Culp & Evans v. White
| Decision Date | 13 January 1981 |
| Citation | 435 N.Y.S.2d 248,106 Misc.2d 755 |
| Parties | CULP & EVANS, a Partnership, and William A. Evans, Plaintiffs, v. Clyde C. WHITE and Leo M. Proctor Construction Co., Inc., Defendants. |
| Court | New York Supreme Court |
Defendant, CLYDE C. WHITE, by Notice of Motion seeks an Order pursuant to CPLR 3211(a)(8) and 302(a)(1) dismissing the Complaint herein.
This motion was previously denied by this Court, without prejudice to renew after the taking of Defendant WHITE'S deposition. That deposition has now been furnished to the Court upon the renewal of this motion.
Plaintiffs, CULP & EVANS, and WILLIAM A. EVANS, instituted suit in March of 1979 to enforce certain personal guarantees executed by Defendant WHITE on July 24, 1978. These guarantees were to secure the performance of various construction contracts entered into by Defendant, LEO M. PROCTOR CONSTRUCTION CO., INC. (PROCTOR), to build four PIZZA HUT Restaurants within New York State.
The submitted affidavits and deposition established, however, that these guarantees were hand delivered by Juanita Proctor, the Defendant WHITE'S daughter, to him in Midland, Texas where they were signed and returned to her for delivery to the Plaintiffs. Excepting these guarantees, which were given without apparent consideration, the Defendant WHITE has no other contact with the State of New York.
Furthermore, this Court cannot conclude, upon the facts presented and as urged by Plaintiffs, that either Juanita Proctor or Defendant PROCTOR were acting within New York as agents of Defendant WHITE.
If, therefore, this Court were to apply the Court's decision in Ferrante Equipment Co. v. Lasher-Goldman Corp., 26 N.Y.2d 280, 309 N.Y.S.2d 913, 258 N.E.2d 202 (1970), the Defendant's motion would be well founded as Defendant WHITE, upon the mere execution of a guarantee outside New York State to secure performance within the State, could not be deemed to have transacted business within this State so as to place himself within the reach of the longarm provisions of CPLR 302(a)(1).
However, we are compelled to recognize the September 1, 1979 amendment to CPLR 302(a)(1) which extended personal jurisdiction over a non-domiciliary to include any person who "contracts anywhere to supply goods or services in the state".
Under the terms of the guarantee and as recognized by Defendant WHITE in his deposition, as guarantor Defendant was obliged to complete performance of the construction contracts...
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...of an obligation that was to be performed in New York. One of the first cases to consider the question is Culp & Evans v. White, 106 Misc.2d 755, 435 N.Y.S.2d 248 [Sup. Ct. Erie County 1981]. The court determined that Ferrante is limited to the portion of the statute that permits long arm j......
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