Karsh v. Karsh

• Citation: 310 N.Y.S.2d 578,62 Misc.2d 783
• Parties: Jack KARSH, Plaintiff, v. Henry KARSH, Defendant.
• Decision Date: 22 April 1970
• Court: United States State Supreme Court (New York)

Page 578

310 N.Y.S.2d 578

62 Misc.2d 783

Jack KARSH, Plaintiff, v. Henry KARSH, Defendant.

Supreme Court, Special Term, Bronx County, Part I.

April 22, 1970.

Louis Lazarus, New York City, for plaintiff.

Laurence D. Kleinman, New York City, for defendant.

WILFRED A. WALTEMADE, Justice.

In this motion by the defendant, pursuant to CPLR 3211(a)(8), to dismiss the complaint for lack of personal jurisdiction, a novel issue in the interpretation of the New York 'law arm' statute, is presented which apparently has never been passed upon by the courts. The defendant is a resident of the State of Massachusetts, where he was served with process. Plaintiff contends that jurisdiction over defendant's person was acquired by reason of alleged tortious acts committed by the defendant in this State and by the transaction of business in this State by the defendant (CPLR 302(a), (1, 2)). The defendant urges that CPLR 302 is not applicable because the claimed tortious acts were perpetrated on persons other than the plaintiff, and that the alleged transactions of business were not had with the plaintiff but with the late father of the parties and the banks in which the father's funds were deposited.

The complaint in this action between brothers is inartfully drawn and is framed in the form of a rambling narrative. Stripped of all unnecessary verbiage, the plaintiff alleges in substance that the defendant, by fraudulent and false representations made to the father of the parties herein, induced their father to transfer all of his bank accounts to the defendant, thereby depriving the plaintiff of his interest in one-half of the father's funds which were on deposit in trust for the plaintiff. The father was induced to transfer his funds to the defendant for the purpose of obtaining admission to a home for the aged as a recipient of charity. Plaintiff alleges that as a further inducement for the transfer of the funds, the defendant falsely represented to their father that the moneys would be returned upon the father's request and that, in the event of the father's death, the funds would be divided equally between the plaintiff and the defendant, with the exception of two $1,000 trust funds for two grandchildren (plaintiff's two daughters), all in accordance with the terms and provisions of the father's Last Will and Testament executed many years prior to the events alleged in the complaint. The complaint also alleges that after the death of the father, the defendant converted the funds to his own use and further alleges that one-half of the funds obtained by the defendant are held in trust for the plaintiff.

CPLR 302, subdivision a (1, 2), vests the courts of this State with personal jurisdiction over any non-domiciliary who in person either transacts business within the State, or commits a tortious act within the State, relative to any cause of action arising from such transaction of business or tortious act.

The defect in defendant's contention arises, not only from his failure to comprehend the nature of plaintiff's cause of action, but also his misunderstanding of the provisions of CPLR 302. Defendant improperly assumes that the plaintiff's action is predicated solely on the fraudulent representations made to the private social agency that the father was indigent. The false statements made to the social agency were but one...