New England Laminates Co., Inc. v. Murphy

• Decision Date: 13 December 1974
• Citation: 362 N.Y.S.2d 730,79 Misc.2d 1025
• Parties: NEW ENGLAND LAMINATES CO., INC., Plaintiff, v. William J. MURPHY and Fortin Laminating Corporation, Defendants.
• Court: New York Supreme Court

Page 730

362 N.Y.S.2d 730

79 Misc.2d 1025

NEW ENGLAND LAMINATES CO., INC., Plaintiff, v. William J. MURPHY and Fortin Laminating Corporation, Defendants.

Supreme Court, Special Term, Nassau County, Part II.

Dec. 13, 1974.

Parker, Chapin & Flattau, New York City, for plaintiff.

Wydler, Balin, Pares, Soloway, Seaton & Marglin, New Hyde Park, for defendants.

ALBERT A. OPPIDO, Justice.

Defendant, Fortin Laminating Corp. (hereinafter referred to as 'Fortin'), a Delaware Corporation, has moved, pursuant to CPLR 3211(a)(8), for an order dismissing this action as to it upon the ground that this Court lacks In personam jurisdiction over Fortin. This matter was set down for a hearing by order of Mr. Justice Meade.

The issue before this Court is whether plaintiff has shown enough to establish (1) that defendant, Fortin, is doing business in New York sufficient for In personam jurisdiction, pursuant to CPLR 301; or (2) that the defendant, Fortin, is transacting or has transacted 'any business within the state', pursuant to CPLR 302, subd. (a)(1); or (3) that the defendant, Fortin, is committing or has committed a 'tortious act within the state', pursuant to CPLR 302, subd. (a) (2); or (4) that the defendant, Fortin, is committing or has committed a 'tortious act without the state causing injury to person or property within the state', if it also 'regularly does or solicits business . . . in the state' or 'derives substantial revenue from goods used or consumed or services rendered, in the state' (CPLR 302(a)(3)(i)), or if it also 'expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce' (CPLR 302, subd. (a)(3) (ii)).

The Court, after hearing the testimony of the two witnesses, who were called at the hearing, and reviewing the exhibits offered into evidence, makes the following finding of facts:

The defendant, William Murphy, who became the eastern sales manager for the defendant, Fortin, in November, 1973, was formerly employed by the plaintiff as national sales manager until he left the employ of the plaintiff in January, 1973. Mr. Murphy resides in New York and spends four to five percent of his total working hours in New York. This time is spent calling on customers and directing, working with and supervising salesmen, some of whom work exclusively for Fortin, while others are manufacturers' representatives, who work for several companies. One of these salesmen, Richard Lucier, is employed exclusively by defendant, Fortin. Mr. Lucier not only solicits orders from customers in New York and other northeastern states, which orders are then phoned in to California or sent by mail to that state, but also offers advice to customers in New York and checks from time to time with these customers to see if there are any problems with the epoxy glass that Fortin manufactures and sells. All orders are approved in California, where the material is manufactured and the product is then shipped directly to the customer. Brochures are circulated in New York, both by mail and by personal delivery, and advertising for Fortin's products is placed in magazines, which are national in scope and which are circulated in New York. The total dollar value of Fortin's business each year is approximately $10,000,000. of which $400,000. is done in New York. This $400,000. represents sales to approximately ten (10) customers, the largest of whom purchases $200,000. worth of Fortin's products each year. Fortin has no office, telephone, bank account or warehouse in New York nor does it own any real property in this state.

Prefactorily, the Court notes that a plaintiff who seeks to invoke the In personam jurisdiction of this Court with respect to a non-resident defendant must expressly allege in the complaint facts bringing the non-resident within Sections 301 or 302 of the CPLR (See All-State Credit Corp. v. 669 Defendants, 61 Misc.2d 677, 679, 306 N.Y.S.2d 596, 598; Coffman v. National Union Fire Ins. Co., 60 Misc.2d 81, 302 N.Y.S.2d 480; Lebensfeld v. Tuch, 43 Misc.2d 919, 252 N.Y.S.2d 594).

The allegations contained in paragraph 16 of the complaint are insufficient to predicate jurisdiction over Fortin, pursuant to CPLR 301. Moreover, the facts elicited at the hearing, when coupled with the allegations in the complaint, are still insufficient. The mere solicitation of business in New York is not enough to constitute 'doing business' in New York under CPLR 301 (Frummer v. Hilton Hotels, Intl., Inc., 19 N.Y.2d 533, 536, 281 N.Y.S.2d 41, 43, 227 N.E.2d 851, 852; Miller v. Surf Props, 4 N.Y.2d 475, 480, 176 N.Y.S.2d 318, 321, 151 N.E.2d 874, 876) even though that solicitation consisted of advertising in New York media (Delagi v. Volkswagenwerk AG of Wolfsburg, Germany, 29 N.Y.2d 426, 432, 328 N.Y.S.2d 653, 656, 278 N.E.2d 895, 897). Nor is the mere shipment of goods from outside the state to local buyers, pursuant to the above solicitations sufficient (Millner Co., Inc., v. Noudar, LDA, 24 A.D.2d 326, 330, 266 N.Y.S.2d 289, 294 and cases cited therein). This is especially true when, as here, the contract of sale is not final until approved by Fortin in California (Fremay v. Modern Plastic Corp., 15 A.D.2d 235, 241, 222 N.Y.S.2d 694, 700; Irgang v. Pelton & Crane Co., 42 Misc.2d 70, 247 N.Y.S.2d 743). Moreover, the fact that Mr. Murphy is a New York resident is of no particular moment (Fremay v. Modern Plastic Corp., supra, 15 A.D.2d at 241, 222 N.Y.S.2d 694, 700) nor is the presence of Mr. Lucier and Mr. Murphy, employees of the defendant, Fortin, in New York on corporate business enough upon which to predicate a finding that Fortin was 'present within our jurisdiction' (Meunier v. Stebo, Inc., 38 A.D.2d 590, 592, 328 N.Y.S.2d 608, 612). It is this Court's conclusion that the defendant, Fortin, is not engaged in such a continuous and systematic course of 'doing business' in New York as to warrant a finding of its 'presence' in this jurisdiction under CPLR 301 (Delagi v. Volkswagenwerk AG of Wolfsburg, Germany, Supra, 29 N.Y.2d 426, 328 N.Y.S.2d 653, 278 N.E.2d 895).

We turn now to a consideration of whether the defendant, Fortin, has 'transact(ed) any business within the state' so as to come within the purview of CPLR 302(a)(1). Newhere in the complaint is there a claim that the plaintiff's cause of action against Fortin arose out of the transacting of any business in New York. For this reason, jurisdiction would fail under CPLR 302(a)(1) (Ferrante Equip. Co. v. Lasker-Goldman Corp., 26 N.Y.2d 280, 283, 309 N.Y.S.2d 913, 916, 258 N.E.2d 202, 204; American Eutectic Welding Alloys Sales Co., Inc. v. Dytron Alloys Corp., 2 Cir., 439 F.2d 428).

CPLR 302(a)(3)(ii) also may not be relied upon by plaintiff to obtain In personam jurisdiction over the defendant, Fortin. That section requires not only that defendant commit a tortious act without the state...