Miller v. Surf Properties, Inc.
| Decision Date | 25 June 1958 |
| Citation | 151 N.E.2d 874,4 N.Y.2d 475,176 N.Y.S.2d 318 |
| Parties | , 151 N.E.2d 874 Annabelle MILLER, Respondent, v. SURF PROPERTIES, INC., Doing Business as Belmar Hotel of Miami Beach, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
William F. Laffan, Jr., New York City, for appellant appearing specially.
David M. Kahn and Harold M. Miller, White Plains, for respondent.
Plaintiff has attempted to commence an action in New York State against a Florida corporation by the service of a summons in New York City on one Abraham Plotsker, who is a member of a partnership doing business in New York City as Broadway Resort Service. Defendant, Surf Properties, Inc., operates under the name of Belmar Hotel of Miami Beach. Appearing specially, defendant moved to vacate this service of process. On stipulation the application was referred to an Official Referee to try and determine. An order was entered on the Official Referee's report denying defendant's motion, which was affirmed by the Appellate Division, Second Department, Nolan, P. J., and Beldock, J., dissenting and voting to reverse the order and to grant the motion vacating the service of the summons in the following memorandum: 'On the facts here presented, appellant's activities within this State do not constitute the doing of business here.' Leave to appeal was granted by the Appellate Division and the following question certified: 'Was the order of the Special Term properly made?'
The only witness who testified for either side was Abraham Plotsker. Whether defendant is doing business in New York State depends upon his testimony, the substance of which is as follows:
Abraham Cohen and Plotsker conducted a partnership 'in the travel agency and hotel representation business' under the name of Broadway Resort Service. They have been engaged in this business for about 10 years. Through their office at 1650 Broadway they represent between 40 and 50 hotels, of which 25 or 30 are at Miami Beach, in Florida. Among these hotels is defendant, known as Belmar. Broadway has 25 telephones, and the hotels which they represent (including Belmar) have telephone listings in the New York City directory under these telephone numbers. From 8 to 10 hotels are listed under the same number. When anyone calls such a number, Broadway answers. If, for example, the person calling inquires, 'Is this the New York office of the Belmar Hotel', the clerk at Broadway answers 'Yes'. Broadway sends out literature supplied by its hotels to people who ask for it on the telephone. Neither defendant nor any of the hotels maintain office space in Broadway's office, nor do they have employees in common. Broadway does not pay for defendant's advertisements in The New York Times or other newspapers, nor does Broadway place these ads. When a customer of Belmar telephones Broadway, Plotsker testified 'we are willing to answer any equestion that the party at the other end of the line may want to know. Generally speaking, they want to know what are the prices, and they want literature to be sent, which we will send out to the prospective guest. If they're interested in making a reservation, we will talk to them about the reservation, and we will accept the same, provided they sent us a deposit. No reservation will be taken simply on a mere telephone call.
'Generally speaking, we are notified by the hotel as to the extent of availability of space. Unless we hear from the hotel to the contrary, that they have no space, or that we have to be careful, space is tight, we will simply tell the people on the phone, reservations are available.
'We take down the name and the address, telephone number, date when they plan to go to Miami, how long do they plan to stay. We will argue out with them the type of accommodation that they want, whether they want a ten-dollar room or fifteen-dollar room, or whatever it is. And, at the end, well, we tell them, 'Well, you send us a deposit and you will receive a receipt and a confirmation of the reservation.'
Once there was a written agreement between Broadway and Belmar, but now they operate under oral agreement. The substance of this agreement is that Broadway gives Belmar one of Broadway's telephone numbers for Belmar to insert in their advertisements in New York City, and Broadway gives information in answer to inquires concerning availability of space and the making of deposits for confirmation, and records the names and addresses of people who call which are submitted to Belmar. At the year end Belmar receives a list of all the reservations that have been transmitted through the office of Broadway. For doing these things, Broadway receives $750 a year from Belmar, and occasionally also a bonus. There is no agreement about payment of a bonus. The stationery of Broadway bears no indication of any connection with Belmar. No bills of Belmar are paid by Broadway, nor does Broadway cash checks that are made for reservations at Belmar. Although Belmar...
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