Carvel Corp. v. Ross Distribution, Inc.

• Decision Date: 08 February 1988
• Citation: 137 A.D.2d 578,524 N.Y.S.2d 469
• Parties: CARVEL CORPORATION, Appellant-Respondent, v. ROSS DISTRIBUTION, INC., et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 469

524 N.Y.S.2d 469

137 A.D.2d 578

CARVEL CORPORATION, Appellant-Respondent, v. ROSS DISTRIBUTION, INC., et al., Respondents-Appellants.

Supreme Court, Appellate Division Second Department.

Feb. 8, 1988.

Patrick M. Reilly, Yonkers (Herbert F. Roth, of counsel), for appellant-respondent.

Friedlander, Gaines, Cohen & Rosenberg, New York City (Martin J. Hertz and David O. Marcus, of counsel), for respondents-appellants.

Before BRACKEN, J.P., and KUNZEMAN, SPATT and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Buell, J.), entered August 28, 1986, as granted the defendants' motion to dismiss the action as against the defendant Todd for lack of personal jurisdiction and as against the defendant Ross Distribution, Inc. (hereinafter Ross) on the ground of forum non conveniens, and the defendants cross-appeal, as limited by their notice of appeal and brief, from so much of that order as found that there existed personal jurisdiction over Ross.

ORDERED that the cross appeal is dismissed ( see, Parochial Bus Sys. v. Board of Educ., 60 N.Y.2d 539, 470 N.Y.S.2d 564, 458 N.E.2d 1241); and it is further,

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that the defendants are awarded one bill of costs.

The court properly found that the plaintiff failed to obtain personal jurisdiction over the defendant Todd, as nowhere in his written guarantee did he consent to service on his behalf upon the New York corporation upon whom service was made (cf., Bankers Trust v. Kline, 52 A.D.2d 775, 382 N.Y.S.2d 794). Personal jurisdiction was properly obtained over Ross, however, since, as the court found, it consented to such service by contract ( see, National Equipment Rental, Ltd., v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354).

In any event, the court properly found that long-arm jurisdiction existed in New York as to Ross (see, CPLR 302). Ross's purposeful association with the New York franchise rendered jurisdiction in New York foreseeable. Thus, it does not offend traditional notions of due process and fair play to call upon Ross to come into New York to defend against this cause of action grounded upon the alleged injury it caused to the plaintiffs ( see, Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528; International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95).

While we conclude that the court correctly found that personal jurisdiction existed over the corporate defendant, we further conclude that it was not an improvident exercise of discretion for the court to dismiss the complaint against that defendant on the ground of forum non conveniens (CPLR 327). We note at the outset that despite the plaintiff's contentions to the contrary, the defendants never...