is hereby referred to the Special Referee Clerk (Room 119M, 646-386-3028 or spref@nycourts.gov) for placement at the earliest possible date upon which the calender of the Special Referee Part (Part SRP), which, in accordance with the Rules of that Part, shall assign this matter to an available Special Referee to hear and report as specified above; it is further ORDERED, that counsel shall immediately consult one another and counsel for plaintiff shall, within 15 days from the date of this order, submit to the Special Referee Clerk by fax (212-401-9186) or email, an information sheet (which can be accessed at the "References" link on the 7 8 of 9

[* FILED: 8] NEW YORK COUNTY CLERK 01/31/2017 11:19 AM INDEX NO. 152407/2016 court's website) containing all the information called for therein and that, as soon as practicable thereafter, the Special Referee Clerk shall advise counsel for the parties of the date fixed for the appearance of the matter upon the calender of the Special Referee Part; and it is further ORDERED, that the parties shall appear for the reference hearing, including with all witnesses and evidence they seek to present, and shall be ready to proceed, on the date first fixed by the Special Referee Clerk subject only to any adjournment that may be authorized by the Special Referee Part in accordance with the Rules of that Part. ENTER: DATED: January 30, 2017 New York, New York 8 9 of 9