Gottlieb v. Merrigan

• Decision Date: 07 March 2019
• Docket Number: 526945
• Parties: Scott C. GOTTLIEB, Appellant, v. James M. MERRIGAN, Individually and Doing Business as Rawson, Merrigan & Litner, LLP, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 1316
94 N.Y.S.3d 732

Scott C. GOTTLIEB, Appellant,
v.
James M. MERRIGAN, Individually and Doing Business as Rawson, Merrigan & Litner, LLP, et al., Respondents.

526945

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

Calendar Date: January 15, 2019
Decided and Entered: March 7, 2019

94 N.Y.S.3d 733

The Crossmore Law Office, Ithaca (Edward Y. Crossmore of counsel), for appellant.

Aswad & Ingraham, Binghamton (Mary E. Saitta of counsel), for respondents.

Before: Egan Jr., J.P., Lynch, Devine, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from an order of the Supreme Court (Tait, J.), entered August 15, 2017 in Broome County, which granted defendants' motion for summary judgment dismissing the complaint.

94 N.Y.S.3d 734

The facts of this case are more fully set forth in our prior decision ( 119 A.D.3d 1054, 990 N.Y.S.2d 109 [2014] ). Briefly, in 2007, the client, a resident of New York, retained plaintiff, an attorney licensed in New York, to represent him in a personal injury action that occurred in Massachusetts during the client's scope of employment for a New York corporation. Subsequently, the client discharged plaintiff and hired defendant James M. Merrigan and his law firm, defendant Rawson, Merrigan & Litner, LLP — a resident of Massachusetts and a Massachusetts limited liability partnership, respectively – to represent the client in the underlying personal injury action. Ultimately, the client's action was settled for $800,000, and plaintiff thereafter commenced this action against defendants to recover a contingency fee of $66,788.39 for representation of the client prior to defendants taking over the case.¹ Defendants moved to dismiss the complaint for lack of personal jurisdiction, which Supreme Court granted. In July 2014, we reversed and remitted the matter to Supreme Court because plaintiff demonstrated, for purposes of obtaining further discovery, that additional facts establishing personal jurisdiction may exist ( id. at 1056–1057, 990 N.Y.S.2d 109 ). Following discovery and the filing of a note of issue, defendants moved for summary judgment dismissing the complaint for lack of personal jurisdiction. Supreme Court granted the motion, and plaintiff appeals. We affirm.

Pursuant to CPLR 302(a)(1), "a court may exercise personal jurisdiction over any non-domiciliary ... who in person or through an agent ... transacts any business within the state or contracts anywhere to supply ... services in the state." A plaintiff bears the ultimate burden of proof as the party seeking to assert personal jurisdiction (see Urfirer v. SB Bldrs., LLC, 95 A.D.3d 1616, 1618, 946 N.Y.S.2d 266 [2012] ; Andrew Greenberg, Inc. v. Sirtech Can., Ltd., 79 A.D.3d 1419, 1420, 913 N.Y.S.2d 808 [2010] ). In determining whether jurisdiction exists, the court must conduct a twofold inquiry. "First, the defendant must have purposefully availed itself of the privilege of conducting activities within the forum [s]tate by either transacting business in New York or contracting to supply ... services in New York" and "[s]econd the claim must arise from that business transaction or from the contract to supply ... services" ( D & R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro, 29 N.Y.3d 292, 297, 56 N.Y.S.3d 488, 78 N.E.3d 1172 [2017] [internal quotation marks and citation omitted]; see Rushaid v. Pictet & Cie, 28 N.Y.3d 316, 323, 45 N.Y.S.3d 276, 68 N.E.3d 1 [2016] ). The defendant's activities are purposeful if the defendant avails itself of the privilege of conducting activities within New York and invokes the benefits and protections of its laws (see Paterno v. Laser Spine Inst., 24 N.Y.3d 370, 377, 998 N.Y.S.2d 720, 23 N.E.3d 988 [2014] ; Gottlieb v. Merrigan, 119 A.D.3d at 1056, 990 N.Y.S.2d 109 ; Benifits by Design Corp. v. Contractor Mgt. Servs., LLC, 75 A.D.3d 826, 829, 905 N.Y.S.2d 340 [2010] ). Whether the activities are purposeful is an objective inquiry that "requires a court to closely examine the defendant's contacts for their quality" ( Licci v. Lebanese Can. Bank, SAL, 20 N.Y.3d 327, 338, 960 N.Y.S.2d 695, 984 N.E.2d 893 [2012] ; see Stardust Dance Prods., Ltd. v. Cruise Groups Intl., Inc., 63 A.D.3d 1262, 1264, 881 N.Y.S.2d 192 [2009] ).

Plaintiff contends that several of defendants' activities amount to the transaction

94 N.Y.S.3d 735

of business within New York. We disagree. First, there is no...