Lamarr v. Klein
| Decision Date | 19 November 1970 |
| Citation | 315 N.Y.S.2d 695,35 A.D.2d 248 |
| Parties | Hedy LAMARR, Plaintiff-Respondent, v. Frederick KLEIN, Samuel H. Post, Earl Mills, Cy Rice, Leo Guild, Dr. IrvingTaylor, David Bartell, Lee Bartell, Defendants, and Maurice Inman, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Charles J. Acker, New York City, of counsel (Lester Esterman, New York City, with him on the brief; Hart & Hume, New York City), for defendant-appellant.
Jacob Rassner, New York City, for plaintiff-respondent.
Before STEVENS, P.J., and CAPOZZOLI, McGIVERN, and STEUER, JJ.
The complaint charges that the defendants wilfully conspired to publish and distribute for sale a libelous, false, fictional and derogatory account of plaintiff's life, misrepresenting same as her true autobiography, in a book entitled 'Ecstasy and Me, My Life as a Woman', without her approval and consent.
Defendant, Maurice Inman, a non-resident attorney, was served with process in California. He moves to dismiss the action as against him for lack of in personam jurisdiction. The service was purportedly made pursuant to CPLR 302(a), par. 2, which provides for jurisdiction over a non-domiciliary who 'commits a tortious act within the state * * *'.
An examination of the complaint discloses that it is inartfully drawn, replete with conclusory, repetitious allegations and is in the nature of a rambling narrative. Nowhere within its contents is there any intimation that the defendant, Inman, committed any act in the State of New York in furtherance of the alleged conspiracy. Neither is there any statement as to where the alleged conspiracy was hatched.
The defendant has moved, prior to his answer, to dismiss the complaint under CPLR 3211(a), par. 8, on the ground that the Court has not jurisdiction of the person of the defendant. In the affidavit in support of the motion the defendant denies any knowledge of or complicity in the alleged conspiracy and specifically sets forth that he was never in New York during the time the conspiracy is alleged to have been hatched and that he never performed any act in New York in furtherance or aid of the conspiracy. The exact language of the defendant is as follows:--
'* * * I unequivocally deny ever having been a party to or having knowledge of, any conspiracy or act, intentional or otherwise, designed to deprive plaintiff of any right or harm her in any way. * * *
'It is submitted that I have committed no acts, participated in no activities, tortious or otherwise, within or without the State of New York, which come within the purview of CPLR 302 so as to give this court personal jurisdiction over me.'
The defendant also stated, in this same affidavit, the following:--
'* * * I did nothing in New York, nor does the complaint allege I ever entered New York * * * as a participant in the alleged scheme.'
In the face of these allegations, the plaintiff was duty bound to come forth with definite evidentiary facts to meet the objections of the defendant and to support the propriety of the service made upon him outside of this state. Instead, the only affidavit offered by the plaintiff is one executed by her attorney which was not made on personal knowledge of the underlying evidentiary facts. This affidavit asserts:--
'The aforesaid wrongful acts took place in the City and State of New York. * * *'.
Such statement is conclusory and completely insufficient to establish that the defendant committed a tortious act in this state so as to validate the service made upon him.
The law is clear that, under the circumstances disclosed herein, the burden of proving jurisdiction is upon the party who asserts it. (Unicon Management Corp. v. Koppers Co., Inc. et al., D.C., 250 F.Supp. 850; Saratoga Harness Racing Association, Inc. v. Moss, 26 A.D.2d 486, 275 N.Y.S.2d 888, aff'd 20 N.Y.2d 733, 283 N.Y.S.2d 55, 229 N.E.2d 620.) In Saratoga, etc. v. Moss, supra, at p. 490 of the Appellate Division opinion, at p. 892 of 275 N.Y.S.2d, the Court said:
'* * * The plaintiff has the burden of proof and for the purpose of this motion must show by the complaint and supporting affidavits the essential requirements of the statute. * * *'.
Assuming that the complaint states a cause of action, that fact itself does not determine the issue of jurisdiction. It is true that, whether or not appellant participated in the alleged conspiracy, is an issue in the action which cannot be decided upon an application to vacate service. However, the burden is upon the plaintiff to show compliance with the requirements set forth in the statute so as to validate the service. Clearly, conclusory allegations, such as the one made by the attorney for the plaintiff, must fail in the face of the positive assertions found in the affidavit of the...
To continue reading
Request your trial
-
Clark v. United States, 78 Civ. 2244(MEL).
...385, 391 (S.D.N.Y.1978); Socialist Workers Party v. Attorney General, 375 F.Supp. 318, 322 (S.D.N.Y.1974); Lamarr v. Klein, 35 A.D.2d 248, 315 N.Y.S.2d 695 (1st Dept. 1970), aff'd, 30 N.Y.2d 757, 333 N.Y. S.2d 421, 284 N.E.2d 576 (1972) (per In this case, plaintiffs allege that Gray "develo......
-
In re Terrorist Attacks On September 11, 2001
...jurisdiction for the purposes of section 302(a)(2)." Lehigh Valley Indus. Inc., 527 F.2d at 93-94; Lamarr v. Klein, 35 A.D.2d 248, 315 N.Y.S.2d 695, 697-98 (1st Dep't 1970) (holding that conclusory statements about defendant's role in conspiracy were insufficient to establish jurisdiction u......
-
Small v. Lorillard Tobacco Co., Inc.
...v. Inoue, 111 A.D.2d 686, 490 N.Y.S.2d 506; American Broadcasting v. Hernreich, 40 A.D.2d 800, 338 N.Y.S.2d 146; Lamarr v. Klein, supra, 35 A.D.2d 248, 315 N.Y.S.2d 695, affd. 30 N.Y.2d 757, 333 N.Y.S.2d 421, 284 N.E.2d 576; Reeves v. Phillips, 54 A.D.2d 854, 388 N.Y.S.2d 294; Parke-Bernet ......
-
Louis Marx & Co. v. Fuji Seiko Co., Ltd.
...7 Lehigh Valley Indus. v. Birenbaum, 527 F.2d 87, 92-93 (2d Cir. 1975) and cases there cited. 8 Id. at 92; Lamarr v. Klein, 35 A.D.2d 248, 315 N.Y.S.2d 695 (1st Dep't 1970), aff'd mem., 30 N.Y.2d 757, 333 N.Y.S.2d 421, 284 N.E.2d 576 (1972); Saratoga Harness Racing Ass'n v. Moss, 26 A.D.2d ......