Schubert v. Marwell

• Decision Date: 14 August 1995
• Citation: 630 N.Y.S.2d 547,218 A.D.2d 693
• Parties: Robert W. SCHUBERT, Respondent, v. Edward M. MARWELL, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 547

630 N.Y.S.2d 547

218 A.D.2d 693

Robert W. SCHUBERT, Respondent, v.Edward M. MARWELL, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Aug. 14, 1995.

Cowan, Liebowitz & Latman, New York City(J. Christopher Jensen, Maureen Walsh Sheehan, and Jonathan Z. King, of counsel), for appellants.

Coudert Brothers, New York City(Stephen M. Hudspeth, David A. Schwartz-Leeper, and Richard A. DePalma, of counsel), for respondent.

Before SULLIVAN, J.P., and O'BRIEN, THOMPSON and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for specific performance of an alleged joint venture agreement, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County(Coppola, J.), entered February 17, 1994, as denied those branches of their motion which were to dismiss the complaint insofar as it is asserted against Curtis Massi Elektronik GmbH for lack of personal jurisdiction, to dismiss the second and fourth causes of action, and to strike the demand for punitive damages.

ORDERED that the order is affirmed insofar as appealed from, with costs.

We agree that personal jurisdiction was obtained over the defendantCurtis Massi Elektronik GmbH(hereinafter Curtis Massi) since that defendant is a department of its parent corporation, defendantCurtis Instruments, Inc.(hereinafter Curtis)(see, Delagi v. Volkswagenwerk AG., 29 N.Y.2d 426, 328 N.Y.S.2d 653, 278 N.E.2d 895;Public Adm'r of County of N.Y. v. Royal Bank, 19 N.Y.2d 127, 278 N.Y.S.2d 378, 224 N.E.2d 877).Curtis Massi was wholly owned by Curtis, and Curtis exerted considerable control over its executive personnel and its marketing and operational policies.In addition, Curtis Massi was financially dependent on its parent Curtis for infusions of working capital, as exhibited by a working capital loan by Curtis to Curtis Massi of 1,000,000 deutsche marks.In addition, the record indicated that the acquisition of the so-called "counter/timer assets" was premised upon Curtis' commitment to expend substantial sums for working capital and for research and product development (see, Frummer v. Hilton Hotels Intl., 19 N.Y.2d 533, 281 N.Y.S.2d 41, 227 N.E.2d 851, rearg. denied 20 N.Y.2d 758, 283 N.Y.S.2d 1025, 229 N.E.2d 844, cert. denied389 U.S. 923, 88 S.Ct. 241, 19 L.Ed.2d 266;Taca Intl. Airlines v. Rolls-Royce of England, 15 N.Y.2d 97, 256 N.Y.S.2d 129, 204 N.E.2d 329;see also, Volkswagenwerk AG. v. Beech Aircraft Corp., 751 F.2d 117;cf., Porter v. LSB Indus., 192 A.D.2d 205, 600 N.Y.S.2d 867).

The court also correctly declined to dismiss the fourth cause of action sounding in fraud, as it contained factual allegations...