Barone v. Bausch & Lomb, Inc., 1055

• Court: New York Supreme Court Appellate Division
• Citation: 191 A.D.3d 1365,141 N.Y.S.3d 808
• Docket Number: 1055,CA 20-00048
• Parties: Joseph BARONE, Plaintiff-Respondent, v. BAUSCH & LOMB, INC., Defendant, Morcher GmbH and FCI Ophthalmics, Inc., Defendants-Appellants.
• Decision Date: 05 February 2021

191 A.D.3d 1365
141 N.Y.S.3d 808

Joseph BARONE, Plaintiff-Respondent,
v.
BAUSCH & LOMB, INC., Defendant,

Morcher GmbH and FCI Ophthalmics, Inc., Defendants-Appellants.

1055
CA 20-00048

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: February 5, 2021

REED SMITH LLP, NEW YORK CITY (OLIVER BEIERSDORF OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

THE SULTZER LAW GROUP, P.C., POUGHKEEPSIE (JEREMY FRANCIS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: SMITH, J.P., CURRAN, TROUTMAN, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motions of defendants Morcher GmbH and FCI Ophthalmics, Inc. are granted and the amended complaint is dismissed against those defendants.

Memorandum: In this products liability action, Morcher GmbH (Morcher) and FCI Ophthalmics, Inc. (FCI) (collectively, defendants) appeal from an order insofar as it denied their respective motions to dismiss the amended complaint against them. We reverse the order insofar as appealed from.

We agree with Morcher that Supreme Court erred in denying its motion. Although the ultimate burden of proof rests with the party asserting jurisdiction, in opposition to a motion to dismiss pursuant to CPLR 3211 (a) (8), the plaintiff need only make a prima facie showing that the defendant is subject to personal jurisdiction (see Aybar v. Goodyear Tire & Rubber Co. , 175 A.D.3d 1373, 1373, 106 N.Y.S.3d 361 [2d Dept. 2019] ; Halas v. Dick's Sporting Goods , 105 A.D.3d 1411, 1412, 964 N.Y.S.2d 808 [4th Dept. 2013] ). "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 N.Y.2d 210, 214, 713 N.Y.S.2d 304, 735 N.E.2d 883 [2000] ). Defendants do not dispute that their relationship with New York falls within the terms of CPLR 302, and thus the only issue before us is whether due process requirements are satisfied. Due process requires that the defendant "have certain minimum contacts with [New York] such that the maintenance of the suit does not offend ‘traditional...