West Mountain Corp. v. Seasons of Leisure Intern., Inc.
| Decision Date | 04 June 1981 |
| Citation | 440 N.Y.S.2d 729,82 A.D.2d 931 |
| Parties | WEST MOUNTAIN CORPORATION, Plaintiff, v. SEASONS OF LEISURE INTERNATIONAL, INC., Defendant. BATHER, RINGROSE, WOLSFELD, INC., Defendant and Third-Party Plaintiff-Appellant, v. COMO SPECIALTIES, INC., Third-Party Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Meiselman, Farber, Stella & Moran, Poughkeepsie (Myra I. Packman, Poughkeepsie, of counsel), for defendant and third-party plaintiff-appellant.
Carusone & Carusone, Glens Falls (Robert J. Muller, Glens Falls, of counsel), for third-party defendant-respondent.
Before SWEENEY, J. P., and KANE, MAIN, MIKOLL and HERLIHY, JJ.
MEMORANDUM DECISION.Appeal from an order of the Supreme Court at Special Term, entered May 12, 1980 in Warren County, which granted a motion by Como Specialties, Inc. for summary judgment dismissing the third-party complaint.
On April 21, 1977, plaintiff West Mountain Corporation (West Mountain) entered into a written contract with defendant Seasons of Leisure International, Inc. (SOLI), a Minnesota corporation, for the construction and installation of a 3000-foot-long amusement slide system known as the "Red Rumbler". The slide was to be located on West Mountain's property in Glens Falls, New York. SOLI proceeded to hire defendant and third-party-plaintiff Bather, Ringrose, Wolsfeld, Inc. (BRW), an architectural and engineering firm also based in Minnesota, to develop a route for the slide on West Mountain and to provide the necessary engineering and technical assistance.
SOLI ordered from third-party defendant Como Specialties, Inc. (COMO), another Minnesota corporation, the metal track, sleds and other parts needed for the construction and installation of the slide.
West Mountain, because of alleged delays in delivery and installation of the slide system and alleged faulty construction of parts, instituted a lawsuit against SOLI and BRW in November, 1977, claiming damages for breach of contract, negligence and false representation. SOLI failed to appear and a default judgment was entered against it.
In March, 1980, BRW commenced its third-party action against COMO for indemnification and/or apportionment, alleging that parts supplied by COMO were faulty and delivered late.
COMO's motion to dismiss the third-party complaint was granted at Special Term on the ground that the trial court lacked in personam jurisdiction over COMO. This appeal by BRW ensued.
The order of Special Term should be reversed and the third-party complaint reinstated.
The Supreme Court has personal jurisdiction over the third-party defendant foreign corporation, COMO, pursuant to CPLR 302 (subd. par. 1). The statute, as amended effective September 1, 1979 (L.1979, ch. 252), stipulates that a court of this State may exercise personal jurisdiction over any nondomiciliary who, in person or through an agent:
* * * transacts any business within the state or contracts anywhere to supply goods or services in the state * * * (emphasis added).
The effect of the 1979 amendment to section 302 (subd. par. 1) has been to abrogate the "mere shipment" rule established by case law so that New York courts now have jurisdiction where a nondomiciliary enters into a contract outside the State to send goods to New York, so long as the cause of action, as here, arose out of that contract (McLaughlin, 1979 Supplementary Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 302:13; see Pyramid Co. of Ithaca v. Original Great Amer. Chocolate Chip Cookie Co., 102 Misc.2d 1056, 1058, 425 N.Y.S.2d 230). The amendment is remedial and applies retroactively to the contract in question which was...
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