J. E. T. Advertising Associates, Inc. v. Lawn King, Inc.

• Citation: 443 N.Y.S.2d 745,84 A.D.2d 744
• Parties: J. E. T. ADVERTISING ASSOCIATES, INC., Respondent, v. LAWN KING, INC., Appellant.
• Decision Date: 02 November 1981
• Court: New York Supreme Court Appellate Division

Page 745

443 N.Y.S.2d 745

84 A.D.2d 744

J. E. T. ADVERTISING ASSOCIATES, INC., Respondent, v. LAWN KING, INC., Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 2, 1981.

Spizz & Gans, Mineola (Barbara K. Gaba, Mineola, of counsel), for appellant.

Jeffrey I. Klein, New York City, for respondent.

Before LAZER, J. P., and RABIN, COHALAN and BRACKEN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for breach of contract, defendant appeals from an order of the Supreme Court, Nassau County, dated October 7, 1980, which denied its motion to dismiss the complaint for lack of personal jurisdiction.

Order reversed, on the law, with $50 costs and disbursements, and defendant's motion to dismiss is granted.

Defendant, Lawn King, Inc., a New Jersey corporation, is in the business of providing lawn care services through a system of franchised dealerships, including a number of franchises in New York. Plaintiff, J. E. T. Advertising Associates, Inc., commenced this action to recover damages for breach of a contract concerning the creation and placement of advertising to promote Lawn King's services. Special Term upheld jurisdiction over the defendant, relying on defendant's local telephone number.

The presence of a foreign corporation depends on a continuous and systematic course of doing business (see Frummer v. Hilton Hotels Int., 19 N.Y.2d 533, 281 N.Y.S.2d 41, 227 N.E.2d 851). Maintaining a direct telephone line (through a remote forwarding system) to defendant's office in New Jersey, is an insufficient basis to constitute doing business in this State (see Ziperman v. Frontier Hotel of Las Vegas, 50 A.D.2d 581, 374 N.Y.S.2d 697; Carbone v. Fort Erie Jockey Club, 47 A.D.2d 337, 366 N.Y.S.2d 485; Meunier v. Stebo, Inc., 38 A.D.2d 590, 328 N.Y.S.2d 608; Greenberg v. R. S. P. Realty Corp., 22 A.D.2d 690, 253 N.Y.S.2d 344). Furthermore, the activities of individuals operating Lawn King franchises cannot be attributed to the defendant (see Sheldon Estates v. Perkins Pancake House, 48 A.D.2d 936, 369 N.Y.S.2d 806). Nor does the control exercised over the franchisees by the defendant, in terms of supply specifications, etc., warrant a finding that the franchisees are agents or employees of defendant (see, e. g., Delagi v. Volkswagenwerk AG of Wolfsburg, Germany, 29 N.Y.2d 426, 328 N.Y.S.2d 653, 278 N.E.2d 895). In addition, plaintiff's own activities in New York, on behalf of defendant, cannot be relied on to establish the presence of the defendant in this State (see Haar v. Armendaris Corp., 31 N.Y.2d 1040, 342 N.Y.S.2d 70, 294 N.E.2d 855; Glassman v. Hyder, 23 N.Y.2d 354, 296 N.Y.S.2d 783, 244 N.E.2d 259). Hence CPLR 301 cannot serve as a predicate for jurisdiction over the defendant.

Plaintiff also relies on CPLR 302 (subd....