Andrew Greenberg, Inc. v. Sirtech Canada, Ltd.

• Court: New York Supreme Court Appellate Division
• Writing for the Court: MERCURE
• Citation: 79 A.D.3d 1419,913 N.Y.S.2d 808
• Parties: ANDREW GREENBERG, INC., Respondent, v. SIRTECH CANADA, LTD., et al., Defendants, and Frederick Sirotek, Appellant.
• Decision Date: 16 December 2010

913 N.Y.S.2d 808
79 A.D.3d 1419

ANDREW GREENBERG, INC., Respondent,
v.
SIRTECH CANADA, LTD., et al., Defendants,
and
Frederick Sirotek, Appellant.

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

Dec. 16, 2010.

913 N.Y.S.2d 809

Leclair, Korona, Girodano & Cole, Rochester (Paul L. Leclair of counsel), for appellant.

Weiss & Associates, P.C., New York City (Matthew J. Weiss of counsel), for respondent.

Before: CARDONA, P.J., MERCURE, LAHTINEN, STEIN and GARRY, JJ.

MERCURE, J.

79 A.D.3d 1419

Appeal from an order of the Supreme Court (Ledina, J.), entered January 21, 2010 in Sullivan County, which denied defendant Frederick Sirotek's motion for summary judgment dismissing the complaint against him.

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The underlying facts are more fully set forth in the various prior decisions of this Court and the Court of Appeals in these two consolidated actions for breach of contract, an accounting, trade secret misappropriation and tortious interference ( see Andrew Greenberg, Inc. v. Svane, Inc., 36 A.D.3d 1094, 830 N.Y.S.2d 358 [2007]; Andrew Greenberg, Inc. v. Sir-Tech Software, 2 A.D.3d 1042, 768 N.Y.S.2d 420 [2003], revd. 4 N.Y.3d 185, 791 N.Y.S.2d 504, 824 N.E.2d 944 [2005]; Andrew Greenberg, Inc. v. Sir-Tech Software, 297 A.D.2d 834, 746 N.Y.S.2d 736 [2002]; Andrew Greenberg, Inc. v. Sir-Tech Software, 245 A.D.2d 1004, 667 N.Y.S.2d 83 [1997] ). This appeal involves the denial of a motion by defendant Frederick Sirotek (hereinafter Sirotek) for summary judgment dismissing the sole remaining claim against him-sounding in trade secret misappropriation-on the ground that Supreme Court lacks personal jurisdiction over him.

As relevant here, plaintiff entered into a 1981 agreement with Sir-Tech Software, Inc. granting Sir-Tech the exclusive right to manufacture and market a computer game created by plaintiff and known as "Wizardry." The agreement, which was signed by

79 A.D.3d 1420

Sirotek as president of Sir-Tech, also prohibited the disclosure of any Wizardry product information without plaintiff's consent. Plaintiff commenced the first of these actions in 1992, after Sir-Tech ceased paying it royalties under the agreement, and subsequently added two Canadian successor corporations as defendants after discovering that Sir-Tech had transferred its assets to those corporations in 1998. In 2001, plaintiff commenced the second of these actions against the principals and officers of the corporate defendants-namely, Sirotek and his two sons, defendants Robert Sirotek and Norman Sirotek-alleging that they had disclosed trade secrets to the Canadian successor corporations.

Following joinder of issue, Sirotek's original 2003 motion to dismiss the complaint against him for lack of personal jurisdiction was continued by Supreme Court, pending additional discovery. Extensive motion practice, discovery and several appeals ensued, resulting in a decision by the Court of Appeals holding that the motion of the Canadian corporate defendants to dismiss for lack of personal jurisdiction must be denied under CPLR 302(a)(1) ( Andrew Greenberg, Inc. v. Sir-Tech Software, 4 N.Y.3d at 191, 791 N.Y.S.2d 504, 824 N.E.2d 944). In addition, this Court rejected the individual defendants' assertion that plaintiff's claim for trade secret misappropriation was either settled and released pursuant to a settlement agreement entered in the chapter 11 bankruptcy proceeding of Sir-Tech, or barred by the statute of limitations ( Andrew Greenberg, Inc. v. Svane, Inc., 36 A.D.3d at 1096-1098, 830 N.Y.S.2d 358). In 2009, Sirotek, who lives in Canada, sought summary judgment dismissing the remaining trade secret misappropriation claim on the ground that Supreme Court lacks personal jurisdiction over him. Supreme Court denied the motion, prompting this appeal.

We affirm. In determining whether the New York courts have personal jurisdiction over a non-domiciliary, such as Sirotek, a two-part analysis must be employed. First, it must be "determine[d] whether our long-arm statute (CPLR 302) confers jurisdiction over [him] in light of [his] contacts with this State" ( LaMarca v. Pak-Mor Mfg. Co., 95 N.Y.2d 210, 214, 713 N.Y.S.2d 304, 735 N.E.2d 883 [2000] ). If so, it must then be "determine [d] whether the exercise of jurisdiction comports with due process" ( id. at 214, 713 N.Y.S.2d 304, 735 N.E.2d 883). We are mindful that CPLR 302 " 'does not

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confer jurisdiction in every case where it is constitutionally permissible' " ( Ehrenfeld v. Bin Mahfouz, 9 N.Y.3d 501, 512, 851 N.Y.S.2d 381, 881 N.E.2d 830 [2007], quoting Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 471, 527 N.Y.S.2d 195...