GS Plasticos Limitada v. Bureau Veritas

• Decision Date: 20 January 2011
• Citation: 80 A.D.3d 511,915 N.Y.S.2d 68
• Parties: GS PLASTICOS LIMITADA, Plaintiff-Respondent, v. BUREAU VERITAS, Defendant-Appellant, Bureau Veritas Consumer Products Services, Inc., Defendant.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 68

80 A.D.3d 511

GS PLASTICOS LIMITADA, Plaintiff-Respondent,

v. BUREAU VERITAS, Defendant-Appellant,Bureau Veritas Consumer Products Services, Inc., Defendant.

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

Jan. 20, 2011.

Hughes Hubbard & Reed LLP, New York (Daniel H. Weiner of counsel), for appellant.

Abduljaami, PLLC, New York (Saboor H. Abduljaami of counsel), for respondent.

TOM, J.P., MAZZARELLI, FRIEDMAN, RENWICK, DeGRASSE, JJ.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered on or about April 16, 2010, which denied defendant Bureau Veritas's motion to dismiss the complaint as against it for lack of personal jurisdiction and for lack of jurisdiction pursuant to Business Corporation Law section 1314(b), unanimously reversed, on the law, with costs, and the motion granted for lack of jurisdiction pursuant to Business Corporation Law section 1314 (b). The Clerk is directed to enter judgment dismissing the complaint as against Bureau Veritas.

In this action for tortious interference with contractual relations, plaintiff, a Brazilian company authorized to do business in New York, alleges that it lost a contract with a third party due to the issuance by defendant Bureau Veritas Consumer Products Services (BVCPS) of reports falsely concluding that plaintiff's products contained excessive amounts of arsenic. BVCPS, an indirect subsidiary of defendant Bureau Veritas (BV), provides testing and inspection services for consumer products, with testing facilities located in Buffalo, New York. BV is a French company that relinquished its authority to do business in New York before the commencement of this action.

As the motion court found, BV's surrender of its authority to do business in New York does not insulate it from the court's assertion of personal jurisdiction over it, because the liability in this case was "incurred by [BV] within this state before the filing of the certificate of surrender" (Business Corporation Law [BCL] § 1310[a][5]; see Antonana v. Ore S.S. Corp., 144 F.Supp. 486, 491 [S.D.N.Y.1956]; Munn v. Security Controls, 23 A.D.2d 813, 258 N.Y.S.2d 475 [1965] ). Contrary to BV's argument, neither the language of the statute nor the case law limits relief to New York residents ( see Carlton Props. v. 328 Props., 208 Misc. 776, 778-779, 143 N.Y.S.2d 140 [1955];Antonana, 144 F.Supp. at 491; Green v. Clark, 173 F.Supp. 233, 236-237 [S.D.N.Y.1959] ).

However, the court erred in finding that it had jurisdiction pursuant to BCL § 1314(b)(3), based on the tortious conduct's having arisen out of the testing services performed in New York. For purposes of BCL § 1314(b)(3), the inquiry is not where the tortious conduct occurred but "[w]here the cause of action arose" ( see id.; see also Gonzalez v. Industrial Bank [of Cuba], 12 N.Y.2d 33, 234 N.Y.S.2d 210, 186 N.E.2d 410 [1962]; Hibernia Natl. Bank v....