Abkco Music, Inc. v. McMahon
Decision Date | 24 September 2019 |
Docket Number | 9884,Index 656243/16 |
Citation | 175 A.D.3d 1201,109 N.Y.S.3d 264 |
Parties | ABKCO MUSIC, INC., Plaintiff–Respondent, v. Carl G. MCMAHON, AS TRUSTEE OF the ANDREA MARLESS COOKE FAMILY TRUST, Defendant–Appellant, Andrea M. Cooke, Defendant. |
Court | New York Supreme Court — Appellate Division |
Rivkin Radler LLP, Uniondale (Avigael Fyman of counsel), for appellant.
Michael B. Kramer & Associates, New York (Michael B. Kramer of counsel), for respondent.
Sweeny, J.P., Richter, Kapnick, Kern, Singh, JJ.
Order, Supreme Court, New York County (Robert R. Reed, J.), entered December 6, 2017, which denied defendant trustee's motion for summary judgment dismissing the complaint as against him for lack of personal jurisdiction, unanimously reversed, on the law, with costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
The trustee's requests from Ohio, by letter, telephone, and/or email, to plaintiff in New York to send him monies due under the royalty agreement that plaintiff had entered into in 1986 with nonparty Denise Somerville, a/k/a Denise Somerville Cooke (Somerville)—which would merely continue plaintiff's previous practice of sending royalties to Somerville in Ohio—do not constitute the transaction of business under CPLR 302(a)(1) ( ).
Plaintiff cites no authority for imputing Somerville's act of negotiating the contract in 1986 to the trustee, who did not become the trustee until 2009. Even if Somerville's conduct were attributed to the trustee, negotiating a contract from outside New York "is insufficient to constitute the transaction of business in New York" ( Kennedy v. Yousaf, 127 A.D.3d 519, 520, 5 N.Y.S.3d 725 [1st Dept. 2015] ; see also SunLight Gen. Capital LLC v. CJS Invs. Inc., 114 A.D.3d 521, 522, 981 N.Y.S.2d 390 [1st Dept. 2014] ; Libra Global Tech. Servs. [UK] v. Telemedia Intl., 279 A.D.2d 326, 327, 719 N.Y.S.2d 53 [1st Dept. 2001] ).
The fact that the contract chooses New York law does not "constitute a voluntary submission to personal jurisdiction in New York" ( First Natl. Bank & Trust Co. v. Wilson, 171 A.D.2d 616, 619, 567 N.Y.S.2d 468 [1st Dept. 1991] ; see also Aero–Bocker Knitting Mills v. Allied Fabrics Corp., 54 A.D.2d 647, 648, 387 N.Y.S.2d 635 [1st Dept. 1976] ). As the motion court recognized when granting former defendant Andrea M. Cooke's motion to dismiss the claims against her pursuant to CPLR 3211(a)(8), plaintiff could have added a New York forum selection clause when it prepared the royalty...
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