Daniel B. Katz & Assocs. Corp. v. Midland Rushmore, LLC

• Decision Date: 27 December 2011
• Citation: 937 N.Y.S.2d 236,90 A.D.3d 977,2011 N.Y. Slip Op. 09584
• Parties: DANIEL B. KATZ & ASSOCIATES CORP., etc., appellant, v. MIDLAND RUSHMORE, LLC, et al., respondents.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09584
90 A.D.3d 977
937 N.Y.S.2d 236

DANIEL B. KATZ & ASSOCIATES CORP., etc., appellant,
v.
MIDLAND RUSHMORE, LLC, et al., respondents.

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

Dec. 27, 2011.

[937 N.Y.S.2d 238]

Feder Kaszovitz, LLP, New York, N.Y. (Murray L. Skala and David Sack of counsel), for appellant.

Halperin Battaglia Raicht, LLP, New York, N.Y. (Neal W. Cohen and Frost Brown Todd LLC [Neil Desai], of counsel), for respondents.

MARK C. DILLON, J.P., ANITA R. FLORIO, CHERYL E. CHAMBERS, and ROBERT J. MILLER, JJ.

In an action, inter alia, to recover damages for breach of contract, tortious interference with contractual relations, and tortious interference with business relationships, the plaintiff appeals from an order of the Supreme Court, Rockland County (Kelly, J.), dated September 24, 2010, which granted the defendants' motion pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.

ORDERED that the order is affirmed, with costs.

The plaintiff, Daniel B. Katz & Associates Corp., doing business as Katz & Associates, is a real estate broker licensed in New York and other states which conducts a national brokerage and marketing business. The complaint alleged that the defendants Midland Rushmore, LLC, and Midland Burnsville, LLC, were Ohio corporations with their principal places of business in South Dakota and Ohio, respectively, and that the individual defendant, John Silverman, was a resident of Ohio.

The plaintiff commenced this action to recover fees allegedly earned in connection with the procurement of tenants for shopping centers located in Minnesota and South Dakota. The plaintiff also alleged, among other things, that the individual defendant tortiously interfered with the plaintiff's contract, existing business relationships, and prospective business relationships when it made false statements in connection with one of these projects.

The defendants moved pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction. The plaintiff opposed the motion, submitting evidence that the defendants made phone calls and sent e-mails to its offices in Illinois and New York concerning the shopping centers at issue. The plaintiff also asserted that it had represented the defendants at an industry trade show in New York. The Supreme Court granted the defendants' motion. We affirm.

“While the ultimate burden of proof rests with the party asserting jurisdiction ..., the plaintiff[ ], in opposition to a motion to dismiss pursuant to CPLR 3211(a)(8), need only make a prima facie showing that the defendant[s] w[ere] subject to the personal jurisdiction of the Supreme Court” ( Cornely v. Dynamic HVAC Supply, LLC, 44 A.D.3d 986, 986, 845 N.Y.S.2d 797 [citation omitted]; see Lang v. Wycoff Hgts. Med. Ctr., 55 A.D.3d 793, 794, 866 N.Y.S.2d 313; Alden Personnel, Inc. v. David, 38 A.D.3d 697, 698, 833 N.Y.S.2d 136). When opposing a motion to dismiss a complaint pursuant to CPLR 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiffs need not make a prima facie showing of jurisdiction, but instead “need only demonstrate that facts ‘may exist’ to exercise personal jurisdiction over

[937 N.Y.S.2d 239]

the defendant” ( Ying Jun Chen v. Lei Shi, 19 A.D.3d 407, 407–408, 796 N.Y.S.2d...