Malczuk v. Michaels Org.

• Decision Date: 23 October 2020
• Docket Number: 700876/2020
• Citation: 70 Misc.3d 218,135 N.Y.S.3d 252
• Parties: Bronislaw MALCZUK, Plaintiff, v. The MICHAELS ORGANIZATION, Interstate Realty Management Company, and Canebrake Apartments, Defendants.
• Court: New York Supreme Court

70 Misc.3d 218

135 N.Y.S.3d 252

Bronislaw MALCZUK, Plaintiff,

v.The MICHAELS ORGANIZATION, Interstate Realty Management Company, and Canebrake Apartments, Defendants.

700876/2020

Supreme Court, Queens County, New York.

Decided on October 23, 2020

Attorney for Plaintiff, Jodre Brenecki, LLP, 71-27 Fresh Pond Road, 2nd Floor, Queens, New York 11385

Attorney for Defendants, Gordon Rees Scully Mansukhani, LLP, 1 Battery Park Plaza, 28th Floor, New York, New York 10004

Denis J. Butler, J.

On this motion by defendants for an order, pursuant to 3211 (a) (7) and (8) and 327 (a), dismissing the complaint, it is ordered that this motion is determined as follows:

Plaintiff commenced this action to recover damages for personal injuries allegedly sustained in a construction accident that occurred on September 1, 2018, in Frederiksted, Virgin Islands.

It is fundamental that a court must acquire personal jurisdiction over a defendant before it can render a judgment against that defendant (see Burnham v. Superior Court of Cal., County of Marin , 495 U.S. 604, 110 S.Ct. 2105, 109 L.Ed.2d 631 [1990] ; Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 [1982] ). A defendant may consent to a court's exercise of personal jurisdiction (see National Equipment Rental, Ltd. v. Szukhent , 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 [1964] ), or waive the right to object to it (see CPLR 3211 [e] ; Iacovangelo v. Shepherd , 5 N.Y.3d 184, 800 N.Y.S.2d 116, 833 N.E.2d 259 [2005] ), but when a defendant has objected to the court's exercise of personal jurisdiction, the plaintiff bears the burden of coming forward with sufficient evidence to prove jurisdiction (see Fischbarg v. Doucet , 9 N.Y.3d 375, 849 N.Y.S.2d 501, 880 N.E.2d 22 [2007] ; Mejia—Haffner v. Killington, Ltd. , 119 A.D.3d 912, 990 N.Y.S.2d 561 [2d Dept. 2014] ).

Under modern jurisprudence, a court may assert general all-purpose jurisdiction or specific conduct-linked jurisdiction over a particular defendant (see Daimler AG v. Bauman , 571 U.S. 117, 134 S.Ct. 746, 187 L.Ed.2d 624 [2014] ; Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 131 S.Ct. 2846, 180 L.Ed.2d 796 [2011] ). "A court with general jurisdiction may hear any claim against that defendant, even if all the incidents underlying the claim occurred in a different State" ( Bristol—Myers Squibb Co. v. Superior Court of Cal., San Francisco County , ––– U.S. ––––, 137 S. Ct. 1773, 1780, 198 L.Ed.2d 395 [2017] ; see Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 131 S.Ct. 2846, 180 L.Ed.2d 796 ). "Specific jurisdiction, on the other hand, depends on an affiliation between the forum and the underlying controversy, principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation" ( Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. at 919, 131 S.Ct. 2846 [internal quotation marks and brackets omitted]; Daimler AG v. Bauman , 571 U.S. 117, 134 S.Ct. 746, 187 L.Ed.2d 624 ).

CPLR 301, which confers general jurisdiction in New York, authorizes a court to exercise "such jurisdiction over persons, property, or status as might have been exercised heretofore." In Goodyear Dunlop Tires Operations, S.A. v. Brown , the United States Supreme Court stated that a court is authorized to exercise general jurisdiction over a foreign corporation when the corporation's affiliations with the state "are so 'continuous and systematic' as to render them essentially at home in the forum State" ( 564 U.S. at 919, 131 S.Ct. 2846, quoting International Shoe Co. v. Washington , 326 U.S. 310, 317, 66 S.Ct. 154, 90 L.Ed. 95 [1945] ). In Daimler AG v. Bauman , the Supreme Court limited the scope of general jurisdiction to that definition and rejected a standard that would allow the exercise of general jurisdiction in every state where a corporation is engaged in a substantial, continuous, and systematic course of business ( 571 U.S. 117, 134 S.Ct. 746, 187 L.Ed.2d 624 ). The Supreme Court instructed that the paradigm bases for general jurisdiction over a corporation are the place of incorporation and principal place of business. In the present case, no defendant is incorporated in New York or has a principal place of business here.

Plaintiff argues that defendants consented to the jurisdiction of New York courts for all purposes by registering to do business in New York. Business Corporation Law § 1301 (a) provides that "[a] foreign corporation shall not do business in this state until it has been authorized to do so." Business Corporation Law § 304 (b) provides that no foreign corporation may be authorized to do business in New York unless in its application for authority, it designates the secretary of state as the agent upon whom process against the corporation may be served. Similarly, Business Corporation Law § 1304 (a) (6) requires a foreign corporation, in its application for authority to do business in New York, to designate the secretary of state as its agent upon whom process against it may be served and an address to which process received by the Secretary of State is to be mailed.

This court is constrained to follow the precedent established in Aybar v. Aybar , where the Appellate Division, Second Department, held that "New York's business registration statutes do not expressly require consent to general jurisdiction as a cost of doing business in New York, nor do they expressly notify a foreign corporation that registering to do business here has such an effect" ( 169 A.D.3d 137, 147, 93 N.Y.S.3d 159 [2d Dept. 2019], lv dismissed 33 N.Y.3d 1044, 103 N.Y.S.3d 17, 126 N.E.3d 1057 [2019], lv granted 34 N.Y.3d 905, 2019 WL 6873462 [2019] ). The court continued, "it cannot be said that a corporation's compliance with the existing business registration statutes constitutes consent to the general jurisdiction of New York courts, to be sued upon causes of action that have no relation to New York ( Aybar v. Aybar , 169 A.D.3d at 147, 93 N.Y.S.3d 159." The number of New York courts rejecting general personal jurisdiction based solely on a foreign corporation's registration to do business here continues to grow (see Kyowa Seni, Co. v. ANA Aircraft Technics, Co. , 60 Misc. 3d 898, 80 N.Y.S.3d 866 [Sup. Ct., N.Y. County 2018] ), under the reasoning that Daimler AG v. Bauman renders the reasoning of old cases upholding general jurisdiction on the basis of consent-by-registration outmoded and inapplicable (see Aybar v. Aybar , 169 A.D.3d 137, 93 N.Y.S.3d 159 ).

New York's long-arm statute, CPLR 302, provides, in relevant part, that New York courts may exercise personal jurisdiction over any non-domiciliary who "transacts any business within the state or contracts anywhere to supply goods or services in the state" ( CPLR 302 [a] [1] ) or "commits a tortious act without the state causing injury to person or property within the state" ( CPLR 302 [a] [3] ). Under CPLR 302 (a) (3), "[t]he situs of the injury is the location of the original event which caused the injury, not the location where the resultant damages are subsequently felt by the plaintiff" ( Hermann v. Sharon Hosp. , 135 A.D.2d 682, 683, 522 N.Y.S.2d 581 [2d Dept. 1987] ; see Paterno v. Laser Spine Inst. , 24 N.Y.3d 370, 998 N.Y.S.2d 720, 23 N.E.3d 988 [2014] ; McGowan v. Smith , 52 N.Y.2d 268, 437 N.Y.S.2d 643, 419 N.E.2d 321 [1981] ; Bloomgarden v. Lanza , 143 A.D.3d 850, 40 N.Y.S.3d 142 [2d Dept. [2016] ; Vaichunas v. Tonyes , 61 A.D.3d 850, 877 N.Y.S.2d 204 [2d Dept. 2009] ). Here, since the accident which caused the injuries occurred in the Virgin Islands, CPLR 302 (a) (3) does not provide a basis for personal jurisdiction over these defendants (see Abad v. Lorenzo , 163 A.D.3d 903, 82 N.Y.S.3d 486 [2d Dept. 2018] ; Vaichunas v. Tonyes , 61 A.D.3d 850, 877 N.Y.S.2d 204 ).

In order to determine whether personal jurisdiction exists under CPLR 302 (a) (1), the court must determine (1) whether the defendant "purposefully availed itself of 'the privilege of conducting activities within the forum State' by either transacting business in New York or contracting to supply goods or services in New York" ( D & R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro , 29 N.Y.3d...