Liberatore v. Calvino

• Decision Date: 30 May 2002
• Citation: 293 A.D.2d 217,742 N.Y.S.2d 291
• Parties: IDA LIBERATORE, Appellant,<BR>v.<BR>JOHN N. CALVINO, ESQ., et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

293 A.D.2d 217

742 N.Y.S.2d 291

IDA LIBERATORE, Appellant,

v.JOHN N. CALVINO, ESQ., et al., Respondents, et al., Defendants.

May 30, 2002.

Laurence M. Deutsch for appellant.

Marian S. Hertz of counsel (Zichello & McIntyre, LLP, attorneys), for respondents.

MAZZARELLI, ROSENBERGER, WALLACH and LERNER, JJ., concur.

OPINION OF THE COURT

WILLIAMS, P.J.

This action arose from a personal injury suffered by plaintiff, a Rhode Island minor visiting New York City in 1991, when the taxi in which she was a passenger was rear-ended by a bus. Upon her return home, she and her parents met with defendant Calvino, an attorney admitted in Rhode Island and Massachusetts, and engaged his services to represent her in seeking to recover for her injuries.

Over the next three years, Calvino concededly provided plaintiff with legal advice regarding New York's No-Fault Law and statute of limitations, secured New York no-fault benefits to cover her ongoing medical bills, obtained plaintiff's medical records from Bellevue Hospital in New York City as well as from various doctors in Rhode Island and Massachusetts, investigated her accident by contacting the New York Police Department and the bus company, and attempted to negotiate a settlement of her claims with the bus company, on several occasions threatening to commence a legal action in New York. Other than the legal advice, all of these activities were accomplished by numerous letters and telephone calls. When it became clear, in 1994, that a legal action would have to be commenced to resolve plaintiff's claims, Calvino referred her to defendant Vecchio, a New York attorney, and his firm. Vecchio entered into a retainer agreement with plaintiff and a referral agreement with Calvino, agreeing to pay him "one-third (1/3) of the net attorney's fees recovered in this case based upon the work performed by your office up to this point and the continuing work which will be performed in assisting in the representation of Ms. Liberatore in this action." When Calvino returned those documents to Vecchio, he assured him that he would assist in settling plaintiff's claims. Shortly thereafter, Calvino wrote a letter to Vecchio advising him of the status of his efforts to collect insurance payments for plaintiff's medical bills and asked him to contact the insurance company about such bills that remained outstanding.

Vecchio commenced the New York action in 1995. Plaintiff periodically consulted with Calvino, but Vecchio had no further contact with Calvino until April 1997, when, by conference call, he advised Calvino and plaintiff at Calvino's offices that the New York action had run afoul of the statute of limitations, since the bus company was owned by New York City and thus was subject to the one year and 90 day limitations period in General Municipal Law § 50-i. Subsequently, Vecchio phoned Calvino to advise him that the action had been settled for $7,500; Vecchio's firm then paid Calvino $776.97 in attorney's fees, which Calvino accepted. Plaintiff then brought the instant legal malpractice action against Calvino and Vecchio and their respective firms, alleging that due to their negligence in ascertaining the applicable statute of limitations, she was forced to enter into an unsatisfactory settlement. The court ordered a reference on the issue of whether it had personal jurisdiction over the Calvino defendants pursuant to CPLR 302 (a) (1).

After a hearing, the referee found that plaintiff and Calvino maintained an attorney-client relationship, but that Calvino played no role in the New York litigation and conducted no purposeful activities in New York that were substantially related to plaintiff's claim. The referee also found that the referral agreement between Calvino and Vecchio had no substantial relationship to plaintiff's malpractice claim. The court confirmed the report.

CPLR 302 (a) (1), the New York "long-arm" statute, provides as follows:

"Personal Jurisdiction by acts of non-domiciliaries

"(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:

"1. transacts any business within the state or contracts anywhere to supply goods or services in the state."

Calvino's conceded activities in representing plaintiff in New York included both contracting to supply services in the state and a transaction of business within the state.

A nondomiciliary transacts business in New York when he or she "purposefully avails [himself] of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws" (CutCo Indus., Inc. v Naughton, 806 F2d 361, 365 [citations omitted]). The nondomiciliary's contact with New York must be "purposeful and the totality of the circumstances indicate that the exercise of jurisdiction would be proper" (Levisohn, Lerner, Berger & Langsam v Medical Taping Sys., 10 F Supp 2d 334, 339 [citations omitted]). Once the court determines that a defendant has transacted business in New York, the plaintiff must establish a "substantial nexus" between the business transacted and the cause of action (Agency Rent A Car Sys. v Grand Rent A Car Corp., 98 F3d 25, 31 [citations omitted]).

A nondomiciliary "contracts anywhere to supply * * * services in the state" when he projects himself into New York to perform services and purposefully avails himself of the privileges and benefits of performing such services in the state (Bank Brussels Lambert v Fiddler Gonzalez & Rodriguez, 171 F3d 779, 789).

Under either prong of CPLR 302 (a) (1) it is necessary that the Due Process Clause of the United States Constitution be...