Jiang v. Z & D Tour, Inc.
| Decision Date | 22 April 2022 |
| Docket Number | Index 152331/2021 |
| Citation | 2022 NY Slip Op 22122 |
| Court | New York Supreme Court |
| Parties | Minxiu Jiang, Plaintiff, v. Z & D Tour, Inc., FED EX GROUND PACKAGE SYSTEM, INC., PENSKE TRUCK LEASING CORPORATION and UNITED PARCEL SERVICE, INC., Defendants. |
Counsel for the Plaintiff: Andrew W. Padover, Esq. Krause & Glassmith, LLP
Counsel for Defendant, Z & D Tour, Inc.: Francis James Leddy, Esq. Cipriani & Werner, P.C.
Counsel for Defendant, FedEx Ground Package System, Inc. Christopher Smith Del Bove, Esq. CALLAHAN & FUSCO, L.L.C.
Counsel for Defendant, Penske Truck Leasing Corporation David Scott Kritzer, Esq. DAVID S. KRITZER & ASSOCIATES
Counsel for Defendant United Parcel Service, Inc. David Scott Kritzer, Esq. DAVID S. KRITZER & ASSOCIATES
This is a combined Decision and Order on Motion Sequences #001, #002, #003, and #004. The following papers, numbered by the NYSCEF system, to wit: 10-79 were read and considered, respectively, on Defendant's motions to dismiss Plaintiff's complaint, pursuant to CPLR § 3211 [a] [8], and it is hereby:
ORDERED, that Motion Sequence #001 is GRANTED, and Plaintiff's complaint as to Defendant FED EX GROUND PACKAGE is dismissed with prejudice, and it is further, ORDERED, that Motion Sequence #002 is GRANTED, and Plaintiff's complaint as to Defendant UNITED PARCEL SERVICE, INC., is dismissed with prejudice, and it is further, ORDERED, that Motion Sequence #003 is DENIED, without prejudice to renew, and it is further, ORDERED, that Motion Sequence #004 is GRANTED, and Plaintiff's complaint as to Defendant PENSKE TRUCK LEASING CORPORATION is dismissed with prejudice, and it is further, ORDERED, that the Clerk of the Court shall enter judgment accordingly, and it is further, ORDERED, that counsel shall serve a copy of this Order with Notice of Entry within twenty (20) days of entry, upon all parties.
Oral argument was heard by the court on motion sequences #001, #002, and #003 on April 4, 2022. Motion sequence #004, was filed on April 7, 2022, and plaintiff and defendant Penske Truck Leasing Corporation requested that the court render its decision on Motion Sequence #004 on submission alone, as the arguments for and against the motion were made on the record, sounding in similarity with motion sequence #002.
This case arises from a multi-vehicle accident that occurred on January 5, 2020, in the State of Pennsylvania. Plaintiff was a passenger on a bus operated by Defendant Z & D Tour, Inc. ("Z & D"), that was travelling on the Pennsylvania Turnpike/Interstate 70 in Mount Pleasant Township, Pennsylvania. The bus driver lost control of the bus, causing it to roll onto its side and come to a rest, blocking all lanes of westbound travel as well as the shoulder of the Pennsylvania Turnpike. As a result of the bus laying on its side, blocking all lanes of travel, as well as the shoulder, a tractor trailer owned by Defendant FedEx Ground Package System, Inc. ("Fed Ex Ground"), collided with the bus. In addition, and subsequent thereto, a tractor trailer owned by Defendant Penske Truck Leasing Corporation ("Penske"), and leased by Defendant United Parcel Service, Inc. ("UPS") struck the rear of the Fed Ex Ground tractor trailer. Plaintiff's complaint alleges that the accident caused her to sustain severe and permanent personal injuries.
Plaintiff filed this action on December 20, 2021, in New York State Supreme Court, County of Richmond, where the Plaintiff resides.
Defendant Z & D is a domestic profit corporation, organized under the laws of the State of New Jersey, with a principal place of business in Rockaway, New Jersey. Z & D has registered, pursuant to BCL §§ 1301 and 1304, with the New York State Secretary of State as an out-of-state corporation authorized to do business in New York. Z & D owns and operates a brick-and-mortar storefront located at 59 Canal Street, New York, New York. Z & D sells tickets for and charters buses, that transport patrons to and from the State of New York and the State of Ohio, from a dedicated intercity bus stop (with authority to post signage and use of the bus stop granted by the New York City Department of Transportation) in front of its office located at 59 Canal Street, New York, New York.
Fed Ex Ground is incorporated under the laws of the State of Delaware, and maintains a principal place of business in Moon Township, Allegheny County, Pennsylvania. The tractor operated by Fed Ex Ground on the date of the accident, did not depart from or travel through the State of New York, and its destination was not New York.
Penske is a Delaware business corporation that maintains a corporate office and principal place of business in Reading, Pennsylvania.
UPS is a foreign corporation organized under the laws of the State of Ohio, with its principal place of business located in Atlanta, Georgia.
A. General Personal Jurisdiction and Specific Jurisdiction
Plaintiff bears the ultimate burden of demonstrating "satisfaction of statutory and due process prerequisites" to the exercise of general personal jurisdiction over defendants (Stewart v Volkswagen of Am, 81 N.Y.2d 203 [1993]; see Archer-Vail v LHV Precast, Inc, 168 A.D.3d 1257 [3d Dept 2019]). However, that burden does not entail making a prima facie showing of personal jurisdiction at this stage of the litigation (see Peterson v Spartan Indus, 33 N.Y.2d 463 [1974]). Rather, for its claims to survive a motion pursuant to CPLR § 3211 [a] [8], Plaintiff need only show that they have made a "sufficient start" at demonstrating jurisdiction to warrant discovery (Gottlieb v Merrigan, 119 A.D.3d 1054 [3d Dept 2014]). This showing may be made "by reference to pleadings, affidavits, and other suitable documentation" (Avilon Auto Group v Leontiev, 168 A.D.3d 78 [1 Dept 2019]).
Under CPLR § 301, "[a] court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore." This section preserves the power of the New York courts to exercise general personal jurisdiction (see Pichardo v Zayas, 122 A.D.3d 699 [2d Dept 2014]). However, any exercise of such jurisdiction over a foreign corporation on the basis of CPLR § 301 must comport with due process requirement[s] (Fernandez v Daimler-Chrysler AG, 143 A.D.3d 765, 766 [2d Dept 2016], appeal dismissed 28 N.Y.3d 1129 [2017], cert denied ___ U.S. ___, 138 S.Ct. 145 [2017]).
Prior to the United States Supreme Court's decision in Daimler AG v Bauman (571 U.S. 117 [2014]), a foreign corporation was amenable to suit in New York under CPLR § 301 if it had engaged in such a continuous and systematic course of doing business here that a finding of its presence in this jurisdiction was warranted (Aybar v Aybar, 169 A.D.3d 137, 143 [2d Dept 2019]). Following Daimler AG, however, "general personal jurisdiction over a foreign corporation exists only if the corporation is essentially 'at home' in the forum state typified by the place of incorporation and principal place of business" (Motorola Credit Corp v Standard Chartered Bank, 24 N.Y.3d 149, 160 [2014]; see Aybar, 169 A.D.3d at 144 [] [ Emphasis added ]; accord: State of New York v Vayu, Inc, 195 A.D.3d 1337, 1338 [3d Dept 2021]).
To determine whether a foreign corporate defendant's affiliations with the state are so continuous and systematic as to render it essentially 'at home', Daimler advised that "the general personal jurisdiction inquiry does not focus solely on the magnitude of the defendant's in-state contacts, but instead calls for an appraisal of a corporation's activities in their entirety, nationwide and worldwide. A corporation that operates in many places can scarcely be deemed at home in all of them (Daimler AG v Bauman, 571 U.S. at 139; see BNSF R Co v Tyrrell, 137 S.Ct. at 1559). The Daimler court suggested that Perkins v Benguet Consol Mining Co, (342 U.S. 437 [1952]) exemplified the "exceptional case" in which a corporate defendant's operations in the forum state were so substantial and of such a nature as to render the corporation "at home" in that state (see Daimler AG v Bauman, 571 U.S. at 129). In Perkins, the defendant was incorporated in the Philippine Islands, where it owned and operated certain mines (342 U.S. at 439). Its operations were completely halted during the Japanese occupation of the Islands in World War II. During that interim, the president of the company, who was also the general manager and principal stockholder, returned to his home in Ohio, where he maintained an office and conducted the corporations' affairs (see id at 447-448). The Supreme Court held that Ohio courts could exercise general jurisdiction over the corporation without offending due process (see id at 448). The Supreme Court later noted that "Ohio was the corporation's principal, if temporary, place of business so that Ohio jurisdiction was proper even over a cause of action unrelated to the activities in the State" (Keeton v Hustler Magazine, Inc, 465 U.S. 770 [1994]).
A New York Court may exercise personal jurisdiction over a nondomiciliary who, either in person or through his or her agent, "transacts any business within the state or contracts anywhere to supply goods or services in the state (Urfirer v SB Bldrs, LLC, 95 A.D.3d 1616, 1617 [2012] quoting CPLR § 302 [a] [1]). In determining whether long-arm jurisdiction has been acquired over a nondomiciliary, the court must undertake a two-part inquiry: "[...
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