Patrick Ellam, Inc. v. Nieves
| Decision Date | 10 December 1963 |
| Citation | 245 N.Y.S.2d 545,41 Misc.2d 186 |
| Parties | PATRICK ELLAM, INC., Plaintiff, v. Henry NIEVES, Defendant. |
| Court | New York Supreme Court |
Brill & Darrow, Larchmont, for plaintiff.
Barnet L. Arlan, New York City, for defendant.
This is a motion by the defendant for an order vacating and setting aside the personal service of the summons and complaint outside the State upon said defendant. The defendant asserts that he is a nondomiciliary of this State who neither transacts business herein nor owns, uses or possesses real property herein, nor has committed any tortious act herein within the purview of Section 302(a) of the Civil Practice Law and Rules.
It appears that personal service of the summons and complaint was effected upon the defendant on September 29, 1963, in St. Thomas, Virgin Islands.
In December 1961 the defendant, the owner of the sailing vessel, employed the plaintiff's assignor to furnish a crew for the purpose of delivering the defendant's vessel to St. Thomas. Apparently, the crew so supplied did not proceed with the vessel beyond Charleston, South Carolina. The plaintiff has brought this action to recover for services rendered by his assignor. The defendant alleges that the contract with the plaintiff assignor was breached in Charleston, South Carolina, and he has interposed a counterclaim for damages. Section 302(a) of the Civil Practice Law and Rules states:
'1. transacts any business within the state; of * * *'.
It is the defendant's contention that the language: 'transacts any business within the state' requires that the said defendant must be transacting business within the state at the time of the commencement of the action. It is undisputed that the defendant took up residence in the Virgin Islands at about the time of the alleged breach of contract in 1961. It is, therefore, the defendant's position that since the action was not commenced until September 1963, it cannot be said that the defendant 'transacts business within the state.'
The Court notes the 'Practice Commentary' by Joseph N. McLaughlin appearing in McKinney's Consolidated Laws of New York Annotated, Book 7B, page 438, wherein it is stated:
'There can no longer be any serious doubt that the transaction of business within the state is a sufficient predicate for personal jurisdiction at least as to causes of action arising out of that business.' (page 430)
The cause of action inserted by the plaintiff is breach of contract. In the opinion of the Court, the making of such a contract in New York is a sufficient transaction to bring the defendant within the scope of Section 302(a) of the Civil Practice Law and Rules. While it may be argued that the breach of the contract occurred somewhere along the Atlantic Coast and outside the State of New York, the Court considers the making of the contract in New York and the arising of a cause of action out of such contract as sufficient to validate the service of process effected herein.
With respect to the...
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...agreement in New York is considered by the New York Courts a vital contact with this state. Thus, in Patrick Ellam, Inc. v. Nieves, 41 Misc.2d 186, 245 N.Y.S.2d 545 (1963), the Supreme Court, Westchester County, decided that the making of a contract in New York to transport a vessel from Ne......
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