Sheldon Estates v. Perkins Pancake House
| Decision Date | 30 June 1975 |
| Citation | 369 N.Y.S.2d 806,48 A.D.2d 936 |
| Parties | SHELDON ESTATES, INC., Respondent, v. PERKINS PANCAKE HOUSE, INC., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Gerard A. Navagh, New York City, for appellant.
Lewis Werb, Staten Island (John F. Hamm, Staten Island, of counsel), for respondent.
Before RABIN, Acting P.J., and MARTUSCELLO, CHRIST, MUNDER and SHAPIRO, JJ.
MEMORANDUM BY THE COURT.
In an action upon an instrument for the payment of a sum of money only, defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County, dated February 24, 1975, as denied its cross motion to dismiss the action on the ground of lack of personal jurisdiction.
Order reversed insofar as appealed from, with $20 costs and disbursements, and cross motion granted.
Defendant, Perkins Pancake House, Inc. (PPHI), is a corporation organized under the laws of Ohio. Its principal place of business is located in Strongsville, Ohio. PPHI is the exclusive sales agent of the Pancake House, Inc. (Pancake House), another Ohio corporation, whose principal office is in Cincinnati, Ohio. Pancake House, through its agent PPHI, is the franchisor under a number of agreements with corporations and individuals operating Perkins Pancake House franchises in the Middle Atlantic states. Neither of the above-mentioned corporations is authorized to do business in New York. Moreover, defendant has no offices, telephone listing, bank account or employees within the State. However, James Mulcahy, a franchisee who operates a Perkins Pancake House in Binghamton, New York, is the 'eastern representative' of PPHI and, pursuant to leads supplied to him, contacts prospective franchisees, investigates and advises PPHI as to the feasibility of certain sites, occasionally aids in the location of sites, and acts as a consultant to existing franchisees. Mulcahy is not an officer or director of Pancake House or PPHI; nor does he receive any salary from either of these corporations. In all of his activities as agent, he has no power to enter into any contracts which would bind PPHI. As compensation for his services he receives commissions and overrides, the total sum of which amounted to $326.72 for the years 1968 to 1971.
The subject of the present litigation involves a promissory note executed in connection with the purchase of a franchise in Wayne, New Jersey. It is uncontroverted that all relevant documents were executed outside of New York. Plaintiff corporation, through a number of assignments and sales, is the current holder of the note. The original makers have defaulted and plaintiff seeks to hold PPHI as a guarantor or endorser. Service of the summons and notice of motion for summary judgment in lieu of the complaint was made upon Mulcahy in Binghamton, New York.
Upon the whole record, we conclude that jurisdiction over defendant was not perfected. Since...
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In re Alsted Automotive Warehouse, Inc.
...Miller v. Surf Properties, Inc., 4 N.Y.2d 475, 151 N.E.2d 874, 176 N.Y.S.2d 318 (1958); Sheldon Estates, Inc. v. Perkins Pancake House, Inc., 48 A.D.2d 936, 369 N.Y.S.2d 806 (2d Dep't 1975); Simonson v. International Bank, 16 A.D.2d 55, 225 N.Y.S.2d 392 (1st Dep't 1962), aff'd, 14 N.Y.2d 28......
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...within the State, jurisdiction may not be predicated upon any of the provisions found in CPLR 302" (Sheldon Estates v. Perkins Pancake House, 48 A.D.2d 936, 937, 369 N.Y.S.2d 806). Plaintiff's contention that defendant is subject to personal jurisdiction because it was plaintiff's agent is ......
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