U.S. Immigration Fund LLC v. Litowitz

• Citation: 182 A.D.3d 505,122 N.Y.S.3d 632
• Decision Date: 30 April 2020
• Docket Number: Index 159222/18,11154
• Parties: U.S. IMMIGRATION FUND LLC, et al., Plaintiffs–Appellants, v. Douglas LITOWITZ, Esq., et al., Defendants–Respondents, Reviv–East Legal Consultants (HK) Ltd. also known as Hong Kong Zhendong Legal Services Consulting Co., Ltd., Defendant.
• Court: New York Supreme Court Appellate Division

182 A.D.3d 505
122 N.Y.S.3d 632

U.S. IMMIGRATION FUND LLC, et al., Plaintiffs–Appellants,
v.
Douglas LITOWITZ, Esq., et al., Defendants–Respondents,

Reviv–East Legal Consultants (HK) Ltd. also known as Hong Kong Zhendong Legal Services Consulting Co., Ltd., Defendant.

11154
Index 159222/18

Supreme Court, Appellate Division, First Department, New York.

ENTERED: APRIL 30, 2020

122 N.Y.S.3d 633

Otterbourg P.C., New York (Richard G. Haddad of counsel), for appellants.

Douglas Litowitz, respondent pro se.

Manzanet–Daniels, J.P., Kapnick, Gesmer, Oing, JJ.

Order, Supreme Court, New York County (Melissa A. Crane, J.), entered April 5, 2019, which, to the extent appealed from as limited by the briefs, granted defendants Douglas Litowitz, Esq.'s and Xuejun Makhsous a/k/a Ma Xuejun a/k/a Zoe Ma's motions to dismiss the complaint as against them for lack of personal jurisdiction, unanimously modified, on the law, to extent of reinstating the third cause of action for breach of the Confidentiality Agreement as against defendant Litowitz, and otherwise affirmed, without costs.

Plaintiffs assert two bases for jurisdiction over defendants: the Confidentiality Agreement and long-arm jurisdiction.

The Confidentiality Agreement, which defendant Litowitz signed, provides that he consents to personal jurisdiction in New York to any "suit, action, or proceeding arising out of" it. Because the third cause of action alleges that he breached the Confidentiality Agreement, his motion to dismiss that cause of action based only on CPLR 3211(a)(8) for lack of personal jurisdiction should have been denied.

The Confidentiality Agreement, however, does not otherwise confer personal jurisdiction over Litowitz on the remaining claims. The crux of the complaint—which alleges fraud and defamation against defendants—fails to plead a sufficient nexus with the alleged breach of the Confidentiality Agreement (see

122 N.Y.S.3d 634

Schmelkin v. Garfield, 85 A.D.3d 755, 925 N.Y.S.2d 139 [2d Dept. 2011] )....