Hodom v. Stearns

• Decision Date: 27 June 1969
• Citation: 32 A.D.2d 234,301 N.Y.S.2d 146
• Court: New York Supreme Court — Appellate Division
• Parties: Ann HODOM, Individually and as the Administrator of the Estate of John Hodom, Deceased, Appellant, v. Robert STEARNS, d/b/a Pacific Research Laboratories International, Respondent.

Page 146

301 N.Y.S.2d 146

32 A.D.2d 234

Ann HODOM, Individually and as the Administrator of the Estate of John Hodom, Deceased, Appellant, v. Robert STEARNS, d/b/a Pacific Research Laboratories

International, Respondent.

Supreme Court, Appellate Division, Fourth Department.

June 27, 1969.

[32 A.D.2d 235] Fred J. O'Donnell, Ilion, for appellant.

Marshall, Bratter, Greene, Allison & Tucker, New York City, for respondent (Irving M. Basloe, Herkimer, of counsel).

Before GOLDMAN, P.J., and WITMER, GABRIELLI, BASTOW and HENRY, JJ.

OPINION

PER CURIAM:

Special Term granted defendant's motion to dismiss the complaint upon a finding that 'The contacts here are insufficient to sustain the jurisdiction' of the court. In so doing the court failed to consider (as have both parties in this court) certain legal principles that lead us to a conclusion contrary to that reached by Special Term.

CPLR 302, so far as here material, provides that 'a court may exercise personal jurisdiction over any non-domiciliary * * * who in person or through an agent: 1. transacts any business within the state * * *.' In A. Millner Company v. Noudar, LDA, 24 A.D.2d 326, 328, 266 N.Y.S.2d 289, 293, it was stated that 'If the plaintiff were an employee of or an agent acting exclusively for the defendant, plaintiff's acts, in and of themselves, performed for the defendant in New York would suffice to establish jurisdiction of the action against the defendant' citing Schneider v. J & C Carpet Co., 23 A.D.2d 103, 258 N.Y.S.2d 717. In Lodge v. Western New York Dance Studios, Inc., 29 A.D.2d 734, 286 N.Y.S.2d 632, this court held that personal jurisdiction had been obtained over the individual defendant, Astaire, upon a finding that Western New York Dance Studios, Inc. was the actual agent of Astaire. It was pointed out that Astaire retained control over the agent with respect to advertising and publicity and derived economic gain from the activities carried on in this State.

Similarly, we find sufficient proof in the record before us to justify a finding that plaintiff's intestate (Hodom) was in substance the agent of defendant. While the contract denominated Hodom to be a licensee of Stearns, other provisions of the writing establish that defendant retained such domination and control over Hodom's activities as to effectively prevent him from being an independent licensee or contractor. Thus, the contract provided ( 17) that 'the prices, terms and conditions of placement' of the units to be sold by Hodom were to be fixed by defendant. Copies of all contracts for sales of units were to be sent to defendant within 48 hours and Stearns could collect any sum due him directly from the customer ( 18). Hodom agreed to pay $200 annually for protection under defendant's master products liability policy ( 18). Stearns prohibited the use of any advertising material (Ex. H) by Hodom unless authorized and approved by defendant. Upon all the proof the...