NY CPLR § 302(a)(2)

Transcription

NY CPLR § 302(a)(2)

McKinney's CPLR § 302
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Effective: April 28, 2008
McKinney's Consolidated Laws of New York Annotated Currentness
Civil Practice Law and Rules (Refs & Annos)
Chapter Eight. Of the Consolidated Laws
Article 3. Jurisdiction and Service, Appearance and Choice of Court (Refs & Annos)
§ 302. Personal jurisdiction by acts of non-domiciliaries
(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in
this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:
1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or
2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from
the act; or
3. commits a tortious act without the state causing injury to person or property within the state, except as to a
cause of action for defamation of character arising from the act, if he
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial
revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue
from interstate or international commerce; or
4. owns, uses or possesses any real property situated within the state.
(b) Personal jurisdiction over non-resident defendant in matrimonial actions or family court proceedings. A
court in any matrimonial action or family court proceeding involving a demand for support, alimony, maintenance, distributive awards or special relief in matrimonial actions may exercise personal jurisdiction over the respondent or defendant notwithstanding the fact that he or she no longer is a resident or domiciliary of this state,
or over his or her executor or administrator, if the party seeking support is a resident of or domiciled in this state
at the time such demand is made, provided that this state was the matrimonial domicile of the parties before their
separation, or the defendant abandoned the plaintiff in this state, or the claim for support, alimony, maintenance,
distributive awards or special relief in matrimonial actions accrued under the laws of this state or under an
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
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agreement executed in this state. The family court may exercise personal jurisdiction over a non-resident respondent to the extent provided in sections one hundred fifty-four and one thousand thirty-six and article five-B
of the family court act and article five-A of the domestic relations law.
(c) Effect of appearance. Where personal jurisdiction is based solely upon this section, an appearance does not
confer such jurisdiction with respect to causes of action not arising from an act enumerated in this section.
(d) Foreign defamation judgment. The courts of this state shall have personal jurisdiction over any person who
obtains a judgment in a defamation proceeding outside the United States against any person who is a resident of
New York or is a person or entity amenable to jurisdiction in New York who has assets in New York or may
have to take actions in New York to comply with the judgment, for the purposes of rendering declaratory relief
with respect to that person's liability for the judgment, and/or for the purpose of determining whether said judgment should be deemed non-recognizable pursuant to section fifty-three hundred four of this chapter, to the
fullest extent permitted by the United States constitution, provided:
1. the publication at issue was published in New York, and
2. that resident or person amenable to jurisdiction in New York (i) has assets in New York which might be used
to satisfy the foreign defamation judgment, or (ii) may have to take actions in New York to comply with the foreign defamation judgment. The provisions of this subdivision shall apply to persons who obtained judgments in
defamation proceedings outside the United States prior to and/or after the effective date of this subdivision.
CREDIT(S)
(L.1962, c. 308. Amended L.1966, c. 590, § 1; L.1974, c. 859, § 1; L.1979, c. 252, §§ 1, 2; L.1980, c. 281, § 22;
L.1982, c. 505, § 1; L.1991, c. 69, § 7; L.1995, c. 441, § 2; L.2006, c. 184, § 5, eff. July 26, 2006; L.2008, c. 66,
§ 3, eff. April 28, 2008.)
HISTORICAL AND STATUTORY NOTES
L.2008, c. 66 legislation
Subd. (d). L.2008, c. 66, § 3, added subd. (d).
L.2008, c. 66, § 1, provides:
“Short title. This act shall be known and may be cited as the ‘libel terrorism protection act’ ”.
L.2006, c. 184, legislation
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Sub. (b). L.2006, c. 184, § 5, added “and article five-B” after “one thousand thirty-six” and “and article five-A
of the domestic relations law” after “of the family court act”.
Legislative Studies and Reports
Subd. (a) of this section is modeled upon § 17 of the Illinois civil practice act. The Second Report to the Legislature states that it is designed to take advantage of the constitutional power of the state of New York to subject
non-residents to personal jurisdiction when they commit acts within the state.
In the original draft, subparagraph 2 allowed jurisdiction to be based upon tortious acts within the state only if
the acts resulted in physical injury to person or property. This limitation, not in the Illinois statute, was added to
exclude libel, slander and similar actions not involving physical injury. An excluded action, however, would
have been within subparagraph 1 if it arose from the defendant's transaction of business within the state. In the
final draft, the exception was more narrowly drawn using, as stated in the Fifth Report, the language found in §
218 of McKinney's General Business Law which has recently been adopted.
While New York had a number of statutes dealing with submission to jurisdiction by non-residents in specific
situations, it did not have a general statute. It is clear, comments the Second Report, that the requirement of doing business within the state, presently found both in the cases in respect to foreign corporations not specifically
authorized to do business in New York by compliance with § 210 of McKinney's General Corporation Law and
in former civil practice act § 229--b (nonresident individual doing business within the state), is not essential to
the constitutional exercise of personal jurisdiction. In addition to Illinois, other states have enacted statutes to
take advantage of their constitutional power under the leading case of International Shoe Co. v. Washington, 66
S.Ct. 154, 326 U.S. 310, 90 L.Ed. 95 (1945).
On December 16, 1957, in McGee v. International Life Ins. Co., 78 S.Ct. 199, 355 U.S. 220, 2 L.Ed.2d 223
(1957), the court sustained the acquisition of in personam jurisdiction by a California court over a nonresidential insurer who had offered to insure through the mails and who had been served without the state by registered mail. Summarizing the rationale of changing concepts of in personam jurisdiction, the court stated:
“Looking back over this long history of litigation a trend is clearly discernable toward expanding the permissible
scope of state jurisdiction over foreign corporations and other non-residents. In part this is attributable to the
fundamental transformation of our national economy over the years. Today many commercial transactions touch
two or more States and may involve parties separated by the full continent. With this increasing nationalization
of commerce has come a great increase in the amount of business conducted by mail across state lines. At the
same time modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity.”
The intention is, continues the Second Report, to broaden the bases of jurisdiction. Specific provisions do not
supersede the general provisions of § 301 of this section. The latter remain to govern cases for which no specific
provision is made.
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This section largely eliminates the service upon a public officer, such as the Secretary of State. A method of service must give “reasonable assurance that the notice will be actual.” International Shoe Co. v. Washington, 66
S.Ct. 154, 160, 326 U.S. 310, 320, 90 L.Ed. 95 (1945). For example, personal service without the state is actually more effective in giving notice than is service upon the Secretary of State and a mailing of the summons by
him.
Subd. (b) is new, and was added to clarify the limited nature of the personal jurisdiction obtained under subdivision (a).
Official Reports to Legislature for this section:
2nd Report Leg.Doc. (1958) No. 13, p. 38.
5th Report Leg.Doc. (1961) No. 15, p. 66.
6th Report Leg.Doc. (1962) No, 8, p. 103.
SUPPLEMENTARY PRACTICE COMMENTARIES
by Vincent C. Alexander
2013
C302:4. Commission of Acts “Through an Agent.”
The main text, at page 164, notes that an out-of-state defendant can be subjected to personal jurisdiction when a co-conspirator of the defendant commits a tortious act in New York and the claim arises
out of such tortious act. A conspiracy, of course, is a specialized type of agency. The Appellate Division, First Department, in Lawati v. Montague Morgan Slade Ltd., 2013, 102 A.D.3d 427, 428, 961
N.Y.S.2d 5, 7 (1st Dep't), applied the conspiracy theory in accordance with a three-part test devised
by the federal district court in Best Cellars Inc. v. Grape Finds at Dupont, Inc., S.D.N.Y.2000, 90
F.Supp.2d 431, 446. That test posits that, for purposes of acquiring long-arm jurisdiction, “[t]he requisite relationship between the defendant and its New York co-conspirators is established by a
showing that (a) the defendant had an awareness of the effects in New York of its activity; (b) the
activity of the co-conspirators in New York was to the benefit of the out-of-state conspirators; and (c)
the co-conspirators acting in New York acted at the direction or under the control, or at the request of
or on behalf of the out-of-state defendant.” (Internal quotation marks omitted). The Appellate Division also accepted another federal court's slightly broader definition of the third prong of the Best
Cellars test to include an out-of-state defendant who “has knowledge” of the New York acts of his
co-conspirators. See Dixon v. Mack, S.D.N.Y.1980, 507 F.Supp. 345, 351-52.
In Lawati, the tortious acts underpinning the conspiracy, fraud involving plaintiffs' investments, were
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committed in New York by a defendant that acted here “through a virtual office.” The plaintiffs alleged that one Rigby, an out-of-state co-defendant, was a conspirator who acted under the control of
the New York-based tortfeasor. Rigby communicated with the plaintiffs to reassure them that their investments were safe, that the New York-based tortfeasor would soon be paying redemptions and that
he was in touch with the New York office. Rigby was subject to jurisdiction under the conspiracy rationale even though he was not the one who directed or controlled the original wrongdoing because
he acted with knowledge of the co-defendants' conspiratorial acts that had occurred in New York.
C302:5. Proving Jurisdictional Facts.
Williams v. Beemiller, Inc., 2012, 100 A.D.3d 143, 952 N.Y.S.2d 333 (4th Dep't), contains an analysis of a plaintiff's “sufficient start” showing that facts “may exist” to justify jurisdictional discovery in
support of an assertion of jurisdiction under CPLR 302(a)(3)(i) and/or (ii). The plaintiff alleged that
defendant, an out-of-state gun dealer, unlawfully sold large numbers of 9mm handguns at a gun show
in Ohio to a Buffalo gun trafficking ring that then distributed the guns to criminal elements in New
York, and that one of these guns was used in a 2003 shooting that injured the plaintiff. The dealer
moved to dismiss for lack of jurisdiction, arguing, in part, that plaintiff failed to satisfy CPLR
302(a)(3)(i)'s requirement that the defendant “derive[d] substantial revenue from goods used or consumed ... in [New York].” The affidavits on the motion averred that the defendant sold roughly 5,000
handguns during the 13-year period 1996 to 2009 and that a total of 181 such guns were sold to the
New York trafficking ring in 2000. The Appellate Division applied simple math and drew the inference that, assuming an even distribution of sales during the 13-year period (385 guns per year), defendant's 181 gun sales to the New York purchasers in 2000 amounted to approximately 47% of his
sales that year. This would be “substantial revenue.” The next issue was whether the guns sold to the
New York purchasers were “ ‘used or consumed’--i.e., possessed or discharged--in New York.”
Plaintiff made a “sufficient start” on this point by alleging that the purchaser was a New York resident who operated a gun trafficking ring in New York; alleging that the defendant sold between 140
and 180 guns to this resident, including the gun that injured the plaintiff, within a period of months in
2000; and citing a federal agency's report stating that the particular type of 9mm gun sold by defendant “was the most popular pistol used in crimes in Buffalo in 2000.” With respect to the “interstate
commerce” prong of CPLR 302(a)(3)(ii), the plaintiff alleged sufficient facts to show an agency or
“single enterprise” relationship between the defendant gun dealer and the manufacturer of the guns-which “admittedly” was engaged in interstate commerce--to justify further discovery on this point.
C302:6. Transaction of Business, In General.
Answering certified questions from the U.S. Court of Appeals for the Second Circuit, the New York
Court of Appeals has determined that a foreign bank's “frequent use” of a correspondent account with
a New York bank constitutes a “transaction of business in New York.” Licci v. Lebanese Canadian
Bank, SAL, 2012, 20 N.Y.3d 327, 960 N.Y.S.2d 695, 984 N.E.2d 893. The “repeated use” of a New
York correspondent account for the transfer of funds--“in effect, a ‘course of dealing’ ... --show[s]
purposeful availment of New York's dependable and transparent banking system, the dollar as a
stable and fungible currency, and the predictable jurisdictional and commercial law of New York and
the United States.” Id. at 339, 960 N.Y.S.2d at 702, 984 N.E.2d at 900. Although the foreign bank's
maintenance of such an account, standing alone, is not enough of a transactional act to qualify, frequent use of the account is sufficient.
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The court distinguished Amigo Foods Corp. v. Marine Midland Bank--New York, 1978, 61 A.D.2d
896, 402 N.Y.S.2d 406 (1st Dep't), affirmed , 1979, 46 N.Y.2d 855, 414 N.Y.S.2d 515, 387 N.E.2d
226, where one “adventitious” transfer of funds through a New York correspondent account at the
direction of a third party did not amount to a transaction of business in New York by the foreign account-holder. That was “coincidental,” rather than “purposeful,” conduct. Licci, supra,20 N.Y.2d at
338-39, 960 N.Y.S.2d at 702, 984 N.E.2d at 900. The Court cautioned that “determining in an individual case whether a foreign bank's maintenance and use of a correspondent account is purposeful or
coincidental may often prove more difficult than was the case in Amigo Foods.” Perhaps the Court
was leaving open the door for circumstances in which a single wire transfer through a New York correspondent bank may qualify as a sufficient purposeful transaction of business. In any event, the
Court seems to have adopted a general rule that “frequent use” of such an account is a transaction of
business within the meaning of CPLR 302(a)(1). The plaintiffs in Licci met this standard because it
alleged “dozens” of transfers of money through the New York correspondent account.
Determining the existence of a transaction of business in New York, of course, is only the first part of
the analysis under CPLR 302(a)(1). The plaintiff's cause of action must arise from the transaction,
which it did in this case, as discussed in this year's Commentary C302:8, below.
C302:8. Cause of Action Must Arise From the Transaction of Business.
As indicated on pages 182-84 of the main text of this Commentary, showing a “substantial relationship” between a personal injury claim and the defendant's transaction of business in New York is often a challenging endeavor. In Licci v. Lebanese Canadian Bank, SAL, 2012, 20 N.Y.3d 327, 960
N.Y.S.2d 695, 984 N.E.2d 893, however, the victims of terrorist rocket attacks committed abroad successfully met the requisite standard by alleging that their claims against a foreign bank for aiding and
abetting the attacks arose from the bank's frequent use of a New York correspondent bank account to
facilitate the funding of the organizations that perpetrated the attacks.
The foreign bank, Lebanese Canadian Bank (LCB), headquartered in Beirut, provided “dozens” of
million-dollar wire transfers through its New York correspondent on behalf of the Shahid Foundation
(Shahid), an entity that allegedly served as the “financial arm” of the terrorist organization Hizballah.
LCB allegedly knew that these multiple wire transfers supported and enabled Hizballah's terrorist
activity, which included the rocket attacks that injured the plaintiffs. (The plaintiff's various claims
were based on violations of U.S. anti-terror legislation and Israeli statutory obligations.)
The Court of Appeals held, on certified questions from the Second Circuit, that LCB's frequent use of
its correspondent account to effectuate multiple wire transfers on behalf of Shahid was a transaction
of business in New York (see this year's Commentary C302:6, above), and that the plaintiffs had
shown the required substantial relationship between this banking transaction and the claims sued
upon. The Court stressed that the “arises from” branch of the CPLR 302 inquiry “varies according to
the nature and elements of the particular causes of action pleaded.” Here, the statutory duties that
LCB allegedly owed to the plaintiffs were breached when it “again and again” used the New York
bank account “in support of Shahid and allegedly shared terrorist goals.” True, not all elements of the
cause of action were related to the bank transactions, and the specific harm the plaintiffs suffered was
from rockets. But the Court concluded with the observation that “CPLR 302(a)(1) does not require
that every element of the cause of action pleaded must be related to the New York contacts; rather,
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where at least one element arises from the New York contacts, the relationship between the business
transaction and the claim asserted supports specific jurisdiction under the statute.” 20 N.Y.3d at 341,
960 N.Y.S.2d at 703, 984 N.E.2d at 901. The facts of the Licci case are unique, but the Court's concluding point is a helpful guideline for future analysis of the “arising under” element of CPLR
302(a)(1).
C302:10. Tortious Act in New York, In General.
This year's Commentary C302:4, above, describes recent caselaw on the quasi-agency theory by
which jurisdiction can be asserted over an out-of-state defendant who is treated as having acted in
New York through the tortious activity of a co-conspirator.
C302:13. Subset (ii): Foreseeability Plus Interstate or International Commerce.
The foreseeability prong of CPLR 302(a)(3)(ii) was satisfied in Halas v. Dick's Sporting Goods,
2013, 105 A.D.3d 1411, 964 N.Y.S.2d 808 (4th Dep't), where the manufacturer of a hunter's tree
stand sold its product through an exclusive distributorship with Dick's Sporting Goods, which has retail stores in 36 states, including New York. Although the product was not designed specifically for
use in New York, the manufacturer could have reasonably foreseen, as a result of its distributorship
arrangement, “that its product would have an impact in any state where Dick's distributed the product,
including New York.” With respect to the element of substantial revenue from interstate commerce,
the plaintiff made a “sufficient start” to justify jurisdictional discovery on the issue. See also this
year's Commentary C302:5, above.
2012
CPLR 302(a)(2) and (3) exclude defamation claims from the “tortious act” categories of long-arm jurisdiction. The ability of a plaintiff to obtain long-arm jurisdiction pursuant to CPLR 302(a)(1) for a
defamation claim depends both on the sufficiency of the defendant's New York transactional activity
and on the strength of the nexus between that activity and the defamatory act. The Court of Appeals
recently observed in SPCA of Upstate New York, Inc. v. American Working Collie Ass'n, 2012, 18
N.Y.3d 400, 940 N.Y.S.2d 525, 963 N.E.2d 1226, that if the transactional activity in New York is
thin, the need for a strong and direct connection between the transaction and the defamation increases. Id. at 404, 940 N.Y.S.2d at 528, 963 N.E.2d at 1229 (“where the contacts are ... circumscribed and not directly related to the defamatory statement, defendants have prevailed”). On the facts
at issue, a 4-3 majority of the court found that both the necessary New York contacts and a nexus to
the claim were lacking.
The New York plaintiff, a local branch of the SPCA, rescued several mistreated collies, and shortly
thereafter received a phone call from the president of a collie support organization with an offer of assistance with the animals. The president called from Vermont, where she lived. The president then
sent the plaintiff a donation in the amount of $1,000. The president made another call from Vermont
to say that the defendant had purchased leashes and collars for the dogs, and she arranged to visit
plaintiff's New York facility to deliver these items. This visit lasted less than one hour. In a third call,
the president discussed the appropriate care for one of the collies, and she made a second visit to
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plaintiff's facility to check on the collies, the duration of which was an hour and a half. Within a week
of this second visit, the president, in Vermont, began generating a series of writings, posted on defendant's website, which allegedly called into question the quality of plaintiff's facility and the condition of the dogs. During the time frame in question, volunteers on defendants' behalf helped plaintiff
care for the dogs.
In the majority's view, the New York activities of the defendants were “quite limited,” including the
“important” fact that the statements were neither written in New York nor targeted towards a New
York audience. Additionally, the relationship between the defendants' New York activity and the defamation was too weak. The defendant's president did not come to New York for the purpose of engaging in publication activity. The defamatory statements were simply based on observations that she
coincidentally made in New York. A different result might have obtained had the defendants placed
the dogs under plaintiff's care or if the defamatory statements had been made about the way in which
plaintiff treated defendants' volunteers. The court indicated that CPLR 302(a)(1) should be applied
with sensitivity to the policy considerations underlying the exclusion of defamation claims from subdivisions (2) and (3): “[T]he Legislature has manifested its intention to treat the tort of defamation
differently from other causes of action and we believe that, as a result, particular care must be taken
to make certain that nondomiciliaries are not haled into court in a manner that potentially chills free
speech without an appropriate showing that they purposefully transacted business here and that the
proper nexus exists between the transaction and the defamatory statements at issue.” 18 N.Y.3d at
405-06, 940 N.Y.S.2d at 529, 963 N.E.2d at 1230.
The dissent, however, said “the majority's ‘free speech' concern is illusory in the context of this
case,” because the defendant's activity in New York involved much more than the mere utterance of a
libel. The defendants' activities in New York were purposeful and closely connected to the defamation. The complaint raised an inference that the defendants entered New York for the purpose of promoting the well being of collies, the very subject of the statements constituting the alleged libel.
C302:9. Contract to Supply Goods or Services, In General.
The court in LHR, Inc. v. T-Mobile USA, Inc., 2011, 88 A.D.3d 1301, 930 N.Y.S.2d 731 (4th Dep't),
gave a reasonable reading to the “goods-and-services” prong of CPLR 302(a)(1) by holding that an
out-of-state creditor's sale of its delinquent customer accounts to the New York plaintiff, a debt collection agency, accompanied by a requirement that the records pertaining to such accounts be delivered to plaintiff in New York, constituted a contract to supply goods or services in New York.
Thus, a New York basis of jurisdiction existed for an action alleging breach of that contract for failing to supply the necessary records to enable the plaintiff to collect on the unpaid debts.
Another application of the “goods-and-services prong” of CPLR 302(a)(1) resulted in jurisdiction
over an out-of-state medical malpractice insurer that issued a policy covering professional liability
risks for a New York hospital and its employees and contract physicians. Constantine v. Stella Maris
Insurance Co., 2012, 97 A.D.3d 1129, 948 N.Y.S.2d 802 (4th Dep't). This was an action by one of the
covered physicians for a declaratory judgment that the insurer was obligated to indemnify him in a
malpractice case.
2011
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C302:2. Limits of Due Process: Supreme Court Cases.
In a splintered decision, the Supreme Court recently rejected the constitutionality of the “stream of
commerce” category of long-arm jurisdiction. J. McIntyre Machinery, Ltd. v. Nicastro, 2011, 131
S.Ct. 2780. The plaintiff was injured in New Jersey by a metal shearing machine made in England by
the defendant foreign manufacturer. The defendant sold the type of machine in question to an independent U.S. distributor that, in turn, sold the product throughout the United States. The defendant's
only U.S. marketing consisted of its attendance at trade shows in a few states other than New Jersey.
The record suggested that only one of the defendant's machines--the one that injured the plaintiff--had
been sold in New Jersey. On these facts, the New Jersey Supreme Court upheld jurisdiction on the
ground that suit was brought in the state in which the accident occurred and the defendant “knew or
reasonably should have known ‘that its products are distributed through a nationwide distribution system that might lead to those products being sold in any of the fifty states.’ ” Id. at 2786.
A plurality of four Justices, in an opinion written by Justice Kennedy (joined by Chief Justice Roberts
and Justices Scalia and Thomas), held that the test applied by the New Jersey court did not protect the
due process rights of the defendant. Although the defendant may have directed its sales to the United
States as a whole, Justice Kennedy wrote that “personal jurisdiction requires a forum-by-forum, or
sovereign-by-sovereign analysis.” Thus, the question is whether the defendant purposefully availed itself of the privilege of conducting activity in a particular state, here New Jersey, and “[a]t no time did
[defendant] engage in any activities in New Jersey that reveal an intent to invoke or benefit from the
protection of its laws.” Id. at 2791. In another passage of the plurality opinion, Justice Kennedy
wrote, “The defendant's transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant
might have predicted that its goods will reach the forum state.” Id. at 2788. A defendant's purposeful
availment must be measured by its forum-directed acts, not its expectations.
In a concurring opinion, Justice Breyer (joined by Justice Alito) agreed that the stream of commerce
doctrine as applied by the New Jersey Supreme Court did not comply with due process because it ignored the requirement that the defendant have a relationship with the particular forum, and the doctrine could indiscriminately subject small sellers to jurisdiction in distant states. Justice Breyer,
however, refused to join in the plurality's “strict” intent-based test of forum contact because of its uncertain application to internet commerce. Justice Breyer found it sufficient to decide the case, which
involved conventional marketing and sales, on the basis of existing precedent. He “would not go further” because the Court, “in separate opinions [in Asahi] has strongly suggested that a single sale of a
product in a State does not constitute an adequate basis for asserting jurisdiction over an out-of-state
defendant, even if that defendant places his goods in the stream of commerce, fully aware (and hoping) that such a sale will take place.” 131 S.Ct. at 2792.
Justice Ginsburg's dissenting opinion (joined by Justices Sotomayor and Kagan) endorsed the stream
of commerce concept because the defendant had deliberately “targeted” its sales toward the entire
United States: “Given [the defendant's] endeavors to reach and profit from the United States market
as a whole, [plaintiff's] suit ... has been brought in a forum entirely appropriate for the adjudication of
his claim.” 131 S.Ct. at 2797. In Justice Ginsburg's view, the defendant's purposeful availment of the
United States market was sufficient contact with the individual state in which a sale and injury occurred.
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Although a majority of the Court has not yet settled upon an articulation of the test for due process in
the context of actions against out-of-state sellers of injury-causing goods, it now seems all but certain
that the “stream of commerce” doctrine is a dead letter.
Nicastro also casts serious doubt on the precedential value of Kernan v. Kurz-Hastings, Inc.,
C.A.N.Y.1999, 175 F.3d 236, 242-44, discussed on pp. 208-09 of the main volume. In Kernan, the
Second Circuit held that a foreign manufacturer that entered into an exclusive sales agreement with a
Pennsylvania company to sell the manufacturer's products in the United States had engaged in a sufficiently purposeful, albeit indirect, effort to serve the New York market. Thus, the manufacturer's due
process rights, the court held, were not violated by the Pennsylvania company's third-party action in
New York for contribution based on injuries to a user of the product in New York. Although this was
a third-party claim between manufacturer and distributor, rather than a claim by an injured consumer,
the court's reasoning is at odds with the plurality and concurring opinions in Nicastro.
C302:7. Transacting Business by Phone, Mail and Electronic Means.
Sales activity conducted by means of the Internet served as the predicate for long-arm jurisdiction in
the trademark infringement case of Chloé v. Queen Bee of Beverly Hills, LLC, C.A.N.Y.2010, 616
F.3d 158. One of the defendants in the case, an individual employee of Queen Bee, an Alabama company that engaged in operations in California and Alabama, allegedly sold a counterfeit designer
handbag via the company's website to a New York purchaser. The company's interactive website
offered various manufacturers' handbags for sale, including those made by plaintiff Chloé, and
provided for purchases made by credit card. The handbag in question was purchased by a New York
investigator by this means, and the bag was shipped to New York with a label bearing Queen Bee's
Beverly Hills address, which was the same address as defendant's personal office.
The individual defendant was subject to jurisdiction pursuant to the transaction of business branch of
CPLR 302(a)(1) because he coordinated the shipping of the handbag in question as part of a business
operation that was responsible for over 50 separate shipments of merchandise to New York, and the
cause of action was substantially related to the defendant's acts. The court indicated that defendant's
“single act” of selling the handbag in question “might well be sufficient” to subject him to jurisdiction under CPLR 302(a)(1), 616 F.3d at 170, but it chose to view the matter in the overall context of
Queen Bee's “extensive business activity involving New York.” Queen Bee's sales activity was imputed to the defendant under New York's liberal jurisdictional agency doctrine, which requires only
the exercise of “some control” by an employee over his employer's activity in the particular matter.
See Kreutter v. McFadden Oil Corp., 1988, 71 N.Y.2d 460, 467, 527 N.Y.S.2d 195, 199, 522 N.E.2d
40, 44; Commentary C302:4. Here, the defendant “shared in the profits from the bags Queen Bee
sold, had joint access to the Queen Bee bank account, used Queen Bee revenue to pay his [personal]
Beverly Hills rent, and shared in the decision-making and execution of the purchase and sale of handbags.” 616 F.3d at 169. Thus, defendant's “single act of shipping an item into New York and his employer's extensive business activity involving New York--activity which may be imputed to
[defendant]”--demonstrated purposeful availment of the privilege of conducting activity in New York
in a way that invoked the benefits of New York law. This conduct, in its “totality,” satisfied both the
New York statute and due process.
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New York courts, as noted at pp.185-86 of the main volume of this Commentary, have held that the
length of time between a defamatory statement and the New York transaction to which it relates can
have a bearing on the question whether the claim has a sufficient relationship to the defendant's New
York activity. The federal district court in McNamee v. Clemens, E.D.N.Y.2011, 762 F.Supp.2d 584,
however, held that a seven-year time span was “of no moment” where former Yankees pitching star
Roger Clemens made defamatory statements in 2007-08 about Brian McNamee, a sports trainer with
whom Clemens had a contractual relationship in New York for training services performed largely in
New York between 1999 and 2001. 762 F.Supp.2d at 597. The defendant's New York transactional
activity with McNamee, a New York domiciliary, was of substantial duration and quality, and the defamatory statements at issue, i.e., Clemens's accusations that McNamee was a liar with respect to his
steroid injections of Clemens during training sessions, arose directly out of that activity. Thus, longarm jurisdiction under CPLR 302(a)(1) supported McNamee's defamation claim.
C302:11. Tortious Injury in New York, In General.
As noted in the main text of this Commentary, the usual situs of economic injury caused by a commercial tort, for the purpose of applying CPLR 302(a)(3), is the place where the plaintiff lost sales or
customers. The fact that the plaintiff happens to be domiciled or incorporated in New York does not
alone create injury in New York: the plaintiff's status as a New Yorker is usually too remote from the
financial injury caused by the loss of out-of-state sales. The Court of Appeals reached a different result, however, in the narrow context of a New York copyright owner's infringement claim based on the
uploading of printed literary work onto the Internet. Penguin Group (USA) Inc. v. American Buddha,
2011, 16 N.Y.3d 295, 921 N.Y.S.2d 171, 946 N.E.2d 159. In answer to a question certified by the
Second Circuit Court of Appeals, the state's highest court held that injury occurs in New York in a
case of digital piracy if the copyright holder is located in New York.
Two factors led to the court's decision. First, the court recognized the uniqueness of the Internet in
causing immediate and widespread injury as a result of the ability of internet users everywhere to
have access to digitally pirated works: “[I]t is difficult, if not impossible, to correlate lost sales to a
particular geographic area.” Second, copyright owners have a “unique bundle of rights” that provide
incentives to authors to publish or write. Such incentives are lost or significantly diminished when infringement occurs. Thus, “the injury to a New York copyright holder, while difficult to quantify, is
not as remote as a purely indirect financial loss due to the broad spectrum of rights accorded by copyright law.”
The situs-of-injury issue having been decided, the Second Circuit Court of Appeals then remanded
the case to the district court to determine whether the other elements of CPLR 302(a)(3)(ii) were met
and whether the assertion of jurisdiction would comport with due process. 640 F.3d 497, 500-01.
The court's decision on the situs of injury, while extremely significant for the many authors and creators located in New York, is not likely to have precedential impact outside the context of copyright infringement via the Internet. Nevertheless, it represents a significant adaptation of traditional jurisdictional law to the modern era of internet communication and conduct.
C302:17. “Libel Terrorism Protection Act.”
The type of speech-inhibiting conduct targeted by CPLR 302(d) now has a federal counterpart in the
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“Securing the Protection of our Enduring and Established Constitutional Heritage Act” (the
“SPEECH Act”), signed into law on August 10, 2010 and codified at 28 U.S.C.A. §§ 4101-4105. The
federal legislation makes a foreign defamation judgment unenforceable in any state or federal court if
the law applied by the foreign court fails to provide as much free-speech protection as that afforded
by the first amendment. If diversity of citizenship exists, any action brought in a state court to enforce
a foreign defamation judgment may be removed to federal court by any defendant and without regard
to the amount in controversy. Furthermore, a “United States person” (defined as a U.S. citizen; permanent resident alien; any alien residing in the U.S. at the time the speech was researched, prepared
or disseminated; or any business entity incorporated in the U.S. or having its principal place of business here) against whom a foreign defamation judgment has been entered may bring a declaratory
judgment action in federal court on the ground that the judgment is “repugnant” to the U.S. Constitution and therefore unenforceable. 28 U.S.C.A. § 4104(a). In such federal court action, service of process may be served in any judicial district of the United States “where the defendant may be found,
resides, has an agent or transacts business.” Id. § 4101(b).
Oddly, the federal statute provides only for nationwide long-arm jurisdiction even though some of the
defendant-judgment creditors within the scope of the Act will be persons living abroad. CPLR 302(d),
in contrast, would permit service in a foreign country (see CPLR 313) if the requirements of the New
York statute and due process are satisfied. In some cases, therefore, suit in New York state court may
be a more efficacious remedy for a New York author than suit in federal court. On the other hand, it
might be possible for a federal court sitting in New York to apply the substantive provisions of the
federal Act and still utilize the potentially broader jurisdictional reach of CPLR 302(d). See
Fed.R.Civ.P. 4(k)(1)(A) (federal district court may use bases of personal jurisdiction available to
courts of general jurisdiction in state where district court is located).
PRACTICE COMMENTARIES
by Vincent C. Alexander
In General.
C302:1. Background of Long-Arm Jurisdiction.
C302:3. General Considerations in Applying CPLR 302(a).
Subdivision (a)(1): Transaction of Business in New York, or Contract to Supply Goods or Services in New
York.
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C302:8. Cause of Action Must Arise From Transaction of Business.
Subdivision (a)(2): Tortious Act Within the State.
Subdivision (a)(3): Tortious Act Outside New York Causing Injury Within the State.
C302:12. Subset (i): Ongoing Activity in the State.
Subdivision (a)(4): Ownership, Use or Possession of Real Property.
C302:14. Real Property Actions, In General.
Subdivision (b): Matrimonial Actions and Family Court Proceedings.
C302:15. Matrimonial Long-Arm Jurisdiction, In General.
Subdivision (c): Restricted Appearance.
C302:16. Restricted Appearance.
Subdivision (d): “Libel Terrorism Protection Act.”
In General.
C302:1. Background of Long-Arm Jurisdiction.
New York's long-arm statute, CPLR 302, was designed to take advantage of the “minimum contacts”
theory of personal jurisdiction formulated by the Supreme Court in International Shoe Co. v. Washington, 1945, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. From the nineteenth century to the middle of the
twentieth, prevailing doctrine held that due process did not permit state courts to exercise personal jurisdiction over nondomiciliaries and foreign corporations unless they were present within the state at the
time of commencement of the action. See Practice Commentaries on CPLR 301, at C301:1 and C301:2,
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supra. In New York, a corporation's presence was determined by whether it was “doing business” within the state's borders. See Practice Commentaries on CPLR 301, at C301:8, supra. A constitutionally acceptable alternative to presence was “consent,” one form of which was a foreign corporation's appointment of the Secretary of State as an agent for service of process as part of the licensing procedure for
the doing of business in New York. See Practice Commentaries on CPLR 301, at C301:6, supra. The
concept of “implied consent” was used to justify statutes by which nondomiciliaries were deemed to
have appointed the Secretary of State as agent to receive process for suits based on certain in-state
activity, such as negligent driving (see, e.g., N.Y.Veh. & Traf.Law § 253). Hess v. Pawloski, 1927, 274
U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091.
International Shoetook a fresh look at the requirements of due process. The Court characterized the
presence doctrine, as applied to foreign corporations, as merely “symbolic” of the level of corporate
activity deemed to be sufficient to satisfy due process. Similarly, implied consent was said to be a
“legal fiction” that was justified by the nature of the acts in question. The Court then proceeded to liberate due process from the straitjackets of presence and consent and held that “due process requires only
that in order to subject a defendant to a judgment in personam, if he be not present within the territory
of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not
offend ‘traditional notions of fair play and substantial justice.’ ” 326 U.S. at 315, 66 S.Ct. at 158, 90
L.Ed. at 102. The rationale was one of quid pro quo: “[T]o the extent that a corporation exercises the
privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that
state. The exercise of that privilege may give rise to obligations, and, so far as those obligations arise
out of or are connected with the activities within the state, a procedure which requires the corporation to
respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.” Id. at 319,
66 S.Ct. at 160, 90 L.Ed. at 104.
The Court made clear that the new minimum contacts theory embraces traditional scenarios in which a
corporation's activity may be so systematic and continuous as to justify suits on claims that have no relation to the activity (the “doing business” line of cases), as well as more far-reaching cases in which
“some single or occasional acts ... because of their nature and quality and the circumstances of their
commission, may be deemed sufficient to render the corporation liable to suit.” Id. at 318, 66 S.Ct. at
159, 90 L.Ed. at 103. It is fair to say that International Shoe's endorsement of the “single-act” jurisdictional basis revolutionized the law of civil procedure.
The single-act concept was reinforced a few years later in McGee v. International Life Ins. Co., 1957,
355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223, where the assertion of jurisdiction pursuant to a California
statute was upheld over a foreign insurer in an action alleging breach of an insurance contract with a
California resident. The defendant's only contact with California was the mailing of one policy of insurance to the plaintiff's decedent in California and the receipt of premiums from the insured for the next
two years. “It [was] sufficient for purposes of due process that the suit was based on a contract which
had substantial connection with [the] State.” Id. at 223, 78 S.Ct. at 201, 2 L.Ed.2d at 226. Although the
defendant in McGee was a foreign corporation, the Court made clear that single-act jurisdiction was
equally applicable to “other nonresidents.” Id. at 222, 78 S.Ct. at 201, 2 L.Ed.2d at 226.
In the wake of International Shoe and McGee, so-called “long-arm” statutes proliferated among the
states to allow for the assertion of personal jurisdiction over out-of-state defendants--individuals and organizations of any type--whose in-state activity, even “some single or occasional act,” gives rise to the
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particular cause of action sued upon. The term “long-arm” is used to describe these statutes because
they contemplate service of process outside the state. See CPLR 313. Whereas the traditional jurisdictional bases of presence, domicile and doing business confer “general jurisdiction,” allowing the defendant to be sued on claims having no relation to the state (see Practice Commentaries on CPLR 301,
supra), long-arm statutes confer only “specific jurisdiction,” meaning that the cause of action must arise
out of the defendant's state-connected activity. See Burger King Corp. v. Rudzewicz, 1985, 471 U.S.
462, 472-73 & n.15, 105 S.Ct. 2174, 2182, 85 L.Ed. 528, 541.
The prevailing view is that an assertion of long-arm jurisdiction is dependent on the existence of a statute that authorizes it. In other words, the minimum contacts standard of due process is permissive, not
mandatory. Furthermore, a state is not required to provide for the assertion of long-arm jurisdiction to
the same extent that due process would allow. See generally Kevin M. Clermont, Civil Procedure: Territorial Jurisdiction and Venue 69-72 (1999). A few state statutes, such as that in California (Cal.Code
Civ.Proc. § 410.10), expressly provide that jurisdiction may be asserted to the full extent permitted by
due process. Most others, like CPLR 302, contain a list of specific state-directed activities that permit
the assertion of in personam jurisdiction only if the particular claim arises from one of the listed forms
of activity. The New York statute is limited to claims arising from transactions of business within the
state or contracts to supply goods or services here; tortious acts within the state; tortious acts outside the
state that cause injury in New York; and the ownership of real property in New York. CPLR
302(a)(1)-(4). A similar approach applies under CPLR 302(b) with respect to claims for monetary relief
in the matrimonial context. Recently, however, subdivision (d) was added to CPLR 302 to authorize
jurisdiction to the full extent permitted by the Constitution in the very limited context of actions to restrain the enforcement in New York of certain foreign judgments for defamation.
As will be seen repeatedly in the succeeding Practice Commentaries addressed to specific aspects of
CPLR 302, the New York statute does not always go as far as the Constitution permits. See Talbot v.
Johnson Newspaper Corp., 1988, 71 N.Y.2d 827, 829-30, 527 N.Y.S.2d 729, 731, 522 N.E.2d 1027,
1029. Not only do the categories of New York-related activity listed in CPLR 302 represent a closed
universe, the New York courts have not interpreted them as necessarily providing the same reach as
would be available under the Constitution. See, e.g., Feathers v. McLucas, 1965, 15 N.Y.2d 443, 458,
261 N.Y.S.2d 8, 19, 209 N.E.2d 68, 76 (CPLR 302, as originally enacted, did not provide for jurisdiction over a foreign corporation whose out-of-state tortious act caused injury in New York; proper inquiry was not whether Legislature constitutionally could provide for such jurisdiction but whether it
did, in fact, do so); Kramer v. Vogl, 1966, 17 N.Y.2d 27, 267 N.Y.S.2d 900, 215 N.E.2d 159 (CPLR
302, as originally enacted, did not provide for jurisdiction where claim against foreign seller arose
solely out of seller's shipment of goods to New York; fact that assertion of such jurisdiction might be
constitutionally permissible was irrelevant); Ehrenfeld v. Bin Mahfouz, 2007, 9 N.Y.3d 501, 851
N.Y.S.2d 381, 881 N.E.2d 830 (CPLR 302(a)(1) did not encompass actions against foreign defamation
plaintiffs who sought to curb the publication activities of authors in New York). Although the Legislature occasionally has amended CPLR 302 to allow for jurisdiction where the courts have denied it
(see Commentaries C302:9 and C302:11, and Commentary C302:17, below), such intervention has never been treated as a legislative signal that future applications of the statute should go to the limits of due
process.
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As discussed in the immediately preceding Commentary, the minimum contacts standard of due process
allows the states, through long-arm statutes such as CPLR 302, to assert personal jurisdiction over nondomiciliaries whose state-directed activities form the basis for the claims sued upon. The fact that a
plaintiff's case falls within a particular statutory grant of long-arm jurisdiction, however, is not the end
of the inquiry. The particular assertion of long-arm jurisdiction must not exceed the limits imposed by
the due process clause. Supreme Court cases subsequent to International Shoe and McGee (see Commentary C302:1, above) have charted these outer limits.
Hanson v. Denckla, 1958, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283, made clear that the minimum
contacts standard of jurisdiction has not completely erased state lines and that due process still requires
a meaningful affiliation between the defendant and the state in which he or she is sued: “[I]t is essential
in each case that there be some act by which the defendant purposefully avails itself of the privilege of
conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Id.
at 253, 78 S.Ct. at 1240, 2 L.Ed.2d at 1298. The same point was made in a slightly different way a few
years later in World-Wide Volkswagen Corp. v. Woodson, 1980, 444 U.S. 286, 100 S.Ct. 559, 62
L.Ed.2d 490, where the Court said that “the defendant's conduct and connection with the forum State
[must be] such that he should reasonably anticipate being haled into court there.... The Due Process
Clause ... gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not
render them liable to suit.” Id. at 297, 100 S.Ct. at 566-67, 62 L.Ed.2d at 501. Yet another variation of
the theme was provided in Burger King Corp. v. Rudzewicz, 1985, 471 U.S. 462, 105 S.Ct. 2174, 85
L.Ed.2d 528, where the Court said that long-arm jurisdiction is permissible “if the defendant has
‘purposefully directed’ his activities at residents of the forum ... and the litigation results from alleged
injuries that ‘arise out of or relate to’ those activities.” Id. at 472, 105 S.Ct. at 2182, 85 L.Ed.2d at 541.
A number of Supreme Court cases, aside from McGee, illustrate how assertions of jurisdiction based on
state-directed activity have satisfied the “purposeful availment” criteria. In Keeton v. Hustler Magazine,
Inc., 1984, 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790, jurisdiction in New Hampshire was upheld in
a libel case alleging that defendant's magazine, published out of state and distributed nationwide, including in New Hampshire, damaged plaintiff's reputation in that state. New Hampshire was said to
have an interest in providing a forum to redress the harm that flows from falsehoods directed to readers
within its borders, even if the subject of the falsehood is, as was the plaintiff in this case, a nonresident
of New Hampshire. Calder v. Jones, 1984, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804, another libel
case, allowed a California plaintiff to assert jurisdiction over the author and editor of an article that was
produced in Florida and published in a magazine whose nationwide circulation included California.
Aside from a few phone calls to California to obtain information for the article, the defendants' writing
and editorial activity occurred wholly in Florida. Nevertheless, their tortious acts were “expressly aimed
at California,” where they knew the article would have a harmful impact on the plaintiff. 465 U.S. at
789, 104 S.Ct. at 1487, 79 L.Ed.2d at 812. Compare Kulko v. Superior Court of California, 1978, 436
U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (in child support case brought in California, New York defendant's acquiescence in daughter's decision to live in California was not an act purposefully directed toward forum).
Burger King Corp. v. Rudzewicz,supra, upheld jurisdiction in Florida over Michigan residents who
breached their franchise agreement with a Florida corporation by failing to send contractually-required
payments to Florida. Although the defendant never traveled to Florida in connection with the franchise
Page 17
agreement, he “deliberately ‘reach[ed] out beyond’ Michigan and negotiated with a Florida corporation
for the purchase of a long-term franchise and the manifold benefits that would derive from affiliation
with a nationwide organization... Upon approval, he entered into a carefully structured 20-year relationship that envisioned continuing and wide-reaching contacts with Burger King in Florida.” 471 U.S. at
479-80, 105 S.Ct. at 2186, 85 L.Ed.2d at 545. Rudzewicz voluntarily accepted a long-term agreement
that explicitly allowed the franchisor to regulate his business from Miami, and he could foresee that his
breach of the franchise agreement would cause economic injury in Florida. The Court also took note of
the parties' contractual choice-of-law clause, requiring the application of Florida law to any dispute
arising from the contract. Although not enough by itself to confer jurisdiction, the choice-of-law provision was a relevant factor reinforcing defendant's “deliberate affiliation with the forum State and the
reasonable foreseeability of possible litigation there.” 471 U.S. at 482, 105 S.Ct. at 2187, 85 L.Ed.2d at
547.
An important passage in Burger King explains that the minimum contacts standard introduced in International Shoe is actually a two-part test. In addition to the existence of a claim arising from purposeful
forum-directed activity, the maintenance of the suit must not offend “traditional notions of fair play and
substantial justice.” 471 U.S. at 476-78, 105 S.Ct. at 2184-85, 85 L.Ed.2d at 543-44. The second half of
the analysis is intended to ensure the reasonableness of the particular assertion of jurisdiction. Even if
the defendant has a purposeful connection with the state, consideration of the following five factors
may lead the court to conclude that the assertion of jurisdiction is unreasonable: (1) the burden on the
defendant of litigating away from home; (2) the interest of the forum state; (3) the plaintiff's interest in
obtaining relief; (4) the interest of the interstate judicial system in efficient dispute resolution; and (5)
the shared interest of the several states in furthering fundamental social policies. The defendant has the
burden of demonstrating that such considerations make the exercise of jurisdiction unreasonable. The
defendant in Burger King failed to meet this burden.
The limits of due process are still uncertain in tort actions against manufacturers and distributors of
products that have caused injury in the forum state. The Supreme Court first addressed the problem in
World-Wide Volkswagen Corp. v. Woodson, 1980, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490. The
Court held that Oklahoma exceeded due process by asserting jurisdiction over a New York-area wholesaler and retail dealer who sold an automobile in New York that was involved in an accident in Oklahoma. The New York buyers, en route to Arizona, were allegedly injured as a result of defective
design of the car's fuel tank. The record indicated that neither the wholesaler nor dealer had ever made
any sales, or performed any services or solicited any business, in Oklahoma; nor had they purchased
any advertisement in any media likely to reach Oklahoma.
Nevertheless, the Oklahoma courts premised jurisdiction on a long-arm statute that allowed jurisdiction
for a claim arising from a tortious injury in Oklahoma caused by a defendant who “derives substantial
revenue from goods used ... in [the] state.” (See CPLR 302(a)(3)(i)). The Supreme Court held that application of the statute in this case violated due process because of the “total absence” of the necessary
“contacts, ties or relations” between the defendants and the state of Oklahoma. Plaintiffs argued that the
sale of a car, by its nature a mobile product, made injuries in Oklahoma foreseeable. But the mere foreseeability that a product may find its way into the forum state, said the Court, is not enough to satisfy
due process. The type of foreseeability that is “critical to due process analysis” is that which results
from such purposeful activity directed toward the forum state that the defendant can “reasonably anticipate being haled into court there.” 444 U.S. at 297, 100 S.Ct. at 567, 62 L.Ed.2d at 501. Here it was
Page 18
the buyers who took the car to Oklahoma. Such “unilateral activity” by persons who claim a relationship with the defendant “cannot satisfy the requirement of contact with the forum State.” Id. at 298, 100
S.Ct. at 567, 62 L.Ed.2d at 502. Due process requires a showing that the product made its way to the
forum state “from the efforts of the manufacturer or distributor to serve directly or indirectly, the market for its products in other States.” Id. at 297, 100 S.Ct. at 567, 62 L.Ed.2d at 501.
The additional argument was proffered that the defendants derived economic benefits from Oklahoma
because cars sold in New York were capable of being used in Oklahoma, thanks in part to the nationwide chain of Volkswagen service centers. The wholesaler and dealer, however, were independent of
the relevant Volkswagen corporations and derived no direct revenue from such service centers.
Whatever financial benefits the defendants reaped from the existence of service centers in Oklahoma
were “collateral” and “too attenuated” to qualify as a constitutionally sufficient contact.
The defendants in World-Wide were essentially local sellers who made no effort to serve the Oklahoma
market. What if the defendant is a manufacturer or national distributor who delivered a product into the
“stream of commerce” knowing that it would likely be sold in the state where it caused an injury? Is
this sufficient purposeful conduct directed toward the forum? The Supreme Court gave no definitive answer to this question when it came before the Court in Asahi Metal Industry Co. v. Superior Court of
California, Solano County, 1987, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92.
The Asahi case arose out of an accident in California caused by a defective tire that exploded on the
plaintiff's motorcycle. Plaintiff brought an action in California against the manufacturer of the tire, a
Taiwanese corporation, which in turn asserted a third-party claim for indemnity against Asahi, the Japanese manufacturer of a component part. Asahi made tire valve assemblies in Japan and sold them to
the tire manufacturer in Taiwan, where the tires were completed and then sold worldwide, including in
California. Plaintiff settled with the tire manufacturer, leaving only the latter's indemnification claim
against Asahi.
Writing for herself and three others, Justice O'Connor held that the purposeful-act component of the due
process test was not satisfied with respect to Asahi because a manufacturer's mere placement of its
product into the stream of commerce with an awareness that it will travel into the forum state is not
enough. Something more is required, she said, to “indicate an intent or purpose to serve the market in
the forum state.” Id. at 112, 107 S.Ct. at 1032, 94 L.Ed.2d at 104. The following examples of sufficient
“additional conduct” were offered: “[D]esigning the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum
State, or marketing the product through a distributor who has agreed to serve as the sales agent in the
forum State.” Id. at 112, 107 S.Ct. at 1032, 94 L.Ed.2d at 104. Only then is it reasonable to anticipate
suit in the state where injury occurs.
Justice Brennan's opinion, in which three other Justices joined, rejected an “awareness-plus” standard,
and concluded that the purposeful availment component of the minimum contacts test was satisfied by
Asahi's knowledge that tires containing its component were being sold in California. It is sufficient,
Justice Brennan wrote, that a product has been placed into “the regular and anticipated flow of products
from manufacture to distribution to retail sale.” Id. at 117, 107 S.Ct. at 1034, 94 L.Ed.2d at 107.
Another alignment of Justices, in a third opinion, suggested that sufficient state-directed contacts exis-
Page 19
ted in the instant case even under Justice O'Connor's “awareness-plus” standard.
The Asahi case was ultimately decided, however, by an eight-Justice opinion, holding that the second
half of the minimum contacts test was not satisfied, i.e., even if there was purposeful availment, the assertion of jurisdiction over Asahi was unreasonable. Id. at 113-16, 107 S.Ct. at 1033-34, 94 L.Ed.2d at
105-07. Applying the five reasonableness factors identified in prior cases, the Court found that litigation in California would impose a “severe burden” on the Japanese defendant, who would be subjected
to a “foreign legal system.” Weighed against this burden were the minimal interests of the plaintiff and
the forum state in resolving, in California, an indemnification dispute that originated in Asia between
two foreign manufacturers. Finally, the interests of the several states in efficient judicial procedure and
the advancement of substantive policies were weak because of the international nature of the dispute.
Since Asahi, the Supreme Court has not revisited the minimum contacts issue in the products liability
context. Lower federal courts and state courts have divided over the question whether the appropriate
stream-of-commerce standard is that of “awareness plus” or “mere awareness.” The New York Court of
Appeals sidestepped the issue when a products liability case was before it in LaMarca v. Pak-Mor Mfg.
Co., 2000, 95 N.Y.2d 210, 713 N.Y.S.2d 304, 735 N.E.2d 883. Without mentioning the divided views
of the Supreme Court in Asahi, the Court of Appeals found abundant evidence in the record that the particular defendant, whose product caused injury in New York, had purposefully sought to market its
goods in New York. See Commentary C302:13, below.
C302:3. General Considerations in Applying CPLR 302(a).
In LaMarca v. Pak-Mor Mfg. Co., 2000, 95 N.Y.2d 210, 713 N.Y.S.2d 304, 735 N.E.2d 883, the Court
of Appeals provided a blueprint for analysis of long-arm jurisdiction under CPLR 302. The Court began
with the observation that the application of CPLR 302 entails a two-part inquiry: (1) Do the facts of
plaintiff's case fall within the coverage of one or more provisions of the New York statute? (2) Assuming an affirmative answer to the first question, does the particular assertion of jurisdiction comport with
due process? Thus, a due process analysis need not be undertaken if the statute, as construed by the
courts, does not allow for the assertion of jurisdiction as a matter of state law. In practice, however, the
constraining influence of due process occasionally will play a role in the court's construction of the statute. See, e.g., Ehrenfeld v. Bin Mahfouz, 2007, 9 N.Y.3d 501, 508, 851 N.Y.S.2d 381, 385, 881 N.E.2d
830, 834 (“To determine what constitutes a transaction of business we have been guided--as was the Legislature in enacting CPLR 302(a)(1)--by U.S. Supreme Court opinions delineating proper bases for
personal jurisdiction under the Federal Due Process Clause”).
If the plaintiff's assertion of jurisdiction meets the requirements of the statute, the due process inquiry,
in turn, consists of a two-part analysis: (1) minimum contacts must exist between the defendant and the
forum (the “purposeful availment” test), and (2) the assertion of jurisdiction must not offend traditional
notions of fair play and substantial justice (the “reasonableness” test). See Commentary C302:2, above.
In most cases, the past half-century of experience with CPLR 302 will make clear whether a particular
assertion of jurisdiction complies with due process. By no means, however, are the jurisdictional waters
completely charted. Occasionally, a court will need to employ the navigational tools provided by Supreme Court precedent. See, e.g., Copp v. Ramirez, 2009, 62 A.D.3d 23, 30-31, 874 N.Y.S.2d 52, 59
(1st Dep't), leave to appeal denied 12 N.Y.3d 711, 882 N.Y.S.2d 397, 909 N.E.2d 1235; Perkow v.
Frank W. Winne & Sons, Inc., 2007, 36 A.D.3d 1189, 828 N.Y.S.2d 687 (3d Dep't).
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The introductory paragraph to CPLR 302(a) embodies concepts that are applicable to all of the potential
grounds of long-arm jurisdiction listed in the statute. It is fundamental, for example, that plaintiff's
cause of action must “arise from” one of the listed activities in subdivisions (a)(1)-(4). (In some cases,
more than one statutory category may be applicable). This statutory requirement conforms to the due
process limitations that apply when jurisdiction is based on a defendant's “single or occasional acts” in
the state. See Commentaries C302:1 and C302:2, above.
The “arising from” issue is most easily resolved in applying CPLR 302(a)(2) and (a)(3), which are essentially self-defining categories for tortious acts. See Commentaries C302:10 through C302:13, below.
CPLR 302(a)(1) has been more problematic, especially where the plaintiff has sought to assert a claim
for out-of-state personal injuries that had their origin in a “transaction of business” by the defendant in
New York. The Court of Appeals declared in McGowan v. Smith, 1981, 52 N.Y.2d 268, 272, 437
N.Y.S.2d 643, 645, 419 N.E.2d 321, 323, that even if the defendant has engaged in purposeful acts in
New York, there must be a “substantial relationship” between those acts and the transaction upon which
the plaintiff's cause of action is based. Put another way, an “articulable nexus” must exist between the
New York transaction and the cause of action. Id.
The “substantial relationship” standard is explored in depth in the Commentaries on CPLR 302(a)(1), at
C302:8 through C302:9, below.
Long-arm jurisdiction under CPLR 302(a) can be asserted against any type of nondomiciliary, whether
the defendant be a natural person, foreign corporation, partnership or association. See Simonson v. International Bank, 1964, 14 N.Y.2d 281, 288, 251 N.Y.S.2d 433, 438, 200 N.E.2d 427, 431. Although
CPLR 302(a) might be read to require that the defendant be a nondomiciliary at the time of commission
of the act giving rise to jurisdiction, this reading has been rejected. The essence of long-arm jurisdiction
is the defendant's performance of activity directed toward the state, regardless of the defendant's status.
So, for example, a New York domiciliary who commits a tortious act in New York and thereafter becomes a domiciliary of New Jersey most certainly is subject to jurisdiction under CPLR 302(a)(2) and
can be served with process anywhere (CPLR 313). State v. Davies, 1965, 24 A.D.2d 240, 265 N.Y.S.2d
358 (3d Dep't), affirmed , 1966, 18 N.Y.2d 950, 277 N.Y.S.2d 146, 223 N.E.2d 570.
CPLR 302(a) contains no requirement that the plaintiff be a resident or domiciliary of New York. It has
been recognized, as a constitutional matter, that a state usually has an interest in providing a forum for
residents and nonresidents alike. See Keeton v. Hustler Magazine, Inc., 1984, 465 U.S. 770, 104 S.Ct.
1473, 79 L.Ed.2d 790. On the other hand, a plaintiff's out-of-state residency may weigh against the exercise of jurisdiction in a particular case under the reasonableness prong of the due process test. See
Commentary C302:2, above; see, e.g., Copp v. Ramirez, 2009, 62 A.D.3d 23, 30-31, 874 N.Y.S.2d 52,
59 (1st Dep't), leave to appeal denied 12 N.Y.3d 711, 882 N.Y.S.2d 397, 909 N.E.2d 1235. Plaintiff's
residency is also a factor in applying the discretionary doctrine of forum non conveniens. See Practice
Commentaries on CPLR 327, infra. New York residency or domicile of the plaintiff is a requirement,
however, for “matrimonial” long-arm jurisdiction under CPLR 302(b).
The estate of a deceased wrongdoer who committed one of the predicate acts under CPLR 302(a) is not
immune from jurisdiction simply because the executor or administrator is a nondomiciliary. The constitutionality of out-of-state service on the fiduciary in such cases was upheld in Rosenfeld v. Hotel Corp.
of America, 1967, 20 N.Y.2d 25, 281 N.Y.S.2d 308, 228 N.E.2d 374.
Page 21
The issues revolving around the requirement that the defendant act either “in person” or “through an
agent” warrant a separate discussion in Commentary C302:4, below. The pleading and proof of jurisdiction under CPLR 302, including the related problem of distinguishing between jurisdictional facts and
facts related to the merits, are discussed in Commentary C302:5, below.
Issues of retroactivity were important, of course, when CPLR 302 first took effect in 1963, but they can
also arise in the application of subsequent amendments. Shortly after the adoption of CPLR 302, Simonson v. International Bank, 1964, 14 N.Y.2d 281, 251 N.Y.S.2d 433, 200 N.E.2d 427, held that the statute could not be applied to sustain pending actions lacking a basis of personal jurisdiction at the time
they were commenced. Id. at 290, 251 N.Y.S.2d at 440, 200 N.E.2d at 432 (“[T]he new section does not
apply to actions instituted prior to its effective date and does not operate, by relation back, to validate
an attempted service of process which was jurisdictionally defective when made”).
On the other hand, if the acts forming the basis for jurisdiction occurred prior to the adoption of CPLR
302, the statute could be applied retroactively to provide a New York forum for the litigation. LonginesWittnauer Watch Co. v. Barnes & Reinecke, Inc., 1965, 15 N.Y.2d 443, 452-54, 261 N.Y.S.2d 8, 15-16,
209 N.E.2d 68, 72-74, certiorari denied 382 U.S. 905, 86 S.Ct. 241, 209 L.Ed.2d 158. Such retroactivity
is constitutionally permissible because the expansion of a court's jurisdictional reach is considered a remedial procedural measure that does not enlarge or impair any party's substantive rights or obligations.
The effect is merely “to provide the plaintiff with a new ‘forum to enforce whatever substantive rights'
he might have against the defendant.” Simonson v. International Bank, supra, 14 N.Y.2d at 289, 251
N.Y.S.2d at 439, 200 N.E.2d at 431. Thus, “CPLR § 302 has retroactive effect to the extent of embracing suits instituted after its effective date but based on previously accrued causes of action.” 14 N.Y.2d
at 290, 251 N.Y.S.2d at 440, 200 N.E.2d at 432.
These principles permitted retroactive application of a 1966 amendment to CPLR 302 that increased the
statute's reach over tort defendants (Gonzales v. Harris Calorific Co., 1970, 64 Misc.2d 287, 315
N.Y.S.2d 51 (Sup.Ct. Queens Co.), affirmed 35 A.D.2d 720, 315 N.Y.S.2d 815 (2d Dep't)), and a 1979
amendment that expanded the statute to include claims arising from contracts to send goods to New
York (West Mountain Corp. v. Seasons of Leisure International, Inc., 1981, 82 A.D.2d 931, 440
N.Y.S.2d 729 (3d Dep't)). See Commentaries C302:9 & C302:11, below. The Gonzales case also indicates that res judicata will not preclude recommencement of an action that was dismissed for lack of jurisdiction if a subsequent amendment of CPLR 302 creates a previously unavailable basis on the given
facts.
The acts that can subject a defendant to long-arm jurisdiction under CPLR 302(a) may be performed by
the defendant herself or “through an agent.” See, e.g., Owens v. Freeman, 2009, 65 A.D.3d 731, 884
N.Y.S.2d 791 (3d Dep't), leave to appeal dismissed 13 N.Y.3d 855, 891 N.Y.S.2d 688, 920 N.E.2d 93.
Whether a representative of the defendant qualifies as an agent for jurisdictional purposes does not turn
on legalistic distinctions between being an agent or independent contractor. Furthermore, no showing of
a formal relationship between the defendant and the agent is required. It is sufficient that the representative acted “for the benefit of and with the knowledge and consent of [the] defendant and that [he or
she] exercised some control over [the agent] in the matter.” Kreutter v. McFadden Oil Corp., 1988, 71
N.Y.2d 460, 467, 527 N.Y.S.2d 195, 199, 522 N.E.2d 40, 44(nondomiciliary held to have transacted
Page 22
business in New York (CPLR 302(a)(1)) through corporation over which, in his position as officer and
owner of affiliated company, he exercised “some control”).
The New York activities of a “co-conspirator” may also be imputed to an out-of-state tortfeasor for jurisdictional purposes under an agency rationale. See, e.g., Reeves v. Phillips, 1976, 54 A.D.2d 854, 388
N.Y.S.2d 294 (1st Dep't). See also CutCo Indus., Inc. v. Naughton, C.A.N.Y.1986, 806 F.2d 361, 366
(“where there is joint control of a business enterprise--similar to that existing in a partnership or joint
venture--enough control has been shown to establish prima facie this particular element of agency to
satisfy long-arm jurisdiction”).
The New York courts, however, have imposed a significant limitation on the agency component of
CPLR 302 jurisdiction. While a third party may rely on the New York activity of defendant's agent as a
basis for jurisdiction over the defendant-principal, the agent may not rely solely on her own New York
activity to sustain jurisdiction over her principal. Suppose, for example, D, a nondomiciliary, retained A
, also a nondomiciliary, to go to New York on D's behalf to negotiate and execute a contract with P.
While in New York, A allegedly made fraudulent representations, authorized by D, that induced P to accept the contract. P would have long-arm jurisdiction over D in a New York action for fraud, based on
the making of the contract, because D, through A, transacted business in New York (CPLR 302(a)(1))
and/or committed a tortious act in New York (CPLR 302(a)(2)). See, e.g., Abbate v. Abbate, 1981, 82
A.D.2d 368, 441 N.Y.S.2d 506 (2d Dep't).
But now assume that A commences an action against D in New York, alleging that the transaction with
P was legitimate and that D has failed to pay A for the services performed on D's behalf. A serves process on D out of state, asserting that her claim arises from a transaction of business in New York
“through an agent,” i.e., A. The Court of Appeals has held that long-arm jurisdiction would not be available on facts such as those in A v. D because the “plaintiff is relying on [her] own activities within the
State, rather than on defendant's independent activities.” Haar v. Armendaris Corp., 1973, 31 N.Y.2d
1040, 342 N.Y.S.2d 70, 294 N.E.2d 855, reversing on dissenting opinion in 40 A.D.2d 769, 770, 337
N.Y.S.2d 285, 288 (1st Dep't) (attorney who conducted negotiations in New York on behalf of nondomiciliary, pursuant to contract made outside New York, could not use New York negotiations as basis for
jurisdiction in attorney's suit for fee). The same denial of jurisdiction would apply if the agent who acted on D's behalf in New York was a New York domiciliary. See Glassman v. Hyder, 1968, 23 N.Y.2d
354, 362, 296 N.Y.S.2d 783, 789, 244 N.E.2d 259, 263 (out-of-state land owner who retained New
York broker to find buyer was not subject to jurisdiction in New York in action by broker where only
acts performed in New York were those of broker). In short, the agent, as plaintiff, may not impute her
own New York activity to the principal for purposes of CPLR 302.
The foregoing result does not appear to be compelled by constitutional considerations, especially if the
agent is based in New York. Surely a defendant who has reached out to establish a relationship with a
New York agent to perform services on his behalf in New York has purposefully availed himself of the
benefits and protections of New York law and can reasonably anticipate suit by the agent in New York
on a claim arising out of the agent's performance. See Burger King Corp. v. Rudzewicz, 1985, 471 U.S.
462, 105 S.Ct. 2174, 85 L.Ed.2d 528; Commentary C302:2, above. The rule, however, seems wellentrenched. In Fischbarg v. Doucet, 2007, 9 N.Y.3d 375, 383-84, 849 N.Y.S.2d 501, 507-08, 880
N.E.2d 22, 28-29, the Court acknowledged the continuing validity of Glassman and Haar, but distinguished them in a case in which California clients solicited the services of a New York attorney and act-
Page 23
ively communicated with him during a lengthy course of representation. See Commentary C302:7, below.
Thus, in an action by the agent against her nondomiciliary principal, jurisdiction may be established under CPLR 302(a)(1) only if the defendant purposefully engaged in independent acts of its own in New
York. In addition to Fischbarg, decisions of the Appellate Division provide illustrations of sufficient
New York activity by principals to enable actions against them by their agents. See, e.g., Courtroom
Television Network v. Focus Media, Inc., 1999, 264 A.D.2d 351, 695 N.Y.S.2d 17 (1st Dep't); Corporate Campaign, Inc. v. Local 7837, United Paperworkers International Union, 1999, 265 A.D.2d 274,
697 N.Y.S.2d 37 (1st Dep't); Alan Lupton Associates, Inc. v. Northeast Plastics, Inc., 1984, 105 A.D.2d
3, 482 N.Y.S.2d 647 (4th Dep't). Conversely, unilateral New York activity by the agent, standing alone,
will not suffice for the exercise of jurisdiction over the principal. See, e.g., Kimco Exchange Place
Corp. v. Thomas Benz, Inc., 2006, 34 A.D.3d 433, 824 N.Y.S.2d 353 (2d Dep't), leave to appeal denied
, 2007, 9 N.Y.3d 803, 840 N.Y.S.2d 762, 872 N.E.2d 875.
Another agency-related issue is whether the activity performed in New York by the agent will subject
the agent, as well as the principal, to jurisdiction for claims by third parties arising from the activity.
Kreutter v. McFadden Oil Corp., 1988, 71 N.Y.2d 460, 527 N.Y.S.2d 195, 522 N.E.2d 40, answered
this question in the affirmative, thereby rejecting the so-called “fiduciary shield” doctrine. The agent in
Kreutter was the officer of a corporation who, along with the corporation, was sued for making misrepresentations as part of a transaction in New York. The officer argued that it would be unfair to subject
him to long-arm jurisdiction because he was merely acting as a fiduciary for his corporate principal.
“Nothing in [CPLR 302]'s language or the legislative history relating to it suggests that the Legislature
intended to accord any special treatment to fiduciaries acting on behalf of a corporation or to insulate
them from long-arm jurisdiction for acts performed in a corporate capacity.” 71 N.Y.2d at 470, 527
N.Y.S.2d at 201, 522 N.E.2d at 46. See also CPC International, Inc. v. McKesson Corp., 1987, 70
N.Y.2d 268, 519 N.Y.S.2d 804, 514 N.E.2d 116. Any potential unfairness can be addressed in individual cases, said the Court, through the application of due process limitations. It should be noted, however,
that the Court seemingly left intact the rule in Laufer v. Ostrow, 1982, 55 N.Y.2d 305, 313, 449 N.Y.2d
456, 460, 434 N.E.2d 692, 696 (see Practice Commentaries on CPLR 301, at C301:10, supra), that a
corporate officer who engages in systematic and continuous business in New York solely on behalf of
his employer does not thereby subject himself to suit in New York on claims unrelated to his New York
activity.
If challenged, the plaintiff has the burden of proving a basis of in personam jurisdiction under either
CPLR 301 or 302. See, e.g., Arroyo v. Mountain School, 2009, 68 A.D.3d 603, 892 N.Y.S.2d 74 (1st
Dep't). Plaintiff's complaint, however, need not allege that the court has a basis of personal jurisdiction.
Fischbarg v. Doucet, 2007, 9 N.Y.3d 375, 381 n.5, 849 N.Y.S.2d 501, 506, 880 N.E.2d 22, 27.
Nowhere in the CPLR's rules of pleading is there any requirement of an allegation of the court's jurisdiction. The pleading burden, rather, lies with the defendant to raise lack of personal jurisdiction as a
defense in a pre-answer motion to dismiss or in the answer. See CPLR 3211(a)(8), 3211(e). If the defendant moves to dismiss due to the absence of a basis of personal jurisdiction, the plaintiff must come
forward with sufficient evidence, through affidavits and relevant documents, to prove the existence of
jurisdiction.
Page 24
An evidentiary hearing may be necessary to resolve material conflicts between defendant's and
plaintiff's affidavits. See CPLR 3211(c); Stardust Dance Productions, Ltd. v. Cruise Groups International, Inc., 2009, 63 A.D.3d 1262, 1265, 881 N.Y.S.2d 192, 195 (3d Dep't). The evidence should be
viewed in the light most favorable to the plaintiff. Armouth International, Inc. v. Haband Co., 2000,
277 A.D.2d 189, 190, 715 N.Y.S.2d 438, 439 (2d Dep't).
If the jurisdictional issue is raised at an early stage of the litigation, it may be that the plaintiff will lack
the necessary evidence to meet her burden of proof. This problem is addressed by CPLR 3211(d), which
authorizes the court to order discovery upon a showing that facts favoring jurisdiction “may exist but
cannot then be stated.” The Court of Appeals held in Peterson v. Spartan Industries, Inc., 1974, 33
N.Y.2d 463, 467, 354 N.Y.S.2d 905, 908, 310 N.E.2d 513, 515, that CPLR 3211(d) may be invoked
when the plaintiff, in opposition to a motion to dismiss, has made a “sufficient start,” showing that her
assertion of jurisdiction is “not frivolous.”
The plaintiff whose initial evidence meets the “sufficient start” requirement should be given an opportunity for discovery in order to prove “other contacts and activities of the defendant in New York as
might confer jurisdiction.” 33 N.Y.2d at 467, 354 N.Y.S.2d at 908, 310 N.E.2d at 515. In adopting the
“sufficient start” standard, the Peterson Court explicitly rejected any requirement that the plaintiff make
a “prima facie showing of jurisdiction” as a prerequisite to discovery. A “prima facie” standard, said
that Court, “may impose undue obstacles for a plaintiff, particularly one seeking to confer jurisdiction
under the ‘long-arm’ statute.... In these cases especially, the jurisdictional issue is likely to be complex.
Discovery is, therefore, desirable, indeed may be essential, and should quite probably lead to a more accurate judgment than one made solely on the basis of inconclusive preliminary affidavits.” Id. See
Shore Pharmaceutical Providers, Inc. v. Oakwood Care Center, Inc., 2009, 65 A.D.3d 623, 624, 885
N.Y.S.2d 88, 90 (2d Dep't) (“plaintiff's opposition to [defendant's] motion [to dismiss for lack of in personam jurisdiction] was sufficient to warrant denial of the motion without prejudice to renewal upon
completion of disclosure on the issue of whether long-arm jurisdiction may be established”).
With respect to the scope of discovery, it should be noted that the relevant time frame for evaluating the
defendant's contacts for jurisdiction based on CPLR 301 (“doing business” in New York) as compared
to CPLR 302 (long-arm jurisdiction) is the time of commencement of the action. See Practice Commentaries on CPLR 301, at C301:8, subdivision (a), supra. See, e.g., Edelman v. Taittinger, S.A., 2004,
8 A.D.3d 121, 778 N.Y.S.2d 484 (1st Dep't) (discovery limited to 30 days prior to filing of action). See
also Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., C.A.N.Y.1996, 84 F.3d 560, 569-70
(discovery related to jurisdiction based on defendant's continuous and systematic conduct in forum (
CPLR 301) should encompass reasonable period prior to commencement of action).
It might seem anomalous that the court can compel discovery from a defendant who is contending that
the court lacks jurisdiction over it. Any doubts about a court's constitutional authority in this regard
were put to rest by the Supreme Court in Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de
Guinee, 1982, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492, where the imposition of discovery sanctions was upheld against a defendant who refused to participate in discovery aimed at resolving its motion to dismiss for lack of personal jurisdiction. A defendant who appears in an action for the limited
purpose of objecting to jurisdiction is deemed to consent to the court's authority to determine the jurisdictional issue.
Page 25
In proving the existence of a jurisdictional basis under CPLR 302(a), the plaintiff will sometimes be establishing facts that overlap with substantive issues in the case. For example, if the defendant himself
did not commit one of the statute's specified acts, the question will be whether he acted through an
agent. Another question may be whether there was a contract made outside the state by which the defendant became obligated to ship goods to New York (CPLR 302(a)(1)). Or the issue may be whether
the defendant committed a tortious act in New York (CPLR 302(a)(2)) or a tortious act outside New
York that caused injury within the state (CPLR 302(a)(3)). In each example, the existence of the
agency, contract or tortious act, as the case may be, is both a jurisdictional issue and an issue upon
which the defendant's liability turns. If the defendant objects to jurisdiction, must the plaintiff prove her
case on the merits in order to sustain the court's power of adjudication? From the defendant's perspective, if the plaintiff wins on the jurisdictional point, is the defendant bound by the court's findings when
the merits of the case are reached? The answer to both questions is “no.”
The threshold question of jurisdiction under CPLR 302(a) is severable from the defendant's ultimate liability. Longines-Wittnauer Watch Co. v. Barnes & Reinecke, 1965, 15 N.Y.2d 443, 460, 261 N.Y.S.2d
8, 26, 209 N.E.2d 68, 77, certiorari denied 382 U.S. 905, 86 S.Ct. 241, 15 L.Ed.2d 158. To establish
jurisdiction, the plaintiff's only burden is to prove that the defendant performed an act--he did
something--in New York or directed toward New York that gave rise to a claim of liability through
agency, contract, tort, etc. See Evans v. Planned Parenthood of Broome County, Inc., 1974, 43 A.D.2d
996, 997, 352 N.Y.S.2d 257, 259 (3d Dep't); Lamarr v. Klein, 1970, 35 A.D.2d 248, 251, 315 N.Y.S.2d
695, 698 (1st Dep't), affirmed , 1972, 30 N.Y.2d 757, 333 N.Y.S.2d 421, 284 N.E.2d 576. Furthermore,
a favorable finding for the plaintiff with respect to an overlapping jurisdictional/substantive fact is not
binding on the defendant when the case goes to trial. Ed Moore Advertising Agency, Inc. v. I.H.R., Inc.,
1985, 114 A.D.2d 484, 486, 494 N.Y.S.2d 400, 402 (2d Dep't); Elman v. Belson, 1969, 32 A.D.2d 422,
424, 302 N.Y.S.2d 961, 963 (2d Dep't).
The problem of the jurisdiction/merits overlap appears to be encountered most frequently when the defendant is alleged to have committed a “tortious act,” a prerequisite to the availability of CPLR
302(a)(2) or (a)(3). Although the plaintiff need not, in order to sustain jurisdiction, prove that the defendant is actually liable for a tort, she must satisfy the following two-part burden. First, the plaintiff
must establish, factually, that the defendant's acts occurred in New York or were sufficiently New
York-directed. The second part of the inquiry is whether the acts attributable to the defendant give rise
to a claim of tort. This presents a question of law: Does the complaint state a cognizable tort cause of
action? See Fantis Foods, Inc. v. Standard Importing Co., 1980, 49 N.Y.2d 317, 325, 425 N.Y.S.2d
783, 786, 402 N.E.2d 122, 125 (to establish jurisdiction under CPLR 302(a)(3), plaintiff had burden of
showing that facts “may exist” to establish commission of tortious act by defendant). See also Evans v.
Planned Parenthood of Broome County, Inc., supra; Nelson v. Miller, 1957, 11 Ill.2d 378, 393, 143
N.E.2d 673, 681 (interpreting tortious-act provision of Illinois long-arm statute).
The jurisdictional determination thus blends into a question on the merits. For example, it has been held
that allegations of a breached contract, accompanied only by an averment that the defendant did not intend to perform the contract, do not, under New York's substantive law, permit recovery for fraud. Such
complaint, therefore, does not allege a “tortious act,” and jurisdiction cannot be sustained under CPLR
302(a)(2) or (a)(3). See PI, Inc. v. Quality Products, Inc., S.D.N.Y.1995, 907 F.Supp. 752, 760-62.
Because the issue is the preliminary one of jurisdiction, it is submitted that courts should give added
Page 26
weight to the requirement that a complaint be liberally construed in plaintiff's favor. See, e.g., Hoag v.
Chancellor, Inc., 1998, 246 A.D.2d 224, 228, 677 N.Y.S.2d 531, 533 (1st Dep't). See generally Brandt
v. Toraby, 2000, 273 A.D.2d 429, 430, 710 N.Y.S.2d 115, 117 (2d Dep't) (in deciding question of personal jurisdiction, courts must construe pleadings and affidavits in light most favorable to plaintiffs and
resolve all doubts in their favor). For jurisdictional purposes, it should suffice that the complaint states
a colorable cause of action. See Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez,
C.A.N.Y.2002, 305 F.3d 120, 125.
Query whether a dismissal for lack of jurisdiction under CPLR 302(a)(2) or (a)(3) because plaintiff's
complaint fails to allege a “tortious act” would be binding on the plaintiff as a decision on the merits if
plaintiff thereafter sues defendant in a forum where jurisdiction is not an issue. In Arrowsmith v. United
Press International, C.A.N.Y.1963, 320 F.2d 219, 221, the Second Circuit held that a court lacking personal jurisdiction has no power to determine that the complaint fails to state a cause of action.
The burden of proving that service was properly made (the notice component of jurisdiction) is discussed in the Practice Commentaries on CPLR 306, infra.
Subdivision (a)(1): Transaction of Business in New York, or Contract to Supply Goods or Services in New
York.
The first prong of CPLR 302(a)(1) provides a basis of long-arm jurisdiction over a defendant who, in
person or through an agent, transacts any business within the state if the plaintiff's claim arises from the
transaction. The term “transacts business” must be distinguished from “doing business.” The latter term
is applied to a defendant's New York business activity that is so systematic and continuous that the
plaintiff may sue the defendant here on any cause of action, even if it did not arise out of the defendant's New York business. See Practice Commentaries on CPLR 301, at C301:8-C301:10, supra. The
long-arm category for “transaction of business” is applicable when the defendant has engaged in one
purposeful business transaction in New York and the plaintiff's claim arises out of the particular transaction.
CPLR 302, as has been noted in the preceding Commentaries, is a “single-act” statute, meaning that one
business transaction, from which the cause of action arises, can be sufficient for jurisdictional purposes.
Deutsche Bank Securities, Inc. v. Montana Board of Investments, 2006, 7 N.Y.3d 65, 71, 818 N.Y.S.2d
164, 166-67, 850 N.E.2d 1140, 1142certiorari denied 549 U.S. 1095, 127 S.Ct. 832, 166 L.Ed.2d 665.
Subdivision (a)(1) fixes no precise guidelines as to what constitutes a transaction of business. LonginesWittnauer Watch Co. v. Barnes & Reinecke, Inc., 1965, 15 N.Y.2d 443, 456, 261 N.Y.S.2d 8, 18, 209
N.E.2d 68, 75, certiorari denied 382 U.S. 905, 86 S.Ct. 241, 15 L.Ed.2d 158. Thus, no one particular act
will necessarily determine the existence of a transaction within the scope of the statute; the defendant's
New York activities, and their nature and quality, are to be considered in their totality. Id. at 457 n.5,
261 N.Y.S.2d at 18, 209 N.E.2d at 75. See also Fischbarg v. Doucet, 2007, 9 N.Y.3d 375, 380, 849
N.Y.S.2d 501, 505, 880 N.E.2d 22, 26 (primary consideration is “quality of the defendants' New York
contacts”). The transaction, at minimum, must be a purposeful act by which the defendant avails itself
of the benefits and protections of New York's laws. Id.
Page 27
George Reiner and Co. v. Schwartz, 1977, 41 N.Y.2d 648, 653, 394 N.Y.S.2d 844, 847, 363 N.E.2d
551, 554, is the “clearest sort of case” in which the transaction category has been held applicable.
There, the defendant was a Massachusetts domiciliary who came to New York for one day for the purpose of seeking a position as plaintiff's sales representative in New England. At the end of the one day
of interviewing and negotiating with plaintiff in New York, the defendant signed a long-term contract.
He returned to Massachusetts and undertook performance of the contract over the next few years, never
again entering New York. Plaintiff sued in New York for breach of the contract, alleging that defendant
had retained excessive commissions. Defendant's one-day visit to New York was of such nature and
quality as to qualify as a transaction of business within the meaning of the statute. Although the alleged
breach did not occur in New York, it arose out of the transaction that transpired here. Furthermore, due
process was satisfied because the defendant “purposefully availed himself of the privilege of conducting activities in [New York], thus invoking the benefits and protections of our laws.” Id.
The George Reiner Court emphasized that the defendant was physically present at the time the contract
was made. See also Hi Fashion Wigs, Inc. v. Peter Hammond Advertising, Inc., 1973, 32 N.Y.2d 583,
347 N.Y.S.2d 47, 300 N.E.2d 421 (nondomiciliary held to have transacted business in New York by
making personal delivery in New York of contractual guarantee, upon which plaintiff's claim was
based). Defendant's execution of a contract in New York, however, is not required. The statute can be
satisfied by defendant's participation in relevant New York activity that precedes or follows the actual
making of the contract. Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., supra, 15 N.Y.2d at
457, 261 N.Y.S.2d at 18, 209 N.E.2d at 75. In Longines-Wittnauer, it was sufficient that the defendant,
the out-of-state seller of two specially-designed machines, engaged in substantial preliminary negotiations with the plaintiff-buyer in New York over the course of two months, shipped the machines to
New York, and then sent employees to New York to supervise the installation and testing of the machines over a three-month period. The fact that the contract itself was made in Illinois did not divest the
court of jurisdiction for plaintiff's breach of warranty action. See also Berk v. Theatre Arts of West Virginia, Inc., 1993, 157 Misc.2d 696, 598 N.Y.S.2d 418 (N.Y.C.Civ.Ct.) (defendant transacted business in
New York by auditioning plaintiff here for acting job in West Virginia even though contract negotiation
and execution were carried out by phone and mail from West Virginia; in performing arts, audition is
crucial event leading to contract).
There comes a point, however, at which a defendant's in-state meetings in connection with a contract
made out of state are too attenuated to treat the transaction as having occurred in New York. In McKee
Electric Co. v. Rauland-Borg Corp., 1967, 20 N.Y.2d 377, 283 N.Y.S.2d 34, 229 N.E.2d 604, for example, the plaintiff, a New York distributor, sent a purchase order to defendant in Illinois for delivery
of equipment in New York. When plaintiff experienced difficulties with its customers concerning the
equipment, the defendant sent two representatives to New York to seek to iron out the problems. The
one day of trouble-shooting, even when considered together with the shipment of the goods to New
York, did not rise to the level of a transaction of business in New York. See also C-Life Group Ltd. v.
Generra Co., 1997, 235 A.D.2d 267, 652 N.Y.S.2d 41 (1st Dep't) (45-minute exploratory meeting in
New York in connection with contract that was negotiated in large measure by phone, mail and meetings outside New York did not rise to level of transaction in New York).
A defendant whose only connection with New York is the making of a contract out of state to ship
goods to New York has not transacted business here.McGowan v. Smith, 1981, 52 N.Y.2d 268, 271, 437
N.Y.S.2d 643, 644, 419 N.E.2d 321, 322 (“the long-arm authority conferred by [the transaction cat-
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egory] does not extend to nondomiciliaries who merely ship goods into the State without ever crossing
its borders”). Similarly, Ferrante Equipment Co. v. Lasker-Goldman Corp., 1970, 26 N.Y.2d 280, 309
N.Y.S.2d 913, 258 N.E.2d 202, held that a contract made out of state to indemnify obligations to be
performed in New York is not a transaction in New York. These are not constitutional limitations,
however; and with respect to the shipment of goods, it should be noted that today, facts such as those in
McKee would clearly come within the coverage of the second prong of CPLR 302(a)(1) (“contracts anywhere to supply goods in New York”), a provision that did not exist when McKee was decided. See
Commentary C302:9, below. Nevertheless, McKee and its progeny are illustrative of the narrow interpretation that has sometimes been given by the New York courts to the transaction concept.
Just as the making of a contract in New York is not necessary to establish the existence of a transaction,
neither will the defendant's execution of a contract in New York automatically confer jurisdiction for a
claim based on the contract. For example, the courts are likely to reject jurisdiction if the only New
York contact is the defendant's execution here of a contract that was negotiated wholly outside New
York and involves performance elsewhere. In Presidential Realty Corp. v. Michael Square West, Ltd.,
1978, 44 N.Y.2d 672, 405 N.Y.S.2d 37, 376 N.E.2d 198, the parties negotiated in Atlanta, New Orleans
and Mobile for the sale of real estate in Alabama. Prior to closing the deal, the plaintiff requested further talks at its New York office. There was no proof that any negotiations of substance occurred at this
meeting, and thus defendant's signing of the agreement at the conclusion of the meeting was held insufficient to create a transaction in New York. A fortiori, the plaintiff's signing of a contract in New York
will contribute little to the obtaining of jurisdiction over a defendant whose other transaction-based contacts with New York are minimal in nature. Libra Global Technology Services (UK) Limited v. Telemedia International, Ltd., 2001, 279 A.D.2d 326, 719 N.Y.S.2d 53 (1st Dep't). See also Abbate v. Abbate, 1981, 82 A.D.2d 368, 384, 441 N.Y.S.2d 506, 515 (2d Dep't) (“where that one act [in New York]
is purely ministerial, as where the parties reach full agreement on a contract in their respective home
states and merely execute the formal document memorializing their agreement in New York, it is doubtful that jurisdiction would be sustained”).
The parties' inclusion of a New York choice-of-law provision in their contract is a relevant factor, but it
is not enough, by itself, to establish a New York business transaction. See, e.g., Executive Life Ltd. v.
Silverman, 2009, 68 A.D.3d 715, 717, 890 N.Y.S.2d 106, 109 (2d Dep't).
As noted at the outset of this Commentary, the Court of Appeals has said that part of the inquiry in determining the existence of a transaction of business in New York is whether the defendant's acts have
invoked the benefits and protections of New York's laws. The Court stressed the quid pro quo aspect of
the test to reject jurisdiction in Ehrenfeld v. Bin Mahfouz, 2007, 9 N.Y.3d 501, 851 N.Y.S.2d 381, 881
N.E.2d 830. The Ehrenfeld Court concluded that a defendant whose only contacts with New York were
incidental communications and activities related to his prosecution and potential enforcement of a libel
suit brought in England against a New York author did not invoke the privileges or protections of New
York law and therefore did not transact business within the state. Thus, the author could not use CPLR
302(a)(1) as a basis of jurisdiction for declaratory relief against potential enforcement of the English
judgment in New York. The facts of the case are described in greater detail in Commentary C302:17,
below.
The Ehrenfeld Court also rejected a suggestion that the scope of CPLR 302(a)(1) be interpreted to encompass out-of-state activity calculated to have “effects” in New York--here, the “chilling effect” that
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the New York resident experienced with respect to her exercise of free speech. Again stressing a quid
pro quo theory, the Court said the New York effects were not based on defendant's invocation of any
privileges or benefits of New York law. While the Court recognized that application of an “effects test”
might allow the assertion of jurisdiction in cases of this nature as a matter of due process (see Commentary C302:2, above), such test was not in accord with New York precedents limiting the scope of
CPLR 302(a)(1). Although the separate long-arm category covering out-of-state tortious acts provides
for jurisdiction based on injurious effects in New York (CPLR 302(a)(3)), the same concept has never
been “superimposed” on CPLR 302(a)(1): “Our Legislature ... has seen fit to confer jurisdiction in a
limited subset of cases concerning nondomiciliaries. And, as we have done in the past, we continue to
adhere to that express mandate here.” 9 N.Y.3d at 513, 851 N.Y.S.2d at 389, 881 N.E.2d at 838.
The aftereffects of Ehrenfeld are discussed in Commentary C302:17, below. Although the “Libel Terrorism Protection Act” of 2008 changed the statutory standard to be applied in Ehrenfeld-type cases, the
legislation is not likely to affect the Court's interpretation of the reach of CPLR 302(a)(1) in other contexts. See Commentary C302:1, above.
Two decisions of the Appellate Division that predate Ehrenfeld's rejection of an effects test probably
still represent valid applications of CPLR 302(a)(1). What if Mr. Schwartz, the nondomiciliary defendant in the George Reiner case, supra, had negotiated and executed his contract in Massachusetts, never
setting foot in New York in connection with his long-term employment as the New England salesperson
for his New York employer? Would his breach of that contract qualify under CPLR 302(a)(1) as a claim
with a substantial nexus to a transaction of business in New York? Both the First and Second Departments of the Appellate Division answered this question in the affirmative. Olympus America, Inc. v.
Fujinon, Inc., 2004, 8 A.D.3d 76, 779 N.Y.S.2d 184 (1st Dep't); Opticare Acquisition Corp. v. Castillo,
2005, 25 A.D.3d 238, 806 N.Y.S.2d 84 (2d Dep't).
In both cases, the claims were based on the out-of-state employees' alleged misappropriation of confidential information belonging to their employers. Both courts reasoned that the defendants, regardless of
where they were located when they negotiated and executed their employment contracts, engaged in
transactional activity that had a significant impact on New York commerce. They derived their livelihood from New York business entities, routinely participated in communications with their employers
in New York, and regularly bound their New York employers to sales contracts with out-of-state purchasers. One of the courts explicitly justified its holding by reference to the material effects the defendant's conduct had in New York. Opticare Acquisition Corp. v. Castillo, supra, 25 A.D.3d at 245, 806
N.Y.S.2d at 90. It would seem that, in these cases, the ongoing nature of the contractual relationships
between the defendants and their New York employers, together with the employees' significant availment of the benefits and protections of New York's laws, would satisfy the Ehrenfeld Court's view of
the scope of CPLR 302(a)(1).
Commentary C302:7, below, specifically addresses the evolving caselaw on the application of CPLR
302(a)(1) to transactions in which defendants never physically enter New York.
As discussed in Commentary C302:6, above, the defendant's physical presence in New York for a significant portion of the parties' dealings goes a long way toward satisfying the statutory standard for a
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transaction of business in New York. But by no means is it essential that all of the parties' communications occur face-to-face in New York.
For example, in Ehrlich-Bober & Co. v. University of Houston, 1980, 49 N.Y.2d 574, 427 N.Y.S.2d
604, 404 N.E.2d 726, a Texas defendant was found to have transacted business in New York as a result
of dealings with a New York brokerage firm that were carried out largely by mail and telephone. Over a
one-year period, the defendant and plaintiff entered into several so-called “reverse repurchase” agreements--a sale of securities with an understanding that the seller would repurchase them at a higher price
on a specified future date. (Such an agreement is, in effect, a loan in which the securities serve as collateral.) The transactions were initiated by telephone from Texas; and on some occasions, a representative
of the defendant came to New York for related discussions. Two such transactions were the subject of
the suit. In both, the defendant had called the plaintiff brokerage firm, which agreed to buy certain securities owned by defendant. The oral agreements were confirmed by letter sent from Texas, which the
plaintiff signed in New York and returned to the defendant. In each transaction, the plaintiff delivered
the purchase price to a New York bank that served as a correspondent for defendant's Texas bank, and
the New York bank delivered the securities to the plaintiff.
Plaintiff sued in New York for breach of contract when the defendant refused to go through with the
scheduled repurchases. In the aggregate, defendant's activities amounted to a transaction of business in
New York. The transaction was a combination of dealings through mail and telephone, and the New
York bank served, in effect, as defendant's agent in New York for CPLR 302 purposes (see Commentary C302:4, above). Other transactions of smaller scale have likewise been found sufficient where the
defendant's phone, mail or electronic communications to New York were augmented by personal visits
to the state. See, e.g., Corporate Campaign, Inc. v. Local 7837, United Paperworkers International
Union, 1999, 265 A.D.2d 274, 697 N.Y.S.2d 37 (1st Dep't); Empire Beef Company v. Meyners-Robinson Co., 1998, 248 A.D.2d 1012, 669 N.Y.S.2d 998 (4th Dep't).
Can there be a transaction of business in New York if the out-of-state defendant never sets foot here, his
contacts with New York consisting solely of communications by telephone, mail or some other modern
substitute for bodily presence? In Parke-Bernet Galleries, Inc. v. Franklyn, 1970, 26 N.Y.2d 13, 308
N.Y.S.2d 337, 256 N.E.2d 506, one of the earliest cases to apply CPLR 302(a)(1), the Court of Appeals
answered this question in the affirmative on an unusual set of facts. Franklyn, a California art collector,
persuaded Parke-Bernet Galleries in New York to allow him to participate in an auction in New York
by means of an open telephone line from California. During the auction, a Parke-Bernet employee advised Franklyn of the bidding taking place in the auction room and conveyed Franklyn's bids to the auctioneer. Two paintings were sold to Franklyn in this manner, but he subsequently refused to pay. ParkeBernet's New York action for breach of contract was held to have arisen out of Franklyn's transaction of
business in New York.
The Court of Appeals said that Franklyn had, “in a very real sense, projected himself into the auction
room,” where he actively participated in the competitive bidding. 26 N.Y.2d at 18, 308 N.Y.S.2d at 340,
256 N.E.2d at 508. The Court eschewed the need for actual physical presence at the time of a transaction, noting that “in this day of instant long-range communications, one can engage in extensive purposeful activity here without ever actually setting foot in the State.” Id. at 17, 308 N.Y.S.2d at 340, 256
N.E.2d at 508. The Court distinguished the situation in which an out-of-state buyer places an ordinary
phone call to New York for a single order of goods from a New York seller. Jurisdiction on such facts
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had been rejected in M. Katz & Son Billiard Products, Inc. v. G. Correale & Sons, Inc., 1967, 20
N.Y.2d 903, 285 N.Y.S.2d 871, 232 N.E.2d 864, affirming 26 A.D.2d 52, 270 N.Y.S.2d (1st Dep't), and
the Court reaffirmed this ruling in Parke-Bernet. See also Fischbarg v. Doucet, 2007, 9 N.Y.3d 375,
380, 849 N.Y.S.2d 501, 505, 880 N.E.2d 22, 26.
Thirty-six years after Parke-Bernet, in the new era of the internet, the Court returned to the issue of
electronically conducted transactions. Deutsche Bank Securities, Inc. v. Montana Board of Investments,
2006, 7 N.Y.3d 65, 818 N.Y.S.2d 164, 850 N.E.2d 1140, certiorari denied 549 U.S. 1095, 127 S.Ct.
832, 166 L.Ed.2d 665, makes a strong statement that courts should not hesitate to apply CPLR
302(a)(1) to claims having a substantial relationship to a commercially savvy defendant's purposeful
and economically significant transaction over the internet with a plaintiff in New York. By using technologically advanced modes of communication, such a defendant may be deemed to have transacted
business “within the state” without physically being here. The Court wrote: “[W]hen the requirements
of due process are met, as they are here, a sophisticated institutional trader knowingly entering our
state--whether electronically or otherwise--to negotiate and conclude a substantial transaction is within
the embrace of the New York long-arm statute.” Id. at 72, 818 N.Y.S.2d at 167, 850 N.E.2d at 1143.
The defendant was a Montana government entity engaged in the investment of public funds, and the
plaintiff was a bank with offices in New York. The plaintiff initially contacted the defendant in
Montana with an inquiry as to whether defendant was interested in either swapping certain Pennzoil
bonds for bonds owned by plaintiff or selling the Pennzoil bonds for a certain price. Defendant's investment officer at first said no, but got back in touch ten minutes later indicating an interest in selling $15
million of the bonds to plaintiff for the earlier quoted price. After a few more communications, the
parties agreed to the sale proposed by the defendant, and the plaintiff sent a trade ticket and confirmation of the deal. The negotiations all took place on one day and were made via an instant messaging service for subscribers interested in negotiating and completing trades. At no time did any agent of the defendant come to New York in connection with the sale. The Court of Appeals noted that the parties had
engaged in eight other bond transactions, totaling over $100 million, during the 13-month period preceding the transaction at issue. Although this additional fact does not appear to have been essential to
the Court's conclusion, it was cited as evidence that the defendant had availed itself of the privilege of
conducting activity in New York, thus contributing to the Court's finding that the requirements of due
process were satisfied.
In an apparent word of caution, the Court noted that the transaction at issue was “distinct” from that of
an individual investor's out-of-state phone call to a New York stockbroker, citing L.F. Rothschild, Unterberg, Towbin v. McTamney, 1983, 59 N.Y.2d 651, 463 N.Y.S.2d 197, 449 N.E.2d 1275, affirming 89
A.D.2d 540, 452 N.Y.S.2d 630 (1st Dep't). The Court seemed to be implying that a small investor
whose phone calls or email messages to a broker in New York are relatively few in number, concern
only a modest level of investment activity, and involve no individualized bargaining over terms, would
not reasonably expect to defend her actions in New York. The defendant in the instant case, in contrast,
was “a sophisticated institutional trader that entered New York to transact business here by knowingly
initiating and pursuing a negotiation ... that culminated in the sale of $15 million in bonds.” 7 N.Y.3d at
71-72, 818 N.Y.S.2d at 167, 850 N.E.2d at 1143.
The Court again had occasion to endorse the applicability of CPLR 302(a)(1) to transactions conducted
solely by long-range communication in Fischbarg v. Doucet, 2007, 9 N.Y.3d 375, 849 N.Y.S.2d 501,
Page 32
880 N.E.2d 22. In Fischbarg, certain California residents, without ever setting foot in New York, contacted and retained a New York attorney to perform legal services relating to a copyright dispute
centered on the west coast. Over the course of nine months, the attorney performed substantial services
for the clients in New York (apparently over 200 hours worth), frequently communicating with them via
telephone, mail, fax and email. The Court held that the “sustained and substantial” attorney-client relationship that defendant solicited and established constituted a transaction of business in New York sufficient to permit the attorney's New York action for nonpayment of the legal fee that he earned in connection with his services.
The Court drew upon the leading precedents upholding CPLR 302(a)(1) jurisdiction. First, the Court
noted that the primary consideration in analyzing jurisdiction under CPLR 302(a)(1) is the quality of
the defendant's New York contacts, acknowledging that the acts necessary to establish a transaction of
business cannot be precisely fixed. (See Longines-Wittnauer Watch Co. v. Barnes & Reinecke, supra,
discussed in Commentary C302:6, above). Here, the required qualitative level was satisfied. As in
George Reiner & Co. v. Schwartz, supra (Commentary C302:6, above), the defendants purposefully
sought out the plaintiff in New York to create a continuing business relationship. As in Parke-Bernet
Galleries v. Franklyn, supra, the defendants, despite the absence of any in-person visits to New York,
“projected themselves” into New York through multiple and ongoing mailings, faxes, emails and phone
conversations. The retainer, ongoing communications and continuing relationship with plaintiff was a
form of participation in New York's “legal services market,” which was analogized to Mr. Franklyn's
participation in the art auction that formed the factual predicate in Parke-Bernet. Finally, by utilizing
plaintiff's New York-based legal services to advance their legal interests, defendants benefited from the
protections of New York laws governing the attorney-client relationship.
The Court did not disavow the rule discussed in Commentary C302:4, above, that an agent (here, the attorney) cannot rely upon his own New York acts (here, legal services in New York) to establish jurisdiction over the defendant. That rule was inapplicable because the defendants themselves engaged in
relevant New York activity by initiating a retainer with plaintiff in New York, establishing a continuing
relationship with him and maintaining ongoing New York-directed communications in connection with
his performance of legal services. The Court also distinguished the “limited contacts” that failed to satisfy CPLR 302(a)(1) in Etra v. Matta, 1984, 61 N.Y.2d 455, 474 N.Y.S.2d 687, 463 N.E.2d 3, where an
out-of-state doctor consulted with a New York physician by phone and mail and shipped some medicine
to New York as a follow-up to medical treatment that had been performed in Massachusetts for a New
York patient. Cf. Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, C.A.N.Y.1999, 171 F.3d
779, 787-88 (out-of-state law firm did not transact business in New York when it gave incidental advice
to New York client via phone, mail and fax concerning loan collateral located in Puerto Rico).
The Court of Appeals has had little opportunity thus far to explore the circumstances in which an outof-state defendant's use of its website may constitute transacting business in New York within the
meaning of CPLR 302(a)(1). In a footnote in Ehrenfeld v. Bin Mahfouz, 2007, 9 N.Y.3d 501, 510 n.7,
851 N.Y.S.2d 381, 387, 881 N.E.2d 830, 836, however, the Court indicated that a nondomiciliary's
mere internet posting of information about a New York resident does not, standing alone, constitute a
transaction of business in New York.
The foregoing precedents deal with situations lying at opposite ends of a spectrum. The mere posting of
information on a website accessible in New York or a few isolated phone calls, mailings or electronic
Page 33
transmissions to New York to order goods, buy or sell a limited number of securities, or give professional advice incidental to out-of-state activity do not qualify as transactions in New York. At the other
end of the spectrum are transactions in which experienced business persons or entities, through various
modes of communication from outside New York, establish ongoing business relationships or negotiate
and consummate economically significant agreements.
Myriad scenarios lie in between these extremes, requiring courts to evaluate on a case-by-case basis
whether the claim is closely related to sufficiently purposeful acts in New York by which the defendant
“avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Fischbarg v. Doucet, supra, 9 N.Y.3d at 380, 849 N.Y.S.2d at 505, 880
N.E.2d at 26. The Court of Appeals has declared it “impossible to precisely fix those acts that constitute
a transaction of business,” and has directed courts, instead, to focus on “the quality of the defendants'
New York contacts [as] the primary consideration.” Id. As suggested in a pre-Fischbarg decision of the
Appellate Division, First Department, isolated telephone calls and mailings to New York generally do
not rise to the level of transacting business in New York. The statute will be satisfied, however, if the
defendant, by use of the telephone and mail, in effect, “projects himself” into the state in such manner
as to “actively participate in business transactions in New York.” Liberatore v. Calvino, 2002, 293
A.D.2d 217, 220, 742 N.Y.S.2d 291, 293 (1st Dep't).
Two recent decisions of the Appellate Division, Second Department, illustrate the discerning approach
now required in analyzing whether a transaction of business has occurred in New York where the outof-state defendant communicated solely by mail, telephone, fax or some other electronic medium. In
Executive Life Ltd. v. Silverman, 2009, 68 A.D.3d 715, 890 N.Y.S.2d 106 (2d Dep't), a Colorado attorney, after negotiating by phone, fax and email with a New York search firm to obtain referrals for a
paralegal position in his firm, faxed the executed referral agreement to New York. Noting that the
agreement did not specify that candidates for the job had to come from New York, the court rejected
CPLR 302(a)(1) jurisdiction for the New York firm's claim for a commission because “the defendant's
actions did not amount to a purposeful invocation of the privileges of conducting business in New
York.” 68 A.D.2d at 717, 890 N.Y.S.2d at 108.
Jurisdiction was upheld, however, in Grimaldi v. Guinn, 2010, 72 A.D.3d 37, 895 N.Y.S.2d 156 (2d
Dep't), on the following facts. In May 2006, plaintiff, a New York resident, purchased an engine part
for a vintage car from a Florida seller and in the process received a certification prepared specifically
for the plaintiff by defendant, a New Jersey engineer, indicating that the part was authentic. The certification had been preceded in the fall of 2005 by email and phone communications between plaintiff
and defendant in the course of which they discussed defendant's willingness to install the part and rebuild the car's engine and the associated cost. Shortly thereafter, the defendant, in response to an internet order by plaintiff's wife, sent the plaintiff an autographed copy of his book in which defendant
wrote, “Let's get together and do it the right way.” After plaintiff bought the engine part, he delivered
the car to a Pennsylvania shop where defendant and a co-venturer undertook the installation and rebuilding project. Defendant's website immediately touted the fact that plaintiff's car had been delivered
to him for the project. The project dragged on, and between January and November 2007, defendant and
his co-venturer made telephone calls reporting on the project and soliciting partial payments, sent photographs of the work in progress, and faxed an invoice. The Appellate Division found that defendant
purposefully created a continuing relationship with the New York plaintiff that lasted over a year, was
maintained through phone and email, and had a substantial nexus to the plaintiff's claims for breach of
Page 34
contract and misrepresentation.
As regards transactions based on the defendant's use of a website, the Court of Appeals has indicated
only that a mere display of data accessible in New York is not enough to qualify as a transaction of
business in New York. See also Grimaldi v. Guinn, supra, 72 A.D.3d at 50, 895 N.Y.S.2d at 166-67
(use of passive web site insufficient, alone, to confer jurisdiction).
When web advertising is augmented by other New York-directed activities, however, the case may fall
within the coverage of CPLR 302(a)(1). For example, in Zottola v. AGI Group, Inc., 2009, 63 A.D.3d
1052, 882 N.Y.S.2d 445 (2d Dep't), a New York plaintiff purchased a boat from a Florida defendant
that advertised the item on its website, apparently having never made any prior sale to a New Yorker. A
telephone number on the web page connected the plaintiff to defendant, who agreed over the phone to
deliver the boat to New York. Plaintiff made partial payment by transferring $15,000 to defendant's
bank account in New York. The court held that the totality of these activities by the defendant constituted a transaction of business in New York sufficient to confer jurisdiction for plaintiff's breach of contract suit. (Query whether jurisdiction could also have been premised on CPLR 302(a)(1)'s alternative
ground covering a contract made anywhere to supply goods in New York, a point the court did not discuss. See Commentary C302:9, below.)
A different result was reached in Arouh v. Budget Leasing, Inc., 2009, 63 A.D.3d 506, 883 N.Y.S.2d 4
(1st Dep't), where the plaintiff viewed a car for sale on the out-of-state defendant's website, and negotiated a potential purchase by email and phone. In this case, however, no actual purchase occurred by
electronic means and the car was to be picked up in Texas. The court held that this was neither a transaction of business in New York nor a contract to supply goods in New York.
Use of a so-called “interactive” website--one which allows for the exchange of information--may sometimes provide enough New York-targeted activity to qualify as a transaction of business in New York,
provided the claim is based on the website activity. See Citigroup Inc. v. City Holding Co.,
S.D.N.Y.2000, 97 F.Supp.2d 549, 564-66. See also Armouth International, Inc. v. Haband Co., 2000,
277 A.D.2d 189, 715 N.Y.S.2d 438 (2d Dep't) (even if the retail sales activity of defendant's website
constituted transacting business in New York, plaintiff's claim was not based on such activity).
A defendant's transaction of business in New York will provide a basis for long-arm jurisdiction only if
the plaintiff's cause of action arises from the transaction. See generally Commentary C302:3, above.
This requirement is satisfied if a “substantial relationship” exists between the cause of action and the
New York transaction. Johnson v. Ward, 2005, 4 N.Y.3d 516, 519, 797 N.Y.S.2d 33, 34, 829 N.E.2d
1201, 1202.
George Reiner and Co. v. Schwartz, 1977, 41 N.Y.2d 648, 394 N.Y.S.2d 844, 363 N.E.2d 551, described in Commentary C302:6, above, provides the paradigm. There, the plaintiff and defendant
entered into a contract in New York and plaintiff's suit was for breach of that contract. Even though the
breach itself occurred in Massachusetts, the cause of action arose out of the transaction that occurred in
New York. See also Fischbarg v. Doucet, 2007, 9 N.Y.3d 375, 384, 849 N.Y.S.2d 501, 508-09, 880
N.E.2d 22, 29-30 (plaintiff-attorney's claim for legal fee arose directly out of defendant-client's solicitation of plaintiff in New York to represent client in Oregon litigation during which client directed nu-
Page 35
merous communications to attorney in New York).
Lying at the opposite end of the spectrum in the commercial context is Armouth International, Inc. v.
Haband Co., 2000, 277 A.D.2d 189, 715 N.Y.S.2d 438 (2d Dep't). The defendant, a New Jersey corporation, maintained an Internet web site through which New York customers could make retail purchases
of clothing. The plaintiff, a clothing wholesaler, traveled to New Jersey to negotiate and execute a contract to sell the defendant goods that were to be shipped to Georgia. On these facts, the plaintiff's cause
of action for breach of the contract bore no relationship to the defendant's retail transactions that were
occurring in New York. See also EAC Systems, Inc. v. Chevie, 1989, 154 A.D.2d 813, 546 N.Y.S.2d
252 (3d Dep't), appeal denied , 1990, 75 N.Y.2d 705, 552 N.Y.S.2d 927, 552 N.E.2d 175 (cause of action based on defendant's alleged misconduct with respect to 1982 agreement, made outside New York,
to sell his shares of stock in plaintiff corporation was “separated by time and geography” from defendant's New York business dealings on behalf of plaintiff, which ceased in 1981).
The plaintiff's burden of establishing that the cause of action arose from a New York business transaction is most difficult, perhaps, in tort actions for personal injuries suffered outside New York. For example, in McGowan v. Smith, 1981, 52 N.Y.2d 268, 437 N.Y.S.2d 643, 419 N.E.2d 321, the Court of
Appeals rejected jurisdiction in an action for injuries that occurred in Canada as a result of a defective
fondue pot purchased in New York. What was missing here was “an articulable nexus between the business transacted and the cause of action sued upon,” Id. at 272, 437 N.Y.S.2d at 645, 419 N.E.2d at 323.
The Court also found the nexus insufficient in a case based on a New Jersey automobile accident caused
by a nonresident defendant who happened to have a New York driver's license and car registration.
Johnson v. Ward, 2005, 4 N.Y.3d 516, 797 N.Y.S.2d 33, 829 N.E.2d 1201. Even if the defendant's acquisition of the New York license and registration constituted a “business” transaction in New York--a
point the Court did not decide--the relationship between such transaction and the tortious act--negligent
driving in New Jersey--was “too insubstantial to warrant a New York court's exercise of personal jurisdiction over defendant.” The defendant's possession of a New York license and registration was merely
“coincidental” insofar as the cause of action for negligence was concerned.
Personal injuries that occur at a defendant's out-of-state hotel, resort or school are seldom deemed to
arise from the defendant's in-state solicitation activity. See, e.g., Arroyo v. Mountain School, 2009, 68
A.D.3d 603, 892 N.Y.S.2d 74 (1st Dep't); Apicella v. Valley Forge Military Academy and Junior College, 1984, 103 A.D.2d 151, 478 N.Y.S.2d 663 (2d Dep't); Meunier v. Stebo, Inc., 1971, 38 A.D.2d 590,
328 N.Y.S.2d 608 (2d Dep't). A leading case in this context is Gelfand v. Tanner Motor Tours, Ltd.,
C.A.N.Y1964, 339 F.2d 317, which rejected jurisdiction where the plaintiffs purchased their tickets in
New York for defendant's Las Vegas-to-Grand Canyon bus trip and were injured during the excursion.
The negligence and injuries occurred 3,000 miles from New York, said the court, and the defendant's
duty of care did not arise until plaintiffs boarded the bus in Las Vegas. Id. at 321-22.
The same rationale--remoteness of the New York transaction, both geographically and qualitatively,
from the duty of care, negligence and injuries--explains the results in Brandt v. Toraby, 2000, 273
A.D.2d 429, 710 N.Y.S.2d 115 (2d Dep't) (no jurisdiction where plaintiff, who negotiated contract in
New York to make repairs on defendant's Connecticut residence, was injured at Connecticut job site);
and Holness v. Maritime Overseas Corp., 1998, 251 A.D.2d 220, 676 N.Y.S.2d 540 (1st Dep't)
(defendant who made contract in New York to repair ship in Virginia was not subject to jurisdiction in
New York for personal injury action by worker injured at Virginia job site).
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Occasionally, however, courts have found a sufficiently substantial relationship between the New York
transaction and the claim sued upon. In Singer v. Walker, 1965, 15 N.Y.2d 443, 464, 261 N.Y.S.2d 8,
24, 209 N.E.2d 68, 80, certiorari denied 382 U.S. 905, 86 S.Ct. 241, 209 L.Ed.2d 158, an Illinois manufacturer, as a result of solicitation in New York by a local representative and through catalogues and advertisements, shipped substantial quantities of its products to New York. One of these items was a geologist's hammer that was purchased for plaintiff, a young boy, in a New York retail store. The hammer
broke and injured the child while he was using it in Connecticut. The Court held that the cause of action
for the child's injuries was “clearly one ‘arising from’ the purposeful activities engaged in by the
[defendant] in this State in connection with the sale of its products in the New York market.” Id. at 467,
261 N.Y.S.2d at 26-27, 209 N.E.2d at 82.
Lebel v. Tello, 2000, 272 A.D.2d 103, 707 N.Y.S.2d 426 (1st Dep't), is another case in which an outof-state tort was held to have arisen from a New York business transaction. Defendant, a California resident, came to New York to buy an airplane. Plaintiff was retained in New York to determine the
plane's airworthiness and to provide defendant with 25 hours of flight instruction, which was to begin in
New York and continue during a cross-country flight to California. The plane crashed in New Mexico,
with defendant at the controls, causing plaintiff's personal injuries. The court held that a “clearly articulable nexus” existed between the accident and the New York business transaction.
The nexus test was also satisfied in McLenithan v. Bennington Community Health Plan, 1996, 223
A.D.2d 777, 635 N.Y.S.2d 812 (3d Dep't), appeal denied 88 N.Y.2d 1017, 649 N.Y.S.2d 383, 672
N.E.2d 609, where the defendant, a Vermont physician, treated the plaintiff, a New Yorker, in Vermont
pursuant to the defendant's contract with a New York HMO that required him to treat the HMO's New
York subscribers. Although the treatment and injuries occurred in Vermont, the plaintiff's medical malpractice claim was held to have arisen from the defendant's contract to provide medical services to New
York residents. A different result was reached where a Vermont physician treated New York residents
pursuant to ad hoc referrals from a New York HMO with which he had no contractual arrangement. Ingraham v. Carroll, 1997, 90 N.Y.2d 592, 665 N.Y.S.2d 10, 687 N.E.2d 1293. See Commentary
C302:13, below.
Jurisdiction for defamation claims has, on occasion, successfully been based on the transaction category. CPLR 302(a)(1), unlike subdivisions (a)(2) and (3), does not exclude such claims from its coverage. In Montgomery v. Minarcin, 1999, 263 A.D.2d 665, 693 N.Y.S.2d 293 (3d Dep't), for example, a
Warren County prosecutor acquired jurisdiction over a television reporter who, while working for an
Albany television station, falsely reported on corruption implicating the prosecutor. The defamatory
newscasts were researched, written and reported by the defendant in New York. The plaintiff's claim,
therefore, was held to have arisen directly from defendant's “purposeful and extended transaction of
business as a journalist in this State.” Id. at 668, 693 N.Y.S.2d at 296. See also GTP Leisure Products,
Inc. v. B-W Footwear Co., 1977, 55 A.D.2d 1009, 391 N.Y.S.2d 489 (4th Dep't) (defamatory statements
made out of state concerning New York business transaction).
The connection between the defamation and the defendant's New York activities, however, must be substantial. Thus, in Talbot v. Johnson Newspaper Corp., 1988, 71 N.Y.2d 827, 527 N.Y.S.2d 729, 522
N.E.2d 1027, jurisdiction was denied where plaintiff, the coach of a New York college team, brought
suit for statements published in California by a former student about the coach's on-campus behavior.
The student's prior enrollment at the New York university was held to have an insufficient relationship
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to the cause of action.
The same outcome occurred in Copp v. Ramirez, 2009, 62 A.D.3d 23, 874 N.Y.S.2d 52 (1st Dep't),
leave to appeal denied 12 N.Y.3d 711, 882 N.Y.S.2d 397, 909 N.E.2d 1235. The defendants in that case
made allegedly defamatory statements in New Mexico concerning their arguably business-related observations of plaintiff at work at Ground Zero in the immediate aftermath of the 9/11 attacks. The defendants' trip to New York was of short duration and took place three years before the making of the
statements. Although the statements were eventually published in New York, the defendants' other New
York contacts were too far “separated in time” from those statements.
The Appellate Division also held that, even if the defendants' contacts satisfied the New York statute,
the assertion of jurisdiction would have violated due process. Regardless of minimum contacts with
New York, the second prong of the due process test--the requirement that the suit comply with
“traditional notions of fair play and substantial justice”--was not met. This prong of due process requires a finding, based on a balancing of multiple factors, that the exercise of jurisdiction in the particular case is reasonable. See Commentary C302:2, above. Here, the defendants all resided in New Mexico; the defamatory acts all occurred in New Mexico; the defendants' New York contacts were brief and
remote in time from the defamatory statements; the plaintiff did not reside in New York; and because
litigation on similar claims was already pending in a federal court in New Mexico, New York's assertion of jurisdiction “would not promote the interstate judicial system's shared interests in obtaining the
most efficient resolution of the controversy.”
The court makes much of the three-year time gap between the defendants' trip to New York and the utterance of the defamatory statements, both as a matter of statutory interpretation and due process.
Would the nexus between the claim and the defendants' New York contacts have been substantial
enough if the defendants had spoken about their New York transactions while still in New York? Within three days of their return to New Mexico? Within three months? Arguably, as the time span between
the New York activity and the alleged defamation widens, there is a corresponding diminution in the
defendant's reasonable expectation that he or she will be called upon to defend against those allegations
in New York.
In sum, the greater the remoteness of the cause of action from the defendant's New York activity in
terms of time, place and circumstances, the less likely will be the probability that the “arising from” requirement will be satisfied.
CPLR 302(a)(1) was amended in 1979 to permit the assertion of long-arm jurisdiction where the
plaintiff's cause of action arises from a contract “to supply goods or services in the state,” without regard to where the contract was made. This provision was intended to overcome judicial rulings that narrowly interpreted the meaning of “transaction of business in New York.” The Court of Appeals had
held, on more than one occasion, that the statute did not encompass the “mere shipment” of goods to
New York. To qualify for long-arm jurisdiction, any such shipment had to be part of a transaction in
which the defendant engaged in some relevant acts within New York. See, e.g., McKee Electric Co. v.
Rauland-Borg Corp., 1967, 20 N.Y.2d 377, 283 N.Y.S.2d 34, 229 N.E.2d 604; Kramer v. Vogl, 1966,
17 N.Y.2d 27, 267 N.Y.S.2d 900, 215 N.E.2d 159. See generally Commentary C302:6, above.
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As a general matter, however, a defendant who purposefully seeks to benefit from the New York commercial market by agreeing to ship goods or perform services here can reasonably expect to be sued in
New York for either faulty performance or nonperformance of the agreement. See Commentary C302:2,
above. Recognizing that due process would permit the assertion of jurisdiction in most such cases, the
Legislature was persuaded to add the supply-of-goods-or-services provision. See Report of the Law Revision Commission (1979), Leg.Doc.No. 65(C), McKinney's N.Y.Session Laws, 1979, at 1450-53.
Island Wholesale Wood Supplies, Inc. v. Blanchard Industries, Inc., 1984, 101 A.D.2d 878, 476
N.Y.S.2d 192 (2d Dep't), illustrates the applicability of the amended statute. The plaintiff, a New York
merchant, entered into an agreement in New Hampshire to buy a firewood processor from the defendant-manufacturer. Plaintiff's employees picked up the machine in New Hampshire and transported it to
New York. Shortly thereafter, employees of the manufacturer came to New York to help install the machine, instruct plaintiff's employees in its use and replace damaged parts. The manufacturer then retained another New Hampshire company to service plaintiff's machine, and one of this company's employees made a repair visit to New York. On these facts, plaintiff had jurisdiction for its breach of warranty and negligence action against both the manufacturer, which had contracted to supply goods in
New York, and the service company, which had contracted to supply services in the state.
In the Island Wholesale case, the agreement with the seller contained an “f.o.b. point of shipment”
clause. This did not preclude a finding that the agreement was to supply goods in New York, however,
because the defendant participated in the installation of the machine after its arrival here. As in the
transaction line of cases (Commentary C302:6, above), the quality and nature of the defendant's activity
must be considered. In Paradise Products Corp. v. Allmark Equipment Co., 1988, 138 A.D.2d 470, 526
N.Y.S.2d 119 (2d Dep't), for example, the New Jersey defendant agreed, in New Jersey, to sell an industrial-size copper kettle to the New York plaintiff. Title passed out of state when the plaintiff arranged to pick up the kettle rather than have defendant deliver it to New York. Plaintiff's New York suit
for breach of contract lacked jurisdiction, said the court, because the defendant's mere “knowledge that
a product may be destined for a particular forum is insufficient.” Id. at 471, 526 N.Y.S.2d at 120.
In a number of cases, the seller's inclusion of an f.o.b.-point-of-shipment clause did not insulate the defendant from jurisdiction because the defendant not only knew the goods were destined for New York
but also played a role in shipping them here. Seaman v. Fichet-Bauche North America, Inc., 1991, 176
A.D.2d 793, 575 N.Y.S.2d 122 (2d Dep't); Anderson Development Corp. v. Isoreg Corp., 1989, 154
A.D.2d 859, 546 N.Y.S.2d 720 (3d Dep't). See also Drake America Corp. v. Speakman Co., 1988, 144
A.D.2d 529, 534 N.Y.S.2d 679 (2d Dep't) (jurisdiction upheld despite “f.o.b. Wilmington, Delaware”
clause where contract also provided for consignment to warehouses in New York); Laumann Mfg.
Corp. v. Castings USA, Inc., E.D.N.Y.1996, 913 F.Supp. 712, 717 (“This court does not believe that the
New York State legislature intended to allow potential defendants to escape the reach of the Long-Arm
statute by inserting out-of-New York State F.O.B. terms into their contracts.”). Thus, f.o.b. terms are a
factor, but are not determinative, as to whether the defendant has contracted to supply goods in New
York within the meaning of the statute. See SBR Realty Corp. v. Pave-Mark Corp., 1991, 175 A.D.2d
240, 572 N.Y.S.2d 705 (2d Dep't) (defendant's shipment “f.o.b. Atlanta” was factor, considering totality
of circumstances, in finding that contract was not for supply of goods in New York). It is sometimes
difficult, if not impossible, to reconcile the outcomes in some of the f.o.b-point-of-shipment cases.
For claims based on the sale of goods or services over the internet, limitations imposed by due process
Page 39
are of particular significance. For example, Sayeedi v. Walser, 2007, 15 Misc.3d 621, 835 N.Y.S.2d 840
(N.Y.C.Civ.Ct.), disallowed a breach-of-contract action against an out-of-state seller who shipped an
automobile engine to a New York buyer pursuant to an internet auction conducted through “eBay.” Relying on several federal-court precedents, the Sayeedi court concluded that the defendant had not purposefully invoked the benefits and protections of New York law. By participating in the “unique sale
style” of eBay, the defendant was prepared to sell his engine to the highest bidder, regardless of the
state in which such bidder resided and without contemplation of delivery to any particular state: “In the
typical on-line auction sale the ultimate destination of any item is completely determined by the potential buyers through the bidding process.” 15 Misc.3d at 628, 835 N.Y.S.2d 846. Plaintiff provided no
evidence that the defendant was anything other than a casual user of the eBay system. Moreover,
plaintiff did not show that defendant had engaged in any marketing designed to solicit bids from New
Yorkers in particular.
The plaintiff need not necessarily be in privity with the defendant in order to take advantage of the supply-of-goods-or-services prong of CPLR 302(a)(1). The statutory requirement is simply that the cause
of action “arise from” the defendant's supply of goods or services in New York. In Island Wholesale,
for example, the agreement to service the plaintiff's machine was between the manufacturer-seller and
the service company. Similarly, in Seaman v. Fichet-Bauche North America, Inc., supra, the plaintiff,
who purchased a defective safe from A, was held to have jurisdiction for a breach of warranty claim
against B, the manufacturer of the safe. See also People v. Concert Connection, Ltd., 1995, 211 A.D.2d
310, 629 N.Y.S.2d 254 (2d Dep't), appeal dismissed 86 N.Y.2d 837, 634 N.Y.S.2d 445, 658 N.E.2d 223
(New York Attorney General could sue Connecticut defendants who, via telephone, sold tickets to New
York sports and entertainment events at grossly excessive resale prices and then sent tickets to the New
York purchasers); Alan Lupton Associates, Inc. v. Northeast Plastics, Inc., 1984, 105 A.D.2d 3, 482
N.Y.S.2d 647 (4th Dep't) (plaintiff, who was defendant's sales representative in New York, acquired
jurisdiction where defendant failed to pay commissions generated by one of defendant's contracts to
ship goods to New York buyer).
Claims for personal injuries by non-privity users of goods in New York have also been sustained under
the supply-of-goods-or-services provision. See, e.g., Torrioni v. Unisul, Inc., 1991, 176 A.D.2d 623,
575 N.Y.S.2d 66 (1st Dep't) (worker injured at New York construction site while operating machine
sold to New York purchaser for use in New York; defendant made several shipments to multiple buyers
in New York); Tonns v. Spiegel's, 1982, 90 A.D.2d 548, 455 N.Y.S.2d 125 (2d Dep't) (consumer injured while using recreational product sold to various New York retailers). In Tonns v. Spiegel's, the
court declared, “There is no basis in logic or law to conclude that a manufacturer who ships seriously
defective and dangerous goods into New York, knowing that the goods will be used by New York customers, need answer in New York only to the wholesalers and retailers who suffer breach of contract
monetary damages and not to the ultimate customers who suffer severe personal injuries as an ultimate
consequence of the shipments.” Id. at 549-50, 455 N.Y.S.2d at 127.
The supply-of-goods-or-services provision may also have utility in personal injury cases when the
product, although originally shipped to New York, has been taken out of state by a plaintiff who is injured while using it elsewhere. In such cases, CPLR 302(a)(3), which requires that the injury occur in
New York, is inapplicable. See, e.g., McGowan v. Smith, 1981, 52 N.Y.2d 268, 437 N.Y.S.2d 643, 419
N.E.2d 321. The challenge in such cases, if relying upon CPLR 302(a)(1), is to establish a sufficient
nexus between the contract and the cause of action. See McGowan v. Smith, supra. Moreover, due pro-
Page 40
cess must be satisfied. In some cases, defendant's knowledge that a small number of shipments of its
goods are destined for New York will not be enough, even if injuries occur in New York, to comply
with due process. See, e.g., Carpino v. National Store Fixtures Inc., 2000, 275 A.D.2d 580, 712
N.Y.S.2d 684 (3d Dep't), appeal denied 95 N.Y.2d 769, 722 N.Y.S.2d 472, 745 N.E.2d 392.
The Court of Appeals' brief memorandum decision in Etra v. Matta, 1984, 61 N.Y.2d 455, 474
N.Y.S.2d 687, 463 N.E.2d 3, suggests that the supply-of-goods-or-services prong of CPLR 302(a)(1)
can be used only when the relevant contract is economically substantial. In Etra, a patient was treated in
a Massachusetts hospital by the defendant physician and given a certain prescription drug, the use of
which was to continue upon her return to New York. Thereafter, the defendant, through consultation
with a New York physician, sent an additional quantity of the drug to the patient. The Court said that
the “Legislature, in enacting this additional jurisdictional basis, was not concerned with limited provision of supplies incident to medical treatment as occurred in this case.” Id. at 459, 474 N.Y.S.2d at 689,
463 N.E.2d at 4.
Additional limitations on the application of the supply-of-goods-or-services provision are inherent in
the language of the statute. An agreement to pay money in New York, for example, does not easily fall
within the definition of “supplying goods or services.” Thus, jurisdiction has been rejected in actions
for nonpayment of promissory notes payable by their terms in New York if the agreements in question
were made outside New York. See, e.g., First National Bank & Trust Co. v. Wilson, 1991, 171 A.D.2d
616, 567 N.Y.S.2d 468 (1st Dep't); American Recreation Group, Inc. v. Woznicki, 1982, 87 A.D.2d 600,
448 N.Y.S.2d 51 (2d Dep't). The issue is not one of constitutional limits, but one of statutory interpretation.
Courts have shown receptivity, however, to the assertion of jurisdiction over a nondomiciliary who has
failed to honor a contractual guarantee for a third party, executed outside the state, that requires the
guarantor to perform services or pay money in New York. The Court of Appeals held in Ferrante
Equipment Co. v. Lasker-Goldman Corp., 1970, 26 N.Y.2d 280, 309 N.Y.S.2d 913, 258 N.E.2d 202,
that such an arrangement did not qualify as a transaction of business in New York, but the Law Revision Commission noted that the Ferrante case would be “subject to reevaluation” under the 1979
amendment to CPLR 302(a)(1). Report of the Law Revision Commission (1979), Leg.Doc.No. 65(C),
McKinney's N.Y.Session Laws, 1979, at 1450, 1454 n.3.
One of the earliest cases decided under the amendment to subdivision (a)(1), Culp & Evans v. White,
1981, 106 Misc.2d 755, 435 N.Y.S.2d 248 (Sup.Ct.Erie Co.), held that a personal guaranty, signed and
delivered in Texas, to secure the performance of a construction contract in New York fell within the
scope of the new language. The guarantor had agreed to complete the performance of the construction
in New York, and this, said the court, was sufficient to subject the guarantor to jurisdiction for breach
of the agreement. Another court, however, refused to apply the new provision where the contract was
not to guarantee the completion of physical performance but rather to guarantee payment of a financial
obligation in New York. Waldorf Associates, Inc. v. Neville, 1988, 141 Misc.2d 150, 533 N.Y.S.2d 182
(Sup.Ct.N.Y.Co.), affirmed 155 A.D.2d 283, 547 N.Y.S.2d 556 (1st Dep't). The Waldorf court held that
promising to pay money upon the financial default of another party, unlike the performance of work and
labor, is not a “service.”
Two Appellate Division decisions, however, have held that a guarantee of payment in New York quali-
Page 41
fies for jurisdiction. State Bank of India v. Taj Lanka Hotels Ltd., 1999, 259 A.D.2d 291, 686 N.Y.S.2d
44 (1st Dep't); Rielly Co. v. Lisa B. Inc., 1992, 181 A.D.2d 269, 586 N.Y.S.2d 668 (3d Dep't). See also
A.I. Trade Finance, Inc. v. Petra Bank, C.A.N.Y.1993, 989 F.2d 76. It is submitted that this broader
reading of CPLR 302(a)(1) is the preferable one. As a matter of statutory interpretation, there is no reason why “services” must be confined to the idea of physical labor. In today's world of finance, in which
New York plays a central role, guaranteeing the payment of financial obligations can be a very significant “service” that facilitates countless business ventures. There is surely no constitutional impediment,
as a general matter, to this interpretation. A party who deliberately guarantees payment in New York
has purposefully directed his or her activity toward New York, can foresee direct consequences flowing
from breach of the agreement and should reasonably anticipate being sued in New York for such
breach. See Commentary C302:2, above. If, in a given case, New York's connection to the parties and
their contract is purely incidental, the fair-play-and-substantial-justice prong of minimum contacts analysis provides a safety valve against an unreasonable assertion of jurisdiction. See id.
Commentary C302:7, above, discusses situations in which a defendant need not be physically present in
New York in order to transact business here for purposes of long-arm jurisdiction. Similarly, services
can sometimes be provided in New York without the bodily presence of the provider. Liberatore v.
Calvino, 2002, 293 A.D.2d 217, 742 N.Y.S.2d 291 (1st Dep't), held that a Rhode Island lawyer was
subject to jurisdiction based on his contract to provide legal services in New York, all of which were
performed entirely by telephone calls and mail to and from the lawyer at his out-of-state office. By
these modes of communication over a three-year period, the defendant “secured New York no-fault benefits to cover [his out-of-state client's] ongoing medical bills, obtained [her] medical records from Bellevue Hospital in New York City ... , investigated her accident by contacting the New York Police Department and the bus company, on several occasions threatening to commence a legal action in New
York.” Id. at 218, 742 N.Y.S.2d at 291. He eventually arranged for a New York attorney to prosecute
his client's personal injury case in New York and agreed to continue long-distance involvement in settlement negotiations. New York jurisdiction existed for the client's malpractice claim against the lawyer
because he had “projected himself into the State to perform services by contracting with plaintiff to legally represent her here for purposes of obtaining a favorable settlement of her New York personal injury
claim from New York tortfeasors in accordance with New York law.” Id. at 221, 742 N.Y.S.2d at 293.
See also Pomerantz v. Wolfin, 1997, 236 A.D.2d 379, 653 N.Y.S.2d 37 (2d Dep't) (patient had jurisdiction over out-of-state laboratory that analyzed biopsy and provided services in New York by sending report to patient's treating physician in New York). But see Bank Brussels Lambert v. Fiddler Gonzalez &
Rodriguez, C.A.N.Y.1999, 171 F.3d 779 (Puerto Rican law firm's knowledge that its opinion letter
would be relied on at New York closing of international loan transaction did not rise to level of providing services in New York).
Subdivision (a)(2): Tortious Act Within the State.
CPLR 302(a)(2) confers long-arm jurisdiction for a cause of action arising from a tortious act committed by the defendant (or defendant's agent) within the state. This provision is the conceptual descendant
of the “non-resident motorist statute,” § 253 of the Vehicle and Traffic Law. That statute was originally
justified by the rationale that a nondomiciliary who drives a motor vehicle on a New York highway im-
Page 42
pliedly consents to the appointment of the New York Secretary of State as an agent for service of process in any New York action arising from an accident caused by the use of the vehicle. See Practice
Commentaries on CPLR 301, at C301:6, supra. The modern rationale of CPLR 302(a)(2) is based on the
fairness of subjecting a nondomiciliary to jurisdiction whenever her in-state tortious conduct is the
cause of local harm, regardless of the type of tort.
CPLR 302(a)(2) is both broader and narrower than § 253 of the Vehicle and Traffic Law. It is broader
in that it applies to any type of tortious act committed in New York--negligence, assault, fraud, conversion, violation of right of privacy, breach of fiduciary duty, tortious interference with contractual relations, etc. (with an exception for defamation, discussed below)--and service of process can be made by
any of the methods in CPLR Article 3. See CPLR 313. It is narrower in that a defendant who is not herself the tortfeasor is subject to jurisdiction under CPLR 302(a)(2) only if the actor was the defendant's
“agent.” Under Veh. & Traf. Law § 253(1), the nondomiciliary owner of a vehicle is subject to jurisdiction whenever the vehicle was being driven in New York with her permission, regardless of whether the
driver was an agent.
CPLR 302(a)(2), unlike its counterpart in some other states (see, e.g., Gray v. American Radiator &
Standard Sanitary Corp., 1961, 22 Ill.2d 432, 176 N.E.2d 761), has been narrowly construed to apply
only when the defendant's wrongful conduct is performed in New York. The defining case was Feathers
v. McLucas, 1965, 15 N.Y.2d 443, 448, 261 N.Y.S.2d 8, 19, 209 N.E.2d 68, 76, certiorari denied 382
U.S. 905, 86 S.Ct. 241, 15 L.Ed.2d 158. In Feathers, the defendant manufactured a steel tank in Kansas
and sold it to a Missouri company with knowledge that the tank would be mounted on a wheelbase and
resold to a Pennsylvania company for the interstate transportation of propane gas. The tank exploded on
a New York highway, injuring the plaintiffs.
The Court of Appeals rejected the applicability of CPLR 302(a)(2) because the tortious act--defendant's
negligent manufacturing of the tank--occurred in Kansas, not New York. Applying a plain language
analysis, the Court held that “tortious act within the state” refers to the defendant's conduct, not its injurious consequences. Without denying the constitutionality of asserting jurisdiction on the given facts,
the operative phrase of CPLR 302(a)(2) was simply not “synonymous with ‘commits a tortious act
without the state which causes injury within the state.’ ” 15 N.Y.2d at 460, 261 N.Y.S.2d at 21, 209
N.E.2d at 77. (CPLR 302(a)(3) was adopted in response to the Feathers case).
The Feathers Court's reasoning was also applied in Kramer v. Vogl, 1966, 17 N.Y.2d 27, 267 N.Y.S.2d
900, 215 N.E.2d 159, to deny jurisdiction over a fraud claim based on a foreign seller's misrepresentations that occurred in Austria in connection with its shipment of goods to plaintiff in New York.
Plaintiff argued that the last act of the fraud was the arrival of the goods in New York, but the Court insisted that the defendant's conduct--here, the misrepresentation--must occur within the state. Similarly,
in Platt Corp. v. Platt, 1966, 17 N.Y.2d 234, 270 N.Y.S.2d 408, 217 N.E.2d 134, a Florida domiciliary
could not be sued in New York for failing to attend New York meetings of the board of the corporation
of which he was a director. With respect to torts of omission, the Court said, “The failure of a man to do
anything at all when he is physically in one State is not an ‘act’ done or ‘committed’ in another State....
To treat an ‘omission’ as an ‘act’ in a particular place, one must be there to do or to omit the act.” Id. at
237, 270 N.Y.S.2d at 410, 217 N.E.2d at 135.
Consistent with these narrow interpretations of the language of CPLR 302(a)(2), “breach of contract”
Page 43
does not qualify as a “tortious act” for purposes of the subdivision. See Fantis Foods, Inc. v. Standard
Importing Co., 1980, 49 N.Y.2d 317, 324, 425 N.Y.S.2d 783, 785, 402 N.E.2d 122, 124.
The Feathers, Kramer, and Platt decisions have been interpreted as requiring that the defendant (or defendant's agent) be physically present in New York at the time of the tortious act in order to fall within
the reach of CPLR 302(a)(2). In an oft-cited hypothetical, Judge McLaughlin wrote in the original Practice Commentaries on CPLR 302 that subdivision (a)(2) would be unavailable to an injured plaintiff
even “if a New Jersey domiciliary were to lob a bazooka shell across the Hudson River at Grant's
Tomb.”
The apparent requirement of a physical presence is reflected in lower court decisions. For example, a
majority of the Appellate Division in Bauer Industries, Inc. v. Shannon Luminous Materials Co., 1976,
52 A.D.2d 897, 383 N.Y.S.2d 80 (2d Dep't), held that a nondomiciliary's mailing of a letter containing
fraudulent representations to New York was not a tortious act “within the state.” The dissenters argued,
plausibly, that the tortious act included the plaintiff's reliance on the false statement, which did not occur until plaintiff read the letter in New York. The receipt of the letter, in other words, was not merely a
“consequence” or “injury” in New York--it was an integral part of the tortious act itself. Nevertheless,
most courts, adhering to the restrictive approach, have refused to apply CPLR 302(a)(2) to claims based
on tortious statements that made their way to New York only by mail or telephone. See, e.g., Stein v.
Annenberg Research Institute, 1991 WL 143400 (S.D.N.Y.) (tortious interference with contractual relations).
Some courts have resisted the traditional view. For example, the court in Banco Nacional Ultramarino,
S.A. v. Chan, 1996, 169 Misc.2d 182, 641 N.Y.S.2d 1006 (Sup.Ct.N.Y.Co.), affirmed 240 A.D.2d 253,
659 N.Y.S.2d 734 (1st Dep't), held that a defendant who converted funds on deposit in a New York
bank did not have to be present in New York in order to fall within the reach of § 302(a)(2). The defendant, a Nigerian company, maintained an account in a New York City bank. From overseas, the defendant issued instructions to the bank to receive and transfer the money in question. The court declared
that “to allow a defendant to conspire and direct tortious activities in New York, in furtherance of that
conspiracy, and then avoid jurisdiction because it directs those activities from outside the state or country, is to ignore the reality of modern banking and computer technology in the end of the twentieth century!” Id. at 188, 641 N.Y.S.2d at 1009. The court concluded that “[a] defendant with access to computers, fax machines etc., no longer has to physically enter New York to perform a financial transaction
which may be criminal or tortious.... [T]he emphasis should be on the locus of the tort, not whether defendant was physically here when the tortious act occurred.” Id. at 188, 641 N.Y.S.2d at 1010.
A few federal courts applying CPLR 302(a)(2) in the context of trademark infringement actions have
upheld jurisdiction on the basis of mailings to New York containing the infringing material. See, e.g.,
Citigroup Inc. v. City Holding Co., S.D.N.Y.2000, 97 F.Supp.2d 549, 567 (“The attempt to pass off
these marks ... occurred within New York because that is where the marks were received and viewed by
the direct mailing recipients.”). See also Sipa Press, Inc. v. Star-Telegram Operating, Ltd., 1999, 181
Misc.2d 550, 556, 694 N.Y.S.2d 850, 854 (Sup.Ct.N.Y.Co.) (New York distributor of photographs that
infringed third party's copyright could assert jurisdiction under § 302(a)(2) for indemnity claim against
Texas supplier who transmitted photos to plaintiff in New York and telephonically committed fraud by
inducing plaintiff to make distribution).
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With respect to trademark infringement on the internet, however, the Second Circuit held in Bensusan
Restaurant Corp. v. King, C.A.N.Y.1997, 126 F.3d 25, that the Missouri creator of a web site accessible
by New York viewers could not be sued in New York pursuant to CPLR 302(a)(2). The acts giving rise
to the lawsuit--creation of the site and misuse of the New York plaintiff's name and logo--were performed by persons physically present in Missouri, not in New York. Id. at 29.
Significantly, the web site in Bensusan did nothing more than display the infringing mark. The district
court in Citigroup Inc. v. City Holding Co., supra, concluded that such “passive” web sites should not,
as a policy matter, be deemed to infringe wherever they are viewed: “[L]iteral application of the ‘where
viewed’ rule would result in jurisdiction anywhere in the world in every infringement case involving a
web site.” 97 F.Supp.2d at 567. On the other hand, the court held that tortious acts occur within New
York to the extent the web site provides a “chat room” by which the infringing mark is transmitted to
New York residents through an exchange of messages. Id. It remains to be seen whether the distinction
drawn by the Citigroup court between passive and interactive web sites will hold up with respect to the
applicability of CPLR 302(a)(2).
Defamation claims are explicitly excluded from the coverage of subdivision (a)(2). The exclusion is
based on a policy decision that recognizes the ease with which a written or oral utterance may occur in
New York, thereby subjecting numerous individuals and media organizations to suit in New York despite their potentially remote connection to the state. This statutory limitation, however, is not compelled
by first amendment considerations. The Supreme Court held in Calder v. Jones, 1984, 465 U.S. 783,
104 S.Ct. 1482, 79 L.Ed.2d 804, that the “potential chill on protected First Amendment activity stemming from libel and defamation actions is already taken into account in the constitutional limitations on
the substantive law governing such suits.” Id. at 790, 104 S.Ct. at 1487, 79 L.Ed.2d at 813. The due process issue is simply whether the defendant has purposefully directed his defamatory activity toward the
forum and has enjoyed the privilege of conducting activity there. See Commentary C302:2, above.
Although the defamation exclusion also appears in subdivision (a)(3), no such limitation is to be found
in subdivision (a)(1). Thus, long-arm jurisdiction will be available if the defamation cause of action
bears a substantial nexus to a transaction of business by the defendant in New York or a contract to supply goods or services in New York. See Commentary C302:8, above.
Subdivision (a)(3): Tortious Act Outside New York Causing Injury Within the State.
CPLR 302(a)(3) provides a potential basis for long-arm jurisdiction when the plaintiff has been injured
in New York as a result of the defendant's out-of-state tortious act. Subdivision (a)(3) was added to
CPLR 302 in 1966 in response to the narrow reading that the Court of Appeals gave to subdivision
(a)(2), as discussed in Commentary C302:10, above.
More is required, however, than a tortious injury in New York. The plaintiff must establish at least one
of the additional contacts between defendant and the state of New York in either subset (i) or subset (ii).
The two conditions are specified in the alternative: “[E]ither, but not both, must be satisfied.”
N.Y.Jud.Conf., Twelfth Ann.Rep. 339, 343 (1967) [hereinafter cited as Jud.Conf.Rep.]. The purpose of
subsets (i) and (ii) is to ensure the fairness of asserting jurisdiction over nondomiciliaries whose out-
Page 45
of-state acts cause local injury. Id. at 343.
Assertions of jurisdiction under CPLR 302(a)(3) occasionally will lie at the outer fringes of the permissive scope of due process. See Commentary C302:2, above. The decision of the Court of Appeals in
LaMarca v. Pak-Mor Mfg. Co., 2000, 95 N.Y.2d 210, 713 N.Y.S.2d 304, 735 N.E.2d 883, however,
teaches that the analysis must begin with the applicability of the statute itself, not an examination of
compliance with minimum contacts. If the plaintiff's case falls outside the terms of the statute, there is
no need to consider due process. Id. at 214, 713 N.Y.S.2d at 307, 735 N.E.2d at 886. The limitations of
due process must be analyzed only if CPLR 302(a)(3) appears to authorize jurisdiction over the particular defendant. 95 N.Y.2d at 216, 713 N.Y.S.2d at 308, 735 N.E.2d at 887. On the other hand, the question whether due process may be offended is often taken into account in the construction and application of the statutory terms. See, e.g., Fantis Foods, Inc. v. Standard Importing Co., 1980, 49 N.Y.2d
317, 327, 425 N.Y.S.2d 783, 787, 402 N.E.2d 122, 126 (long-arm statute should be construed so as to
avoid “grave doubts” concerning constitutionality).
The threshold questions in applying CPLR 302(a)(3) are whether the allegations of the complaint concern (1) a tortious act, and (2) whether the act caused injury within the state of New York. As to the
first issue, the Court of Appeals has made it clear that subdivision (a)(3) cannot be used to sustain a
breach of contract cause of action even if the same facts give rise to a claim of tort liability. Fantis
Foods, Inc. v. Standard Importing Co., supra, 49 N.Y.2d at 324, 425 N.Y.S.2d at 785, 402 N.E.2d at
124. Whether the alleged facts give rise to potential tort liability is an issue that overlaps with the merits-based question of whether the complaint states a cause of action. See Commentary C302:5, above.
All types of tortious acts (other than defamation) fall within the scope of coverage. See Commentary
C302:10, above.
The second threshold question is whether injury occurred “within the state.” Localizing the situs of injury is fairly straightforward in the run of personal injury cases. Assume, for example, that an electrical
power tool defectively manufactured in Kansas exploded and burned the plaintiff in New York. Obviously, this is a case of injury within the state. What if the tool, which was originally shipped to New
York, exploded and burned the New York resident while she was doing repair work at her cousin's
house in Connecticut? If she continues to experience pain and suffering upon her return to New York,
perhaps losing income due to an inability to work at her New York place of employment, has there been
“injury within the state”? On such facts, the answer is plainly “no.”
New York does not become the situs of injury merely because the plaintiff is a domiciliary or resident
of New York. McGowan v. Smith, 1981, 52 N.Y.2d 268, 274-75, 437 N.Y.S.2d 643, 646, 419 N.E.2d
321, 324. In Hermann v. Sharon Hospital, Inc., 1987, 135 A.D.2d 682, 522 N.Y.S.2d 581 (2d Dep't),
for example, a New York malpractice plaintiff who was treated by physicians in Connecticut did not
suffer injury in New York, within the meaning of CPLR 302(a)(3), merely because “resultant damages
[were] subsequently felt by the plaintiff” in New York. Id. at 683, 522 N.Y.S.2d at 583. The court declared that injury occurs in New York only if New York is “the location of the original event which
caused the injury.” Id. See also Vaichunas v. Tonyes, 2009, 61 A.D.3d 850, 877 N.Y.S.2d 204 (2d
Dep't) (New York plaintiff who was injured when exiting bus in New Jersey did not suffer injury in
New York merely because she sought medical treatment in New York); Porcello v. Brackett, 1981, 85
A.D.2d 917, 446 N.Y.S.2d 780 (4th Dep't) (in wrongful death action in which decedent was killed in
Ohio, survivors did not suffer injury to their property rights in New York); Kramer v. Hotel Los
Page 46
Monteros S.A., 1977, 57 A.D.2d 756, 394 N.Y.S.2d 415 (1st Dep't), appeal denied , 1978, 43 N.Y.2d
649, 403 N.Y.S.2d 1028, 374 N.E.2d 1249 (plaintiff who was bitten by dog in Spain did not suffer injury in New York even though most severe medical results of bite did not become manifest until
plaintiff returned to New York); Faherty v. Fender, S.D.N.Y.1983, 572 F.Supp. 142, 150 (New York
plaintiff's credit impairment and emotional distress suffered as result of fraudulent judgment entered in
Texas were mere “derivative injuries”).
The narrow reading that courts have given to “injury within the state” is motivated in large part by
policy considerations. An expansive reading, one court observed, would open the floodgates to litigation in New York whenever a potential defendant has been involved in an out-of-state accident with a
New York resident. Black v. Oberle Rentals, 1967, 55 Misc.2d 398, 400, 285 N.Y.S.2d 226, 229
(Sup.Ct.Onondaga Co.). Furthermore, the narrow approach conforms “to the rule that a statute is to be
construed so as to avoid grave doubts concerning its constitutionality.” Fantis Foods, Inc. v. Standard
Importing Co., supra, 49 N.Y.2d at 327, 425 N.Y.S.2d at 787, 402 N.E.2d at 126.
Query, however, whether the Hermann court's requirement that the “original event” occur in New York
may be overly strict when applied in some cases. The potential for a more nuanced approach was suggested in Ingraham v. Carroll, 1997, 90 N.Y.2d 592, 665 N.Y.S.2d 10, 687 N.E.2d 1293. This was a
wrongful death action in which the decedent, a New York resident, was referred by her HMO to a physician in Vermont for consultation regarding potentially cancerous growths. On two occasions when the
defendant examined decedent in Vermont, he sent instructions to her HMO doctors in New York to
simply continue their observations and not to conduct any exploratory procedures. After a third visit,
however, the seriousness of her condition was discovered and she eventually died in New York. The
suit alleged that the defendant's original misdiagnoses and faulty recommendations to the New York
physicians caused her cancer to spread and take her life in New York.
The Appellate Division rejected jurisdiction on the ground that no injury occurred in New York because
Vermont was the situs of the “original event.” The Court of Appeals, however, affirmed dismissal of the
action on the separate ground that none of the additional New York contacts required by subsets (i) or
(ii) were present. See Commentaries C302:12 and C302:13, below. With respect to situs of the injury,
the Court assumed, without deciding, that the patient's injury occurred in New York.
The Court's avoidance of the situs issue provides some reason to believe that there is discomfort with
the notion that injury can occur in New York within the meaning of the statute only if New York is the
location of the “original event.” Two judges who dissented from the majority's ruling with respect to the
application of subsets (i) and (ii) expressly declared that the “locus of injury for ... jurisdictional purposes is more of an open question than the rigid response in law up to now has indicated.” 90 N.Y.2d at
604, 665 N.Y.S.2d at 16, 687 N.E.2d at 1299. They urged “a progressive reassessment as to where the
law is or ought to be.” Id. at 604, 665 N.Y.S.2d at 16-17, 687 N.E.2d at 1299. A plaintiff who brings
her pained and suffering body to New York following a completed tort that initiated the injury elsewhere is one thing; a plaintiff whose pain and suffering (or death) in New York is the continuing and
direct result of treatment that was or was not performed here in reliance on the defendant's purposeful
across-the-border advice is quite another. Arguably, the injury in Ingraham was produced by multiple
events, some of which occurred in Vermont and others in New York. Clearly, Ingraham involves more
than mere knowledge on the part of the defendant that the plaintiff was a New York resident.
Page 47
In a medical malpractice action, the Supreme Court, Bronx County, rejected the entire premise of the
prevailing “original event” test as contrary to the legislative purpose of CPLR 302(a)(3). Reyes v. Sanchez-Pena, 2002, 191 Misc.2d 600, 742 N.Y.S.2d 513 (Sup.Ct.Bronx Co.). The plaintiff in Reyes was a
New York resident who began treatment in New York with a doctor who eventually referred her to a
medical entity in New Jersey in which the doctor was a principal officer. He also arranged for plaintiff's
free transportation to the New Jersey facility--a service regularly provided to the entity's New York patients by drivers employed by the entity--where she received a series of injections that allegedly caused
injury to her arm and hand.
Traditional application of the “original event” rule would place the plaintiff's injury in New Jersey because it was there that the “original injury” occurred. See, e.g., Hermann v. Sharon Hospital, Inc.,
supra. The court, however, accepted the invitation of the dissenters in the Court of Appeals decision in
Ingraham v. Carroll to reassess the issue. In the Reyes court's view, CPLR 302(a)(3) ought to be liberally applied because its adoption represented a legislative effort to “protect and broaden the rights of injured New York residents” following the Court of Appeals' restrictive interpretation of the long-arm
statute in Feathers v. McLucas. See Commentary C302:10, above.
The court found nothing in the statute or its legislative history that would preclude the exercise of jurisdiction where consequential damages or suffering, as compared to original injury, occur in New York.
In medical malpractice cases, in particular, the severity of an injury that technically occurs outside the
state may not become “manifest” until after the patient has returned to New York. CPLR 302(a)(3)'s additional “safeguards” in subsets (i) and (ii)--defendant must either be engaged in ongoing activity in
New York or derive substantial revenue from interstate commerce--provide a sufficient answer to the
concern that liberal interpretation of the situs-of-injury component will “open the floodgates” to litigation in New York. In the instant case, for example, the defendant was engaged in a “persistent course of
conduct in New York” by providing a free shuttle service for New York patients to its New Jersey facility based on regular and ongoing referrals from one of its principal officer-physicians who treated and
diagnosed patients in New York. Hence, New York jurisdiction was reasonable. The Reyes court also
upheld jurisdiction on the alternative ground that the claim arose out of the defendant's transaction of
business in New York (CPLR 302(a)(1)).
In the context of commercial torts, where damages are solely economic in nature, the Court of Appeals
has addressed the situs-of-injury problem by asking whether there has been a “direct injury” in New
York. An overall diminution in the net worth of a plaintiff domiciled or incorporated in New York will
not suffice. Thus, in Fantis Foods, Inc. v. Standard Importing Co., 1980, 49 N.Y.2d 317, 425 N.Y.S.2d
783, 402 N.E.2d 122, jurisdiction was rejected over a Greek supplier who allegedly converted several
barrels of cheese while the goods were at sea en route from Greece to Chicago. Although the wholesale
purchaser was a New York corporation with offices in New York, its allegations of lost profits in New
York was speculative. Because the cheese was to have been delivered to Chicago, no inferences could
be drawn concerning loss of New York sales. On such facts, any financial loss in New York was
“indirect” and “remote.” 49 N.Y.2d at 326-27, 425 N.Y.S.2d at 787, 402 N.E.2d at 126.
In Sybron Corp. v. Wetzel, 1978, 46 N.Y.2d 197, 413 N.Y.S.2d 127, 385 N.E.2d 1055, on the other
hand, financial injury in New York was found where defendant's acts threatened a loss of important
New York sales. The plaintiff in Sybron was a manufacturer that had a facility in New York and serviced several New York customers. The defendant was a New Jersey competitor that planned to hire
Page 48
one of plaintiff's former employees allegedly with a view toward stealing trade secrets he had acquired
while working at plaintiff's New York facility. Plaintiff's suit to enjoin the employment was properly
predicated on CPLR 302(a)(3), the Court held, because defendant's tortious act in New Jersey posed a
significant threat of lost business in New York, including the loss of plaintiff's major customer, the
Eastman Kodak Company. 46 N.Y.2d at 205-06, 413 N.Y.S.2d at 131-32, 385 N.E.2d at 1058-59. (Sybron also held that CPLR 302(a)(3) can be used as a basis of jurisdiction where the tort has not yet been
committed. To preclude anticipatory injunctive relief, said the Court, would produce “unacceptable”
results. 46 N.Y.2d at 204, 413 N.Y.S.2d at 131, 385 N.E.2d at 1058).
Thus, it is clear in the case of plaintiff sellers that the loss of New York customers will satisfy the requirement of injury in New York. See also American Eutectic Welding Alloys Sales Co. v. Dytron Alloys Corp., C.A.N.Y.1971, 439 F.2d 428, 435 (loss of customers outside New York may also qualify as
injury in New York if “discernible local impact” in New York is great enough).
Other decisions in which courts have struggled with the situs problem in the context of commercial injuries include Weiss v. Greenburg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, P.A., 1981, 85
A.D.2d 861, 446 N.Y.S.2d 447 (3d Dep't) (legal malpractice by Florida law firm in foreclosure of
plaintiff's mortgage on Florida property did not cause injury in New York merely because plaintiff, a
New York domiciliary, suffered “pecuniary diminution”; all “critical events associated with the dispute” occurred in Florida); Mid-Atlantic Residential Investors Limited Partnership v. McGuire, 1990,
166 A.D.2d 205, 560 N.Y.S.2d 431 (1st Dep't) (necessity of defending lawsuit in New York was, at
most, “remote consequence” of bad investment advice given in California); Mareno v. Rowe,
C.A.N.Y.1990, 910 F.2d 1043 (New York resident who worked in New Jersey suffered “original injury” in New Jersey upon discharge from job; subsequent economic hardship in New York as result of
such discharge did not provide basis under CPLR 302(a)(3)).
The Second Circuit Court of Appeals has suggested that the “original event” be abandoned as the governing test for ascertaining the situs of plaintiff's injury under CPLR 302(a)(3). The federal appeals
court would restate the rule as a requirement that the “first effect” of the tortious act be experienced by
the plaintiff in New York. DiStefano v. Carozzi North America, Inc., C.A.N.Y.2001, 286 F.3d 81, 84-85
. It is submitted that the federal court's reformulation is preferable to the phraseology currently used by
the state courts because it helps avoid applications of the statute that conflate the tortious act with its
consequences.
Such blending of the injury with the precipitating tortious act led to error by the trial court in the DiStefano case. There, the plaintiff was a New York resident who undertook the performance of marketing
and sales services in New York on behalf of an out-of-state employer. A few months after his employment began, plaintiff was terminated, prompting his commencement of a federal diversity action in New
York alleging violations of anti-discrimination laws. The employer's termination decision, which the
district judge characterized as the “original event that caused plaintiff's injury,” occurred in New Jersey,
thus depriving the court of jurisdiction.
The Second Circuit reversed, holding that the decision to discharge the employee on improper grounds,
which occurred in New Jersey, was the relevant “tortious act without the state.” As to the plaintiff's injury, the “original event” was his “experience of being removed from his job.” Using its own articulation of the situs-of-injury test, the court said that the plaintiff, because he performed all of his employ-
Page 49
ment duties in New York, “experienced the ‘first effect’ of losing his job in New York, even though he
was fired in New Jersey.” 286 F.3d at 85. The court distinguished Mareno v. Rowe, C.A.N.Y.1990, 910
F.2d 1043, where the New York plaintiff worked for the defendant in New Jersey. There, the first effect
of the plaintiff's wrongful discharge occurred in New Jersey, situs of the employment. See also Bank
Brussels Lambert v. Fiddler Gonzales & Rodriguez, C.A.N.Y.1999, 171 F.3d 779, 792 (lender's disbursement of funds from New York bank account was “first effect” or “original [injurious] event” of
out-of-state law firm's failure to warn lender of damaging facts about borrower).
C302:12. Subset (i): Ongoing Activity in the State.
Subset (i) of CPLR 302(a)(3) is a list of four alternative forms of ongoing New York activity by defendant, any one of which, when combined with defendant's commission of a tortious act outside the state
causing injury within the state, will permit the assertion of long-arm jurisdiction. Plaintiff's cause of action need not arise out of the activity described in subset (i); the “arising from” requirement of the statute is satisfied if the cause of action arises from defendant's out-of-state tortious act. The intent of the
condition imposed by subset (i) is to ensure that jurisdiction is exercised only over tortfeasors “who
have sufficient contacts with this state so that it is not unfair to require them to answer in this state for
injuries they cause here by acts done elsewhere.” N.Y.Jud.Conf., Twelfth Ann.Rep. 339, 343 (1967)
[hereinafter cited as Jud.Conf.Rep.]. Thus, each of the four alternative contacts in subset (i) constitutes
“a regular course of conduct in the state.” Id. at 343.
The first ongoing activity that can provide the required plus factor is “regularly doing business” in the
state. This alternative has an odd ring to it because a defendant who is “doing business” in New York
under traditional standards, at least if it is a foreign corporation, is subject to general personal jurisdiction under CPLR 301, i.e., it can be sued here on any cause of action regardless of where the events occurred. See Practice Commentaries on CPLR 301, at C301:8, supra. If the defendant is doing business
in New York, CPLR 302 is superfluous. The drafters of CPLR 302(a)(3)(i), however, said that the
amount of business that must be done to satisfy subparagraph (i) is less than that which is required to
satisfy the conventional doing business standard. Jud.Conf.Rep., supra, at 343, footnote. On the other
hand, the doing business condition specified in subset (i) requires something more than the “one shot”
business transaction described in CPLR 302(a)(1). Jud.Conf.Rep., supra, at 343. Another value of the
doing business condition in subset (i) is that it will confer jurisdiction over individual proprietors who
are doing business in New York and whose out-of-state tortious act causes injury in New York. As discussed in the Practice Commentaries on CPLR 301, at C301:10, supra, it is uncertain whether the conventional doing business basis for general in personam jurisdiction is applicable to unincorporated defendants.
The second potential ongoing activity in subset (i) is “regularly soliciting business” in the state. This
contact will overcome the traditional New York rule that a defendant who “merely solicits” business in
New York is not subject to general jurisdiction. See Practice Commentaries on CPLR 301, at C301:8,
supra. Even if that restriction is still operative with respect to the acquisition of general jurisdiction, a
defendant who regularly solicits business in New York and also commits a tortious act outside the state
causing injury in New York will fall within the reach of the long-arm statute.
The third item in the list of potential ongoing activity is a catchall: “any other persistent course of conduct” within the state. Allen v. Marais, S.A., 2003, 307 A.D.2d 613, 762 N.Y.S.2d 188 (3d Dep't)
Page 50
(manufacturer that made injury-causing product in France regularly sent employees to New York to
make repairs and provide training and supervision for use of product); Reyes v. Sanchez-Pena, 2002,
191 Misc.2d 600, 742 N.Y.S.2d 513 (Sup.Ct.Bronx Co.) (New Jersey medical entity arranged for transit
of New York patients to and from New Jersey facility based on regular and ongoing referrals from New
York-based physician who was officer of New Jersey entity). There is no reason to suppose that the ongoing conduct contemplated by this alternative must be exclusively business-related. One of the few reported decisions construing this provision, for example, suggested that it might be broad enough to cover an out-of-state student who regularly attended a university within New York. Porcello v. Brackett,
1981, 85 A.D.2d 917, 446 N.Y.S.2d 780 (4th Dep't). See also Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, C.A.N.Y.2002, 305 F.3d 120, 126 (Puerto Rican law firm's rental of apartment in New
York City for use of partners who visited New York for mixed vacation and business purposes qualified
as persistent course of conduct in New York).
Finally, New York may assert long-arm jurisdiction over an out-of-state tortfeasor who causes local injury if he “derives substantial revenue from goods used or consumed or services rendered, in the state.”
Here again, the tortious injury need not arise out of the additional in-state activity. The “substantial revenue” component can be satisfied on the basis of a sizable percentage of New York revenue in comparison to the defendant's overall revenue, or alternatively, a large dollar amount of revenue generated in
New York. See, e.g., Tonns v. Spiegel's, 1982, 90 A.D.2d 548, 455 N.Y.S.2d 125 (2d Dep't) (4-7% sales
in New York, generating between $40,000-$113,000); Allen v. Canadian General Electric Co., 1978,
65 A.D.2d 39, 410 N.Y.S.2d 707 (3d Dep't), affirmed , 1980, 50 N.Y.2d 935, 431 N.Y.S.2d 526, 409
N.E.2d 998 (1% sales in New York, generating nine million dollars).
If the ongoing contacts specified in subset (i) of CPLR 302(a)(3) are lacking, it may be possible to establish jurisdiction under subset (ii). This alternative requires, in addition to tortious injury within New
York, a reasonable expectation by the defendant that his tortious act could have consequences in New
York and the defendant is earning substantial revenue from interstate or international commerce. On its
face, the only New York contact required by subset (ii), aside from the fact of tortious injury in New
York, is the foreseeability of forum consequences. This is too low a threshold for long-arm jurisdiction,
the Judicial Conference reasoned, and so the additional requirement of interstate or international commerce was added. Thus, the assertion of jurisdiction would be fair, according to the Judicial Conference, because a defendant “engaged in extensive business activities on an interstate or international
level” is “generally equipped to handle litigation away from his business location.” N.Y.Jud.Conf.,
Twelfth Ann.Rep. 339, 342 (1967) [hereinafter cited as Jud.Conf.Rep.]. As will be seen below,
however, even this statutory fairness factor--interstate commerce in general--may not be enough to satisfy due process. The Constitution requires purposeful activity directed by the defendant toward the forum. See Commentary C302:2, above. As a matter of due process, therefore, the defendant's interstate or
international commerce may require some activity consciously and specifically directed toward New
York.
Jurisdiction under CPLR 302(a)(3)(ii) is frequently invoked in products liability cases, but it can also
have utility in other types of tort actions (other than defamation). See, e.g., Sybron Corp. v. Wetzel,
1978, 46 N.Y.2d 197, 413 N.Y.S.2d 127, 385 N.E.2d 1055 (theft of trade secrets); Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, C.A.N.Y.1999, 171 F.3d 779 (fraud and breach of fiduciary
Page 51
duty).
The Court of Appeals provided a blueprint for the application of CPLR 302(a)(3)(ii) in LaMarca v.
Pak-Mor Mfg. Co., 2000, 95 N.Y.2d 210, 713 N.Y.S.2d 304, 735 N.E.2d 883, a products liability action
against an out-of-state manufacturer. The Court began with the observation that assertions of long-arm
jurisdiction entail a two-part inquiry: Do the facts of plaintiff's case fall within the coverage of the statute? Assuming an affirmative answer to the first question, does the particular assertion of jurisdiction
comport with due process?
With respect to part one, the Court identified five elements of CPLR 302(a)(3)(ii) and found all of them
to have been satisfied. The defendant was a Texas corporation with a facility in Virginia for the manufacture of garbage hauling equipment. At issue was one of its loading devices for sanitation trucks. The
plaintiff, an employee of the Town of Niagara, New York, was injured when he fell from the loading
device, allegedly as a result of a defect in the product. Thus, the first three requirements of CPLR
302(a)(3)(ii) were satisfied: defendant allegedly committed a tortious act outside the state, the plaintiff's
cause of action arose from the act, and the act caused injury within New York.
The fourth element of CPLR 302(a)(3)(ii) is a requirement that the defendant expect or reasonably expect its act to have consequences in New York. The expected consequences in New York must be
“direct,” but the defendant “need not foresee the specific event that produced the alleged injury.” It is
enough that the defendant “reasonably foresee that any defect in its product would have direct consequences within the State.” 95 N.Y.2d at 215, 713 N.Y.S.2d at 307, 735 N.E.2d at 886. Here, the loading device was picked up in Virginia by defendant's New York distributor for resale to the Town of
Niagara, a destination that was indicated on the invoice. The invoice also made reference to a “New
York light bar,” reinforcing the conclusion that the defendant could reasonably expect direct consequences in New York if the loading device were defective.
The fifth element of the statute requires a showing that the defendant derives substantial revenue from
interstate or international commerce. This requirement assures that jurisdiction will not be asserted over
tortfeasors whose out-of-state business activities are of a “local character.” 95 N.Y.2d at 215, 713
N.Y.S.2d at 308, 735 N.E.2d at 887. The interstate commerce/substantial revenue component was satisfied here because the defendant, a Texas corporation, maintained facilities in Virginia, advertised in a
national trade magazine, made sales of its products for distribution throughout the United States, and
had a distributor and district representative for New York. Its annual revenue in the year of the accident
was over 18 million dollars, roughly $500,000 of which was derived from New York.
Since CPLR 302(a)(3)(ii) was satisfied in all respects, the next inquiry was whether the assertion of jurisdiction complied with due process. This, in turn, required another two-part analysis: (1) minimum
contacts must exist between the forum and the defendant, and (2) there must be a showing that the assertion of jurisdiction does not offend traditional notions of fair play and substantial justice. In addressing the first part of the inquiry, the Court relied principally upon the Supreme Court's decision in
World-Wide Volkswagen Corp. v. Woodson, 1980, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490, which
held that minimum contacts involves more than the mere foreseeability of forum consequences. The defendant must “purposefully avail” itself of the privilege of conducting activities in the forum state,
thereby making it reasonable to anticipate suit in such forum. See Commentary C302:2, above. These
requirements were satisfied here because the defendant was affirmatively seeking to serve the New
Page 52
York market with its products. Although defendant's immediate customers paid for, received title and
took delivery in Virginia, its loading device did not end up in New York solely as a result of the efforts
or decisions of other persons. The defendant's self-initiated actions were intended to produce sales in
New York.
To determine whether the fair-play-and-substantial-justice component of due process was met, the
Court of Appeals drew upon Burger King Corp. v. Rudzewicz, 1985, 471 U.S. 462, 105 S.Ct. 2174, 85
L.Ed.2d 528, and Asahi Metal Industry Co. v. Superior Court of California, 1987, 480 U.S. 102, 107
S.Ct. 1026, 94 L.Ed.2d 92. The Court concluded that the “essence” of this part of the test is whether the
particular assertion of jurisdiction is reasonable. Asahi identified several factors to be considered: the
burden on the defendant, the interests of the forum state, plaintiff's interest in obtaining relief, the interests of the interstate judicial system in efficient dispute resolution, and the shared interests of the
states in furthering social policy. Here, there was little burden on the defendant, an American company
with multi-state operations. New York had an interest in providing a forum for one of its residents who
was injured while within the state and who would be entitled to rely upon the application of New York
law. New York would also provide a forum in which all relevant defendants could be sued, thereby producing maximum efficiency in the interstate judicial system.
Interestingly, the Court did not discuss whether jurisdiction might also have been premised on subset (i)
of CPLR 302(a)(3). For example, the case might be made that the defendant regularly derived substantial revenue from goods used or consumed in New York. The Court, however, saw no need to pursue
that inquiry because jurisdiction was sustained under subset (ii).
The LaMarca case touches upon all issues that may need to be addressed in applying CPLR
302(a)(3)(ii). The first condition imposed by subset (ii)--reasonable expectation of forum consequences-“is intended to ensure some link between a defendant and New York State to make it reasonable to require a defendant to come to New York to answer for tortious conduct committed elsewhere.” Ingraham
v. Carroll, 1997, 90 N.Y.2d 592, 598, 665 N.Y.S.2d 10, 12, 687 N.E.2d 1293, 1295. Thus, the issue of
statutory analysis is whether the defendant reasonably could foresee injury in New York. The due process requirement of foreseeability goes one step further. The defendant must reasonably anticipate defending an action in New York as a result of purposeful conduct directed toward the state--the
“purposeful availment” requirement. World-Wide Volkswagen Corp. v. Woodson, supra, 44 U.S. at 297,
100 S.Ct. at 567, 62 L.Ed.2d at 501. Ultimately, then, the foreseeability of forum consequences must be
accompanied by evidence of purposeful activity directed toward New York.
Most lower court decisions applying the foreseeability prong of CPLR 302(a)(3)(ii) appear to have been
faithful both to the requirements of the statute as well as due process. In the following cases, jurisdiction was upheld in actions based on tortious injuries in New York where the defendant could reasonably
expect in-state consequences: Darienzo v. Wise Shoe Stores, Inc., 1980, 74 A.D.2d 342, 427 N.Y.S.2d
831 (2d Dep't) (manufacturer knew that 5% of its shoes were being sold in New York and a closelyaffiliated company actively solicited business in New York); Prentice v. Demag Material Handling,
Ltd., 1981, 80 A.D.2d 741, 437 N.Y.S.2d 173 (4th Dep't) (manufacturer delivered injury-producing
product directly to New York purchaser); Crair v. Saxena, 2000, 277 A.D.2d 275, 715 N.Y.S.2d 739
(2d Dep't) (health facility engaged in nationwide program for distribution of serum in which distribution to New York patients was contemplated).
Page 53
Martinez v. American Standard, 1982, 91 A.D.2d 652, 457 N.Y.S.2d 97 (2d Dep't), affirmed , 1983, 60
N.Y.2d 873, 470 N.Y.S.2d 367, 458 N.E.2d 826, is an example of a case in which neither the statutory
requirement of foreseeability nor the due process requirement of purposeful availment was satisfied. A
guest in a New York hotel was injured when an air-conditioning unit malfunctioned. The unit contained
a compressor, an allegedly defective component, which was manufactured by Tecumseh somewhere in
the midwest. Tecumseh, a main defendant in the action, impleaded Vitreous, a Rhode Island company
that manufactured the “terminal pins” that were installed in Tecumseh compressors. The court held that
jurisdiction did not lie over Vitreous. This party merely shipped its terminal pins to the midwest pursuant to orders placed by Tecumseh; it made no shipments to New York. The record contained no evidence that Vitreous either knew or should have known that Tecumseh's compressors were destined for
New York. Thus, there was no foreseeability of New York consequences from Vitreous' allegedly tortious act. The court also indicated that due process would be offended by sustaining jurisdiction over
Vitreous, observing that the “purposeful affiliation” requirement was not met: there was no evidence
that Vitreous was seeking to reach the New York market through Tecumseh.
Carpino v. National Store Fixtures, Inc., 2000, 275 A.D.2d 580, 712 N.Y.S.2d 684 (3d Dep't), appeal
denied 95 N.Y.2d 769, 722 N.Y.S.2d 472, 745 N.E.2d 392, is an interesting case in which statutory
foreseeability existed, but due process precluded the exercise of jurisdiction. Plaintiff was injured at a
New York worksite when a wood scaffold collapsed. The wood apparently had been purchased in New
York but was originally produced at the Ohio plant of a Delaware corporation, Conner, which carried
on no activities in New York. The wood in question was part of a sale by Conner, in Ohio, to a national
lumber/hardware company. Conner knew that the wood was destined for New York because of the shipping directions that it was given. Even if Conner could be deemed to foresee consequences in New
York, however, the court ruled that Conner was beyond the court's jurisdiction. Conner had not pursued
“any purposeful affiliation with New York and its connection with New York in this matter arose from
[the lumber company's] decision to transport Conner's product to one of its stores in New York.” Id. at
582, 712 N.Y.S.2d at 686. Conner had made similar sales to companies that transported lumber to New
York only four times during a three-year period, which amounted to only 0.5% of Conner's sales of
lumber during that time frame.
The foreseeability issue is at the forefront of cases in which overseas manufacturers enter into exclusive
sales agreements with American distributors. When one of the products finds its way into New York
and causes injury here, will jurisdiction lie over the foreign manufacturer? The Second Circuit Court of
Appeals said “yes” in Kernan v. Kurz-Hastings, Inc., C.A.N.Y.1999, 175 F.3d 236. The plaintiff in
Kernan was injured in New York by a machine that was sold to her employer by a Pennsylvania company. She sued the seller, which successfully impleaded the Japanese manufacturer for contribution.
The injury-producing machine came to New York under the following circumstances: The manufacturer
had entered into an agreement with the Pennsylvania company under which the latter had the exclusive
right to sell the manufacturer's product in the United States. The agreement also provided for the exchange of information relating to product development and pricing. One of the manufacturer's officers
admitted that his company had “general knowledge” that distribution of its machines was being made
by the Pennsylvania company throughout the United States. Thus, there was a reasonable expectation of
consequences in New York in satisfaction of CPLR 302(a)(3)(ii). Due process was also satisfied: the
exclusive sales agreement represented a sufficiently purposeful, albeit indirect, effort to serve the New
York market. State-court decisions involving sales arrangements between foreign manufacturers and
Page 54
domestic distributors are in accord with the holding in Kernan. See, e.g., Perkow v. Frank W. Winne &
Sons, Inc., 2007, 36 A.D.3d 1189, 828 N.Y.S.2d 687 (3d Dep't); Adams v. Bodum, Inc., 1994, 208
A.D.2d 450, 617 N.Y.S.2d 316 (1st Dep't). But see Schaadt v. T.W. Kutter, Inc., 1991, 169 A.D.2d 969,
564 N.Y.S.2d 865 (3d Dep't) (no jurisdiction in absence of exclusive distribution agreement; discernible
effort to serve New York market was lacking).
In the unique factual setting of DES litigation, two courts took CPLR 302(a)(3)(ii) to its outer limits
and arguably went beyond the pale. In re New York County DES Litigation (Carrano v. Abbott Laboratories), 1994, 202 A.D.2d 6, 615 N.Y.S.2d 882 (1st Dep't), allowed DES victims who were injured in
New York to sue a California manufacturer of DES whose product was marketed only in states west of
the Mississippi. By joining other manufacturers in the national marketing of DES, however, the defendant was said to have “affirmatively interposed itself into the New York market and ‘should [have] reasonably expect[ed] the act to have consequences in the state’ of New York.” Id. at 10, 615 N.Y.S.2d at
885. Referring to the Court of Appeals decision in Hymowitz v. Lilly & Co., 1989, 73 N.Y.2d 487, 541
N.Y.S.2d 941, 539 N.E.2d 1069, certiorari denied 493 U.S. 944, 110 S.Ct. 350, 107 L.Ed.2d 338, the
Appellate Division stated as follows: “Since the traditional substantive rules were relaxed to allow recovery against a defendant with a national market share of the DES distribution even though there was
no proof that the defendant ever sold DES in New York, it would be anomalous to preclude recovery
against such defendant on procedural grounds.” 202 A.D.2d at 10, 615 N.Y.S.2d at 885. The uniqueness
of the litigation, said the court, required a liberal interpretation of both CPLR 302(a)(3)(ii) and a
“realistic” application of the minimum contacts standard of due process. 202 A.D.2d at 8, 615 N.Y.S.2d
at 884. The First Department relied heavily upon the scholarly opinion of Judge Weinstein in In re DES
Cases (Ashley v. Abbott Laboratories), E.D.N.Y.1992, 789 F.Supp.552, where the same result was
reached.
The “market share” liability theory was developed in Hymowitz to mitigate the proximate cause problem raised by plaintiffs' inability to identify the makers of the particular pills they ingested. It was held
that a manufacturer of DES who participated in the national market could be held liable without regard
to its responsibility to a particular plaintiff, but liability could be imposed only in proportion to the
manufacturer's particular percentage share of the national market. But is the uniqueness of this modification of the substantive law enough to justify the apparent departure from the constitutional requirement
for jurisdiction that a defendant purposefully avail itself of the privilege of conducting activities within
the forum state? Where is the reasonable expectation of defending an action in New York if the defendant limits the distribution of its product to an entirely different region of the nation? The Court of Appeals itself, when it created market-share liability in Hymowitz, explicitly acknowledged that, in light of
jurisdictional limitations, its approach to liability would “as a practical matter ... prevent some plaintiffs
from recovering 100% of their damages.” 73 N.Y.2d at 513, 541 N.Y.S.2d at 950, 539 N.E.2d at 1078.
The interstate/international commerce component of CPLR 302(a)(3)(ii) was examined by the Court of
Appeals in Ingraham v. Carroll, 1997, 90 N.Y.2d 592, 665 N.Y.S.2d 10, 687 N.E.2d 1293. Citing the
Judicial Conference Report upon which the adoption of CPLR 302(a)(3)(ii) was based, the Court
stressed that subset (ii) of the statute was intended to cover only defendants with “extensive business
activities on an interstate or international level.” 90 N.Y.2d at 599, 665 N.Y.S.2d at 13, 687 N.E.2d at
1296, quoting Jud.Conf.Rep., supra, at 342. Subset (ii) does not encompass out-of-state tortfeasors
“whose business operations are of a local character.” 90 N.Y.2d at 599, 665 N.Y.S.2d at 13, 687 N.E.2d
at 1296, quoting Jud.Conf.Rep. at 343 (emphasis added).
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Thus, in Ingraham, the statute could not be used to obtain long-arm jurisdiction over a Vermont physician whose negligent treatment of a patient in Vermont resulted in the patient's death in New York. Notably, the defendant's treatment of the patient, like that of other New Yorkers who visited him in Vermont, was the result of informal and ad hoc referrals from an HMO in New York with which he had no
contractual arrangement. The Court held that this was not interstate commerce within the meaning of
subset (ii) because “a physician treating patients in his or her home State is providing a service that is
inherently personal, and local, in nature.” 90 N.Y.2d at 599-600, 665 N.Y.S.2d at 13, 687 N.E.2d at
1296. The “diversity of the physician's pool of patients”--whether the patients cross state lines to see
him as a result of vacations, the physician's proximity to the border, or referrals based on the renown of
the physician as a specialist--“cannot convert an otherwise local practice to an interstate business activity.” Id. at 599, 665 N.Y.S.2d at 13, 687 N.E.2d at 1296. Furthermore, neither the defendant's frequent
but passive receipt of unsolicited referrals from the New York HMO nor his “unexercised privilege to
practice medicine in New York” based on his New York license made him a participant in interstate
commerce. See also Bensusan Restaurant Corp. v. King, C.A.N.Y.1997, 126 F.3d 25, 29 (Missouri operator of web site that advertised Missouri night club with a view toward attracting local patrons was
not engaged in interstate commerce for purposes of CPLR 302(a)(3)(ii)).
The Ingraham Court left open the possibility of a different result on facts such as those in McLenithan
v. Bennington Community Health Plan, 1996, 223 A.D.2d 777, 635 N.Y.S.2d 812 (3d Dep't), appeal
denied 88 N.Y.2d 1017, 649 N.Y.S.2d 383, 672 N.E.2d 609, where a Vermont doctor was subject to jurisdiction under CPLR 302(a)(1) (transaction of business in New York) because he treated New York
patients pursuant to a contract with a New York HMO. Such contract might serve to bring the physician's activity within the interstate commerce prong of § 302(a)(3)(ii). Even in the absence of a contract, an out-of-state doctor's (or hospital's) active solicitation of New York patients might bring the defendant within subset (i) of the statute.
Lower courts have passed upon other aspects of the interstate commerce prong of subset (ii). For example, determining whether the revenue from interstate or international commerce is “substantial”, as
in the case of subset (i), can be based on either a comparison of percentages or on raw dollar amounts.
Allen v. Canadian General Electric Co., 1978, 65 A.D.2d 39, 410 N.Y.S.2d 707 (3d Dep't), affirmed ,
1980, 50 N.Y.2d 935, 431 N.Y.S.2d 526, 409 N.E.2d 998. Another case holds that a manufacturer cannot insulate itself from being engaged in “interstate commerce” by selling all of its goods intrastate to a
closely-affiliated company that thereafter, with the manufacturer's knowledge and participation, distributes the goods nationally. Darienzo v. Wise Shoe Stores, 1980, 74 A.D.2d 342, 427 N.Y.S.2d 831 (2d
Dep't). Finally, a federal district court held that when a corporation and one of its officers are both sued
for a tortious act under CPLR 302(a)(3)(ii), the company's interstate revenue cannot be imputed to the
individual for jurisdictional purposes if he or she is not a major shareholder. For jurisdictional purposes,
each defendant's derivation of revenue from interstate commerce must be assessed separately. Siegel v.
Holson Co., S.D.N.Y.1991, 768 F.Supp. 444.
Subdivision (a)(4): Ownership, Use or Possession of Real Property.
C302:14. Real Property Actions, In General.
CPLR 302(a)(4) provides a basis for long-arm jurisdiction for a cause of action arising from the defend-
Page 56
ant's ownership, use or possession of real property in New York. There can be little doubt about the
constitutionality of such jurisdiction in most cases. The defendant benefits directly from the local laws
that protect his or her interest in the property, and the fact that it is realty creates a fixed and ongoing
relationship with the state.
Long-arm jurisdiction under CPLR 302(a)(4) is much broader than conventional in rem jurisdiction. See
generally Practice Commentaries on CPLR 314, at C314:3, infra. CPLR 302(a)(4) empowers the court
to award money damages, and the defendant need not own, use or possess the real property at the time
the action is commenced. See, e.g., Tebedo v. Nye, 1965, 45 Misc.2d 222, 256 N.Y.S.2d 235
(Sup.Ct.Onondaga Co.). The defendant's prior relationship to the property will suffice, assuming the
claim arose out of that relationship.
There is very little caselaw on CPLR 302(a)(4), probably because its coverage is obvious in most instances involving New York realty. The statute should support personal injury claims for injuries
suffered on the property, damage claims (or specific performance) for failure to honor a contract to convey the property, and monetary claims for nonpayment against those who have leased the property. Will
§ 302(a)(4) support in personam jurisdiction in an action against a purchaser of New York realty if the
nondomiciliary defendant never came to New York in connection with the transaction? Has such a purchaser “used” real property within the meaning of the statute? Other states have permitted the assertion
of long-arm jurisdiction in such cases, but the issue remains unresolved in New York. In Black River
Associates v. Newman, 1996, 218 A.D.2d 273, 637 N.Y.S.2d 880 (4th Dep't), however, CPLR
302(a)(1)--transaction of business in New York--was held to reach this situation.
The plaintiff in Black River, through a Florida broker, solicited the defendant in California to buy the
New York realty at issue. The defendant agreed to the purchase, and the final negotiations and execution of the contract were carried out by mail, telephone and fax between Florida, California and New
Jersey. The written agreement specified that the buyer “designates and appoints” the New York Secretary of State as “Resident Agent for the purpose of accepting service” and contained a New York choiceof-law clause. When the defendant failed to tender the purchase price by the closing date, the plaintiff
sued in New York for specific performance.
Despite the absence of any physical contact between the defendant and New York during the course of
the transaction, the court held that the transaction occurred in New York based “on the terms and effects
of defendant's unperformed promise to purchase real property in New York.” Id. at 279, 637 N.Y.S.2d
at 884. The subject matter of the contract--New York realty--had a substantial connection with New
York, and the contract contemplated in-state closing activity, possession of the property and a continued
relationship with New York. “New York was thus the ‘place of performance’ for defendant's ‘ultimate
contractual obligations.’ ” Id. at 280, 637 N.Y.S.2d at 885. Although the contract was negotiated and
executed entirely outside New York, “every incident of the contract was ‘New York-connected.’ ” Id. at
281, 637 N.Y.S.2d at 885. The court also took note of New York's substantive and procedural interest in
providing a forum for its residents to enforce contracts involving New York real estate.
In a footnote, the court acknowledged that the contractual designation of the Secretary of State as agent
for service of process might have provided a “consent” basis for the exercise of personal jurisdiction
but plaintiff had not argued such consent. This provision of the contract was significant, nonetheless,
because together with the New York choice-of-law clause, it contributed to the defendant's foreseeabil-
Page 57
ity of litigation in New York.
The court's reasoning seems sound. The court marshaled the cases from other jurisdictions which, pursuant to statutory provisions that are similar to either CPLR 302(a)(1) or (a)(4), have “uniformly” upheld jurisdiction “based on defendant's acquisition of a vendee's interest in real property in the forum.”
218 A.D.2d at 276 n.1, 637 N.Y.S.2d at 882. It would be anomalous for New York not to do so. In the
context of a presumptively rational interstate system of justice, it makes little sense to require the
plaintiff to travel to California to enforce an action against a Californian to purchase real property in
New York. Although the court gave weight to the contractual provision by which the defendant appointed an agent in New York for service of process, it is submitted that this was by no means essential to
the outcome. Any defendant who reaches out across state lines to purchase real property in New York
should reasonably expect a reciprocal reaching out by the New York courts for the purpose of litigating
matters directly related to the purchase.
Subdivision (b): Matrimonial Actions and Family Court Proceedings.
C302:15. Matrimonial Long-Arm Jurisdiction, In General.
In connection with matrimonial actions (see CPLR 105(p)) and certain Family Court proceedings, longarm jurisdiction is available under CPLR 302(b) to empower the court to award monetary relief to the
plaintiff. (The underlying claim with respect to the status of the marriage can be premised on in rem jurisdiction, as discussed in the Practice Commentaries on CPLR 314, at C314:2, infra.)
Under CPLR 302(b), the plaintiff must be a resident or domiciliary of New York. This ensures that New
York has a sufficient interest in the plaintiff's quest for support money. In addition, the terms of the
statute require a prior New York domicile or residence by the defendant as a condition precedent to the
applicability of the statute.Shirley D. v. Carl D., 1996, 224 A.D.2d 60, 648 N.Y.S.2d 650 (2d Dep't)
(fact that New Jersey respondent impregnated petitioner in New York during period in which he attended college in state was insufficient to confer jurisdiction under CPLR 302(b) because no showing was
made that respondent had ever resided in New York).
Assuming the foregoing threshold is satisfied, any one of four alternative contacts between the defendant and the state of New York will sustain an assertion of long-arm jurisdiction: (1) the parties were
domiciled in New York before their separation; (2) the defendant abandoned the plaintiff in New York;
(3) the claim for monetary relief accrued under the laws of New York; or (4) the claim accrued under an
agreement executed in New York. As in the case of long-arm jurisdiction generally, a particular assertion of jurisdiction under the statute must not exceed the bounds of due process. See generally Commentary C302:2, above.
The first potential ground for matrimonial long-arm jurisdiction--New York “was the matrimonial domicile of the parties before their separation”--is ambiguous. Will a New York matrimonial domicile that
was relinquished several years before the separation suffice to confer jurisdiction? The First and Second
Departments have held that the spouses must have been domiciled in New York at the time of their separation or “within the recent past.” Klette v. Klette, 1990, 167 A.D.2d 197, 561 N.Y.S.2d 580 (1st Dep't)
; Lieb v. Lieb, 1976, 53 A.D.2d 67, 385 N.Y.S.2d 569 (2d Dep't). A similar focus on a “relatively recent” domicile in New York was suggested by the Fourth Department in Paparella v. Paparella, 1980,
Page 58
74 A.D.2d 106, 426 N.Y.S.2d 610 (4th Dep't).
The Third Department, however, has held that the “recent past” criterion is “unnecessarily restrictive”:
Since “the legislature declined to fix a specific time limit ... it would be inappropriate for the judiciary
to fix such a limit.” Levy v. Levy, 1993, 185 A.D.2d 15, 18, 592 N.Y.S.2d 480, 481 (3d Dep't). The
court's language is perhaps unduly broad, because the reported facts--albeit somewhat vague as to the
relevant dates--suggest that the outcome of the case would have been the same had the court used the
“recent past” test. New York had been the matrimonial domicile on and off for a period of six years
when the couple in Levy moved to California in 1981. They separated in California approximately one
year later, at which time the wife moved back to New York. During the next eight years, the husband
visited the family in New York and he, too, lived in New York (although not with his wife) from 1987
to 1988. The wife's action was commenced in 1990 or 1991. Thus, even though the New York action
was commenced approximately ten years after the New York matrimonial domicile had ended, their
separation occurred only a year or so after they had departed from New York.
On such facts, it is difficult to find fault with the court's upholding of jurisdiction. New York's connection to the defendant and the particular marital relationship both before and after the separation was significant. Without a “recent past” limitation on the application of the statute, however, undesirable results might be reached in other cases. As the time span between the parties' New York domicile and their
separation widens, there will be a corresponding diminution in the defendant's reasonable expectation
that he or she will be haled into a New York court to litigate the financial consequences of that separation. See Kulko v. Superior Court of California in and for the City and County of San Francisco, 1978,
436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132. Imposition of a “recent past” gloss on the
“before-their-separation” language helps ensure that the reach of this provision of the long-arm statute
will not offend due process.
Shirley D. v. Carl D., 1996, 224 A.D.2d 60, 648 N.Y.S.2d 650 (2d Dep't), makes an important point
about long-arm jurisdiction in paternity actions. The court held that a 1982 amendment to the statute
brings paternity actions within its scope when the nondomiciliary respondent's act of intercourse in New
York is allegedly responsible for conception of the child in New York. The pre-amendment language of
the statute conferred jurisdiction only when the “obligation” to support accrued in New York, which
was interpreted as requiring an adjudication of paternity prior to any action for support. By changing
“obligation” to “claim for support ... accru[ing] under the laws of this state,” the Legislature intended to
allow for the paternity action itself to be predicated on intercourse in New York.
The final sentence of CPLR 302(b) directs the practitioner to the Family Court Act § 154 with respect
to assertions of jurisdiction over respondents in certain Family Court proceedings. Cross-reference is
also made to Article 5-B of the Family Court Act (Uniform Interstate Family Support Act), which
provides several grounds for obtaining personal jurisdiction in paternity matters. See Fam.Ct.Act §
580-201. Section 1036 of the Family Court Act, which is also mentioned in CPLR 302(b), authorizes
jurisdiction in abuse and neglect cases that have New York contacts. Article 5-A of the Domestic Relations Law is the Uniform Child Custody Jurisdiction and Enforcement Act. See Dom.Rel.Law § 75 et
seq.
Subdivision (c): Restricted Appearance.
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C302:16. Restricted Appearance.
Subdivision (c) of CPLR 302 provides protection for the defendant over whom long-arm jurisdiction is
the sole basis of the court's power. The defendant who appears to defend a case predicated on long-arm
jurisdiction does not thereby subject himself to the court's general jurisdiction. Any additional claims
that plaintiff seeks to add to the complaint by way of amendment after the defendant appears must be
supported by some basis of jurisdiction other than the defendant's appearance. The plaintiff would need
to show that the newly-added claim is also one that arises out of a long-arm category, or perhaps the defendant has begun to do business in the state, thereby rendering CPLR 301 applicable.
Subdivision (d): “Libel Terrorism Protection Act.”
The imposing title of this Commentary is the name the Legislature assigned to Chapter 66 of the laws of
2008, which contains the amendment adding subdivision (d) to CPLR 302. The new subdivision is intended to overrule Ehrenfeld v. Bin Mahfouz, 2007, 9 N.Y.3d 501, 851 N.Y.S.2d 381, 881 N.E.2d 830,
in which the Court of Appeals held that the scope of CPLR 302(a)(1) did not extend to the phenomenon
of so-called “libel tourism,” or what the New York Legislature has characterized “libel terrorism”
(described below). The Court adhered to its traditional, relatively restrained interpretation of CPLR
302(a)(1). See Commentary C302:6, supra. In the factual settings encompassed by subdivision (d) of §
302, however, New York courts are now free from the restrictions imposed by the categories of longarm jurisdiction specified in subdivision (a) and may exercise jurisdiction to the full extent permitted by
constitutional due process. (The general constitutional standards are summarized in Commentaries
C302:1 and C302:2, above.)
A review of the facts in Ehrenfeld is essential to an understanding of the goal sought to be accomplished by subdivision (d). In a book entitled Funding Evil: How Terrorism is Financed-and How to
Stop It, author Rachel Ehrenfeld accused Bin Mahfouz, a Saudi businessman, of funding Al Quaeda and
other Islamist terror groups. Bin Mahfouz commenced a libel action against Ehrenfeld in England,
where 23 copies of the book had been purchased through the internet and one of the book chapters was
available on an accessible U.S.-based website. Process was served on Ehrenfeld in New York and several communications were sent to her in New York concerning the case. Ehrenfeld, convinced that her
accusations were accurate, defaulted in order to avoid Mahfouz's “libel terrorism,” i.e., suing an author
in a claimant-friendly foreign jurisdiction with which the author has only a negligible connection
primarily for the purpose of chilling the author's freedom of speech in the United States. Mahfouz obtained an English default judgment awarding damages and injunctive relief. Ehrenfeld was advised that
the judgment, in addition to awarding compensatory damages and Mahfouz's court costs, obligated her
to publish an apology and to refrain from any further distribution of the book in England. Mahfouz's
foreign-based website, accessible in New York, reported the results of his judgment. Apparently no immediate attempt to enforce the damage award against Ehrenfeld's New York assets was contemplated.
Ehrenfeld thereupon commenced an action in federal district court in New York for a declaratory judgment that Mahfouz's claim was without merit under U.S. libel law in general and New York law in particular and that the English judgment was unenforceable here. The Court of Appeals, upon certification
from the Second Circuit, held that jurisdiction pursuant to CPLR 302(a)(1) was lacking over Mahfouz
Page 60
because his New York contacts failed to rise to the level of purposeful availment of the privileges and
benefits of New York's laws. The court rejected the argument that the scope of § 302(a)(1) should be
expanded to encompass jurisdiction over defendants whose out-of-state activity was calculated to have
“effects” in New York--here, the “chilling effect” that the New York author experienced with respect to
her exercise of free speech. Significantly, the Court stressed that its decision was based solely on an interpretation of the New York long-arm statute, not on principles of due process. The Court took note,
for example, of the en banc decision of the Ninth Circuit Court of Appeals in Yahoo! Inc. v. La Ligue
Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, which upheld jurisdiction in California over
French libel claimants under similar circumstances. California, however, has an open-ended long-arm
statute permitting the assertion of jurisdiction “on any basis not inconsistent with the Constitution”
(Ca.Code Civ.Pro. § 410.10).
The Legislature quickly responded to the Ehrenfeld decision with the adoption of CPLR 302(d), which
vastly expands New York jurisdiction in “libel terrorism” cases. Henceforth, the statutory jurisdictional
standard to be applied in declaratory-judgment actions challenging the legitimacy of foreign (non-U.S.)
libel judgments is coextensive with constitutional due process subject only to three qualifications: (1)
the person against whom the foreign judgment has been entered (ordinarily this will be the plaintiff in
the New York action) must be either a New York resident or a person amenable to jurisdiction in New
York who has assets here or “may have to take actions in New York to comply with the judgment”; (2)
the allegedly defamatory statements must have been published in New York; and (3) the person against
whom the foreign judgment was entered either (i) has assets in New York, or (ii) “may have to take actions in New York to comply with the foreign defamation judgment.” The qualifications imposed by the
Legislature circumscribe the situations in which subdivision (d) can be invoked and provide a type of
threshold for the due process analysis that is to be utilized in determining the court's jurisdiction. It
seems clear from the text of subdivision (d) that the Legislature views with favor the “effects test” used
by the Ninth Circuit in the Yahoo! case.
The Libel Terrorism Protection Act also has a substantive component. The legislation amends CPLR
5304 by adding a new subdivision (8), explicitly allowing New York courts to deny the enforcement of
a foreign defamation judgment if the defamation law applied by the foreign court in the particular case
failed to provide “at least as much protection for freedom of speech and press ... as would be provided
by both the United States and New York constitutions.” Furthermore, the Legislature explicitly conferred retroactive effect on CPLR 302(d) so as to encompass cases arising before its April 28, 2008, effective date. See generally Commentary C302:3, above, regarding retroactivity issues.
CROSS REFERENCES
Actions by or against personal representatives, see EPTL 11-3.1 et seq.
Actions or special proceedings against foreign corporations, see Business Corporation Law § 1314.
Appearance, jurisdiction conferred by, see CPLR 320.
Deprivation of property without due process of law, see McKinney's Const. Art. 1, § 6.
Income deduction order for support enforcement, see CPLR 5242.
Non-resident motor vehicle operator, see Vehicle and Traffic Law § 253.
Personal jurisdiction by acts of nonresidents-City courts, see UCCA § 404.
District court, see UDCA § 404.
Page 61
New York City civil court, see NY City Civ. Ct. Act § 404.
Residence or business within municipality as jurisdictional predicate-City courts, see UCCA § 213.
Justice court, see UJCA § 213.
Service of process on unauthorized foreign corporation doing business in state, see Business Corporation
Law § 307.
Service without state, see CPLR 313.
Support proceedings in Family Court, see Family Court Act § 411 et seq.
Uniform child custody jurisdiction act, see Domestic Relations Law § 75-a et seq.
LAW REVIEW AND JOURNAL COMMENTARIES
Adapting due process to match your tort: In re DES: A novel approach to jurisdiction. 67 St.John's L.Rev.
655 (1993).
Analysis of “mere presence” and other traditional bases of jurisdiction. 45 Brook.L.Rev. 607 (1979).
Appearance and jurisdictional motions. A. Homburger and J. Laufer, 14 Buff.L.Rev. 374 (1965).
Bauxites' “individual liberty interest” and the right to control amenability to suit in personal jurisdiction
analysis. 51 Fordham L.Rev. 1278 (1983).
Bensusan Restaurant Corp. v. King: an erroneous application of personal jurisdiction law to internetbased contacts. Leonard Klingbaum, 19 Pace L.Rev. 195 (1998).
Biannual survey of N.Y. practice. 38 St.John's L.Rev. 407, 412, 414 (1964).
Biannual survey of N.Y. practice. D. D. Siegel. 39 St.John's L.Rev. 178 (1964).
Business associations. Sandra S. O'Loughlin & Christopher J. Bonner, 58 Syracuse L. Rev. 683 (2008).
Bohn v. Bartels 2007 U.S. District Lexis 91182 (S.D.N.Y. Dec. 11, 2007). Carrie V. Hardman; 21 N.Y.
Int'l L. Rev 121 (Summer, 2008)
British long-arm statute given effect. 41 St.John's L.Rev. 290 (1966).
Can the United States talk the talk & walk the walk when it comes to libel tourism: How the freedom to
sue abroad can kill the freedom of speech at home. Tara Sturtevant, 22 Pace Int’l L. Rev. 269 (2010).
Choice of procedures for foreign judgments? Robert A. Barker, 212 N.Y.L.J. 3 (Dec. 19, 1994).
Civil practice. Paul H. Aloe, 58 Syracuse L. Rev. 713 (2008).
Conflict of laws. George B. Reese, 46 Syracuse L.Rev. 385 (1995).
Conflict of laws, constitutional law, jurisdiction over nonresidents. 13 Cornell L.Q. 606 (1928).
Conflict of laws Patricia. Youngblood Reyhan, 59 Syracuse L. Rev. 621 (2009).
Page 62
Constitutional law, conflict of laws, service of process on nonresident automobilists. 15 Cornell L.Q. 259
(1930).
Contracting by mail or independent broker's acts and the long-arm statute. 41 St.John's L.Rev. 293 (1966).
Court addresses malicious prosecution, long-arm jurisdiction. Roy L. Reardon and Mary Elizabeth McGarry, 224 N.Y.L.J. 3 (Aug. 10, 2000).
Court doesn't know its ASAHI from its WORTMAN: A critical view of the constitutional constraints on
jurisdiction and choice of law. Posnak, 41 Syracuse L.Rev. 875 (1990).
Court ordered service of process pursuant to CPLR 308(4)--The Dobkin Trilogy. 33 Alb.L.Rev. 330
(1969).
CPLR 302 applies where plaintiff is agent transacting defendant's business. 39 St.John's L.Rev. 417
(1965).
CPLR 302(a): Fiduciary shield doctrine prevents the exercise of long-arm jurisdiction over non-resident
corporate officer acting in corporate capacity. 59 St.John's L.Rev. 803 (1985).
CPLR 302(b): long-arm statute unavailable in action seeking determination of paternity and payment of
child support against nonresident. 56 St.John's L.Rev. 744 (1982).
Defendant domiciliary when cause of action arises--non-domiciliary at time action commenced. 41
St.John's L.Rev. 129 (1966).
Developments in long-arm jurisdiction. Robert A. Barker, 218 N.Y.L.J. 3 (Nov. 17, 1997).
Doing business--conflict of laws. 17 Syracuse L.Rev. 139 (1965).
“Doing business” jurisdiction: some unresolved issues. Vincent C. Alexander, 225 N.Y.L.J. 3 (March 19,
2001).
Dropping the other shoe: Shaffer v. Heitner and the demise of presence-oriented jurisdiction. 45
Brook.L.Rev. 565 (1979).
Due process, jurisdiction over nonresidents and foreign corporations. 18 Cornell L.Q. 435 (1933).
Enjoining foreign litigation. Robert A. Barker, 222 N.Y.L.J. 3 (July 19, 1999).
Expanding jurisdiction over foreign torts: The 1966 amendment of New York's long-arm statute. 16
Buff.L.Rev. 67 (1966).
Expansion of jurisdiction does not broaden the doing business concept. 39 St.John's L.Rev. 413 (1965).
Expansion of jurisdiction over non-domiciliaries. 38 Alb.L.Rev. 264 (1964).
Failure to notify commissioner of vehicles of change of address; long arm jurisdiction. Robert A. Barker,
223 N.Y.L.J. 3 (Feb. 16, 2000).
Page 63
Feathers v. McLucas legislative effect on CPLR 302. 33 Brook.L.Rev. 107 (1966).
Fiduciary shield; jurisdiction for corporate agent. Robert A. Barker, 223 N.Y.L.J. 3 (Jan. 19, 2000).
Filing system for starting actions. Robert A. Barker, 210 N.Y.L.J. 3 (1993).
First Judicial Interpretations of the N.Y. Single Act Statute. P. Thornton, 30 Brook.L.Rev. 285 (1964).
From the internet to court: exercising jurisdiction over world wide web communications. Gwenn M. Kalow, 65 Fordham L.Rev. 2241 (1997).
Full faith and credit to child-support orders. Joel R. Brandes and Carole L. Weidman, 214 N.Y.L.J. 3
(Aug. 22, 1995).
Immunity of nonresident plaintiff from service of process in a separate action. 25 Fordham L.Rev. 365
(1956).
Jurisdiction, service and appearance under the CPLR. 37 St.John's L.Rev. 285 (1963).
Jurisdiction and service of process. 27 Alb.L.Rev. 178 (1963).
Jurisdiction and service problems in class actions. 9 Buff.L.Rev. 433, 441 (1960).
Jurisdiction based on residence. 21 St.John's L.Rev. 135 (1947).
Jurisdiction over nondomiciliaries. 51 Cornell L.Q. 377 (1966).
Jurisdiction over non-resident plaintiffs under cross-action statutes. 38 Colum.L.Rev. 670 (1938).
Jurisdiction over non-residents in arbitration proceedings. 17 N.Y.U.L.Rev. 527 (1940).
Jurisdiction over non-residents in personal actions. 25 Colum.L.Rev. 204 (1925).
Law revision commission and courts. 40 Cornell L.Q. 646 (1955).
Line between liberty and union: exercising personal jurisdiction over officials from other states. Tracy O.
Appleton, 107 Colum. L. Rev. 1944 (December, 2007).
Long-arm and multiple defendants: the conspiracy theory of in personam jurisdiction. 84 Colum.L.Rev.
506 (1984).
Long-arm jurisdiction. Peter C. Valente and Joann T. Palumbo, 216 N.Y.L.J. 3 (Aug. 7, 1996).
Long-arm jurisdiction in products liability actions: an “effect test” analysis of Worldwide Volkswagen
Corp. v. Woodson. 45 Alb.L.Rev. 179 (1980).
Long-arm jurisdiction over doctors and hospitals. Thomas A. Moore and Matthew Gaier, 219 N.Y.L.J. 3
(June 2, 1998).
Long-arm jurisdiction over publishers: to chill a mocking word. 67 Colum.L.Rev. 342 (1967).
Page 64
Long-arm jurisdiction update. Thomas A. Moore and Matthew Gaier, 228 N.Y.L.J. 3 (August 6, 2002).
Long-arm statute: the need for amendment. 13 N.Y.L.F. 407 (1967).
Long-arm statute. 38 St.John's L.Rev. 195 (1963).
Matrimonial jurisdiction. Myrna Felder, 212 N.Y.L.J. 3 (Dec. 30, 1994).
Mendon Ponds Problem Subsists, Generation Dismissal For Filing Initiatory Papers in Wrong Clerk's Office; Amendment of CPLR 2001 Doesn't Overrule It. David D. Siegel; Siegel Practice Rev. 195 (March,
2008)
Modern reformation: An overview of New York's domestic relations law overhaul. Meaghan E. Howard,
29 Touro L. Rev. 389 (2013).
New efforts to eliminate domestic violence. Joel R. Brandes and Carole L. Weidman, 215 N.Y.L.J. 3 (Jan.
23, 1996).
New quasi in rem jurisdiction: New York's revival of a doctrine whose time has passed. Mushlin, 55
Brook.L.Rev. 1059 (1990).
New York civil practice (1990 survey). Jay C. Carlisle, 42 Syracuse L.Rev. 343 (1991).
New York contract unnecessary for “transaction of business.” 40 St.John's L.Rev. 133 (1965).
New York “Long-Arm” Statute and products liability for out-of-state injury. 64 Colum.L.Rev. 1354
(1964).
New York's appellate courts wrestle with significant issues in internet defamation cases. Alan J. Pierce,
76 Alb. L. Rev. 1053 (2012/2013).
New York's long-arm statute contains provisions suitable for jurisdiction over web sites. Joshua S. Bauchner, 72 N.Y.St.B.J. 26 (March/April, 2000).
1988 Survey of New York law: Civil practice. Carlisle, 40 Syracuse L.Rev. 77 (1989).
1984 survey of New York law: conflict of laws. Herzog, 36 Syracuse L.Rev. 119 (1985).
1987 Survey of New York law: Civil practice. Carlisle, 39 Syracuse L.Rev. 75 (1988).
1986 Survey of New York law--Civil practice. Carlisle, 38 Syracuse L.Rev. 67 (1987).
1990 Survey of New York law: Conflict of laws. Reese, 42 Syracuse L.Rev. 457 (1991).
1990 Survey of New York law: New York civil practice. Carlisle, 42 Syracuse L.Rev. 343 (1991).
1998-99 survey of New York law: Conflict of laws. Patricia Youngblood Reyhan, 50 Syracuse L.Rev. 475
(2000).
1966 Amendment affecting this section. 41 St.John's L.Rev. 471 (1967).
Page 65
Nonresident criminal defendants, immunity from process. 51 Cornell L.Q. 411 (1966).
Non-resident web sites and long-arm jurisdiction. Kenneth Pasquale and Robyn Gemeiner, 223 N.Y.L.J. 5
(April 27, 2000).
Ownership, use or possession of real property. 40 St.John's L.Rev. 138 (1965).
Personal jurisdiction and the internet. Michael C. Silberberg, 216 N.Y.L.J. 3 (Nov. 7, 1996).
Personal jurisdiction over foreign corporations in product liability cases. 50 Cornell L.Q. 551 (1965).
Personal jurisdiction over nondomiciliaries. 49 Cornell L.Q. 110 (1963).
Plaintiff agent transacting defendant's business. 39 St.John's L.Rev. 414 (1965).
Preclusion of an issue; long-arm jurisdiction. Robert A. Barker, 217 N.Y.L.J. 3 (May 19, 1997).
Presence-by-communication cases; jurisdiction. Robert A. Barker, 223 N.Y.L.J. 3 (Feb. 16, 2000).
Problems in class actions created by changes in procedural rules. 9 Buff.L.Rev. 433 (1960).
Re-examining New York's law of personal jurisdiction after Goodyear Dunlop Tires Operations, S.A. v.
Brown and J. McIntyre Machinery, Ltd. v. Nicastro. Oscar G. Chase and Lori Brooke Day, 76 Alb. L.
Rev. 1009 (2012/2013).
Retaining a New York attorney not “transacting business” within state. 41 St.John's L.Rev. 294 (1966).
Seider v. Roth after Shaffer v. Heitner. 45 Brook.L.Rev. 505 (1979).
Service by publication, action for money only. 24 Fordham L.Rev. 703 (1955).
Service of process on non-domiciliaries, personal jurisdiction. 29 Syracuse L.Rev. 150 (1965).
Service on non-resident tortfeasor. 31 Brook.L.Rev. 184 (1964).
Service upon legal representative of deceased nonresident motorist. 26 Fordham L.Rev. 721 (1957).
Sipping Seider through a straw. 45 Brook.L.Rev. 533 (1979).
Special jurisdictional rules in mass tort cases. Peter R. Schlam and Harey M. Stone, 207 N.Y.L.J. 3
(1992).
Statutory extension of in personam jurisdiction in New York. 29 Brook.L.Rev. 305 (1963).
Subsidiary corporations in New York: when is mere ownership enough to establish jurisdiction over the
parent. 22 Buff.L.Rev. 681 (1973).
Survey of New York practice. 60 St.John's L.Rev. 580 (1986).
Tortious act committed within the state. 17 Syracuse L.Rev. 49 (1965).
Page 66
“Tortious act”, construction of. 66 Colum.L.Rev. 199 (1966).
Tortious act distinguished from resultant injury. 40 St.John's L.Rev. 134 (1965).
Transacting business as jurisdictional basis. 14 Buff.L.Rev. 525 (1965).
Transacting business within the state under New York long arm statute. 34 Brook.L.Rev. 148 (1967).
Transaction of business, acts constituting. 39 St.John's L.Rev. 414 (1965).
Trends in civil practice, easier acquisition of jurisdiction. 62 Colum.L.Rev. 1431, 1435 (1962).
Unauthorized appearance. 25 St.John's L.Rev. 325 (1951).
Untying our hands: case for uniform personal jurisdiction over libel tourists. Todd W. Moore, 77 Fordham
L. Rev. 3207 (2009).
Use of conspiracy theory to establish in personam jurisdiction: due process analysis. Althouse, 52 Fordham L.Rev. 234 (1983).
Validity of substituted service on the executor or administrator of non-residents. 21 Cornell L.Q. 458
(1936).
Welcome to the city of bytes? An assessment of the traditional methods employed in the international application of jurisdiction over Internet activities--including a critique of suggested approaches. Asaad Siddiqi, 14 N.Y.Int'l.L.Rev. 43 (2001).
Which cases are “such cases”: interpreting and applying section 12 of the Clayton Act. Adam B. Perry, 76
Fordham L. Rev. 1177 (November, 2007).
When motion papers violate Local Civil Rules. Michael C. Silberberg, 213 N.Y.L.J. 3 (May 4, 1995).
LIBRARY REFERENCES
12(2).
Courts
Westlaw Topic No. 106.
C.J.S. Courts §§ 53 to 55, 57 to 68.
RESEARCH REFERENCES
ALR Library
1 ALR, Federal 15, Questions as to Convenience and Justice of Transfer Under Forum Non Conveniens Provision of Judicial Code (28 U.S.C.A. § 1404(a)).
155 ALR, Federal 535, Effect of Use, or Alleged Use, of Internet on Personal Jurisdiction in, or Venue of, Federal Court Case.
Page 67
1 ALR International 1, Construction and Application of United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 330 U.N.T.S. 38, Also Known as “New York Convention”--Global Cases: Jurisdictional...
3 ALR 6th 153, Individual and Corporate Liability for Libel and Slander in Electronic Communications, Including E-Mail, Internet and Websites.
25 ALR 6th 435, Validity, Construction, Application, and Effect of Master Settlement Agreement (Msa)
Between Tobacco Companies and Various States, and State Statutes Implementing Agreement; Use and Distribution of Msa...
54 ALR 6th 99, Invasion of Privacy by Internet or Website Postings.
79 ALR 5th 587, Validity, Construction, and Application of “Fiduciary Shield” Doctrine--Modern Cases.
81 ALR 5th 41, Internet Web Site Activities of Nonresident Person or Corporation as Conferring Personal Jurisdiction Under Long-Arm Statutes and Due Process Clause.
88 ALR 5th 545, Construction and Application of Uniform Foreign Money-Judgments Recognition Act.
28 ALR 5th 664, Execution, Outside of Forum, of Guaranty of Obligations Under Contract to be Performed
Within Forum State as Conferring Jurisdiction Over Non-Resident Guarantors Under “Long-Arm” Statute or
Rule of...
9 ALR 4th 661, in Personam Jurisdiction Under Long-Arm Statute of Nonresident Banking Institution.
69 ALR 4th 14, Products Liability: Personal Jurisdiction Over Nonresident Manufacturer of Component Incorporated in Another Product.
25 ALR 4th 706, in Personam Jurisdiction, Under Long-Arm Statute, Over Nonresident Physician, Dentist, or
Hospital in Medical Malpractice Action.
24 ALR 3rd 532, Construction and Application of State Statutes or Rules of Court Predicating in Personam Jurisdiction Over Nonresidents or Foreign Corporations on the Commission of a Tort Within the State.
27 ALR 3rd 397, Construction and Application, as to Isolated Acts or Transactions, of State Statutes or Rules of
Court Predicating in Personam Jurisdiction Over Nonresidents or Foreign Corporations Upon the Doing of an
Act, or Upon...
Page 68
23 ALR 3rd 551, Construction and Application of State Statutes or Rules of Court Predicating in Personam Jurisdiction Over Nonresidents or Foreign Corporations on Making or Performing a Contract Within the State.
19 ALR 3rd 13, Products Liability: in Personam Jurisdiction Over Nonresident Manufacturer or Seller Under
“Long-Arm” Statutes.
20 ALR 3rd 1201, Validity, as a Matter of Due Process, of State Statutes or Rules of Court Conferring in Personam Jurisdiction Over Nonresidents or Foreign Corporations on the Basis of Isolated Business Transaction
Within...
86 ALR 2nd 1000, Manner of Service of Process Upon Foreign Corporation Which Has Withdrawn from State.
38 ALR 2nd 747, What Constitutes Doing Business Within State by a Foreign Magazine, Newspaper, or Other
Publishing Corporation, for Purposes Other than Taxation.
39 ALR 710, Separate Domicil of Wife for Purposes of Jurisdiction Over Subject-Matter of Suit by Her for Divorce or Separation.
107 ALR 862, Statutory or Constitutional Provisions as to Venue as Denial of Equal Protection of Laws.
126 ALR 1104, Effect of Agreement by Foreign Corporation to Service or Repair Article Sold or Leased by it to
Bring Transaction Within State Control.
128 ALR 1447, Federal Venue Statute Providing that Where Jurisdiction is Founded on Diversity of Citizenship
Suit Shall be Brought Only in the District of the Residence of Either the Plaintiff or Defendant as Affected by
Fact that...
130 ALR 440, Burden of Allegation and Proof in Civil Cases as Regards Exception in Statute.
138 ALR 1464, Construction and Application of Statute Providing for Constructive or Substituted Service of
Process on Nonresident Motorists.
145 ALR 700, Venue of Action Against an Unincorporated Association.
159 ALR 496, What Constitutes Residence or Domicil Within State for Purpose of Jurisdiction in Divorce.
168 ALR 232, Jurisdiction to Render Judgment for Arrearage of Alimony Without Personal Service Upon Defendant of Whom Court Had Jurisdiction in the Original Divorce Suit.
Page 69
154 ALR 323, Specific Performance, or Other Equitable Enforcement, of Agreement for Wife's Support or Alimony.
155 ALR 1231, Jurisdiction of Actions or Proceedings Involving Internal Affairs of Foreign Corporations.
146 ALR 941, Solicitation Within State or District of Columbia of Orders for Goods to be Shipped from Other
State as Doing Business Within State Within Statutes Prescribing Conditions of Doing Business or Providing for
Service of...
136 ALR 621, Action or Proceeding Which Directly or Indirectly Seeks to Establish Liability of, or to Recover
Judgment Against, a Nonresident Executor or Administrator, or Other Fiduciary, as One in Personam or in Rem,
as Regards...
137 ALR 1128, What Constitutes Doing Business Within State by Foreign Insurance Corporation.
133 ALR 1171, Right of Foreign Corporation or Its Assignee to Maintain an Action in Federal Court Which it
Could Not Have Maintained in State Court Because of Noncompliance With Conditions of Doing Business in
State.
134 ALR 1244, Jurisdiction in Proceedings for Administration of Estate of Decedent or Guardianship of Infant
or Incompetent as Exclusive of Jurisdiction of Other Courts of Proceedings by Surviving Partner of Decedent,
Infant, or...
113 ALR 9, Who, Other than Public Official, May be Served With Process in Action Against Foreign Corporation Doing Business in State.
91 ALR 1327, Power of State to Provide for Service, Other than Personal, of Process Upon Nonresident Individual Doing Business Within the State So as to Subject Him to Judgment in Personam.
65 ALR 431, Duty and Liability of Garage Keeper to Owner of Car.
Encyclopedias
46 Am. Jur. Proof of Facts 2d 313, Products Liability: Continuation of Business Enterprise or Product Line by
Successor Corporation.
9 Am. Jur. Proof of Facts 3d 687, Invalidity of Judgment of Court of Foreign Country.
22 Am. Jur. Proof of Facts 3d 305, Affirmative Defenses in Libel Actions.
Page 70
50 Am. Jur. Proof of Facts 3d 371, Liability for Sale of Forged Antique or Work of Art.
59 Am. Jur. Proof of Facts 3d 1, Proof of Personal Jurisdiction in the Internet Age.
60 Am. Jur. Proof of Facts 3d 363, Liability for a Corporation's Failure to File as a Corporation Doing Business
in a Foreign Jurisdiction.
68 Am. Jur. Proof of Facts 3d 179, Media Outrage.
84 Am. Jur. Proof of Facts 3d 93, Establishing Liability for Trademark Infringement by the Use of Website
Metatags.
99 Am. Jur. Proof of Facts 3d 393, Proof of Facts Establishing Affirmative Defenses Against a Claim for Defamation.
102 Am. Jur. Proof of Facts 3d 1, Proof of Facts Allowing a Federal Court to Assert Personal Jurisdiction Over a
Defendant Not Present in the United States.
123 Am. Jur. Proof of Facts 3d 197, Proof of Internet Defamation.
3 Am. Jur. Trials 553, Selecting the Forum--Plaintiff's Position.
34 Am. Jur. Trials 207, Defective Wheelchair Lift Litigation.
84 Am. Jur. Trials 109, Litigating Against the Firearm Industry.
87 Am. Jur. Trials 75, Defense of a Domain Name Dispute.
Am. Jur. 2d, Libel and Slander § 400, Jurisdiction--Personal Jurisdiction Over Defendant; Minimum Contacts.
Am. Jur. 2d, Process § 165, Acts Which May Bring Nonresident Within Long-Arm Statute.
Am. Jur. 2d, Process § 170, Tortious Acts; Products Liability.
Am. Jur. 2d, Process § 172, Application of Test; Determining Factors, Concerns, and Considerations.
Forms
Page 71
Carmody-Wait, 2d § 25:4, Generally; Jurisdiction Over Persons Within the State.
Carmody-Wait, 2d § 118:4, Jurisdiction.
Carmody-Wait, 2d § 2:152, Territorial Limitations; Lack of Long-Arm Jurisdiction.
Carmody-Wait, 2d § 2:171, Long-Arm Jurisdiction.
Carmody-Wait, 2d § 2:189, Small Claims Part.
Carmody-Wait, 2d § 2:233, Form: Affirmation of Attorney in Support of Cross-Motion to Remove Action from
Supreme Court to Civil Court--Damages Less Than Jurisdictional Limit.
Carmody-Wait, 2d § 24:86, Persons Who May Serve Process Outside the State.
Carmody-Wait, 2d § 25:10, Jurisdiction Over Parties Outside the State.
Carmody-Wait, 2d § 25:18, Statutory Provisions.
Carmody-Wait, 2d § 25:19, Purpose of Statute.
Carmody-Wait, 2d § 25:20, Validity of “Long-Arm” Statute.
Carmody-Wait, 2d § 25:21, “Minimum Contacts” Test.
Carmody-Wait, 2d § 25:22, “Purposeful Activity” Requirement.
Carmody-Wait, 2d § 25:23, Persons or Entities Subject to Long-Arm Jurisdiction.
Carmody-Wait, 2d § 25:25, Persons or Entities Subject to Long-Arm Jurisdiction--Former Domiciliaries.
Carmody-Wait, 2d § 25:26, Sufficiency of Allegation of Jurisdiction.
Carmody-Wait, 2d § 25:28, Corporate Subsidiaries or Departments.
Carmody-Wait, 2d § 25:30, Agents of Common Principal.
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Carmody-Wait, 2d § 25:32, Conspiracy Through Agent.
Carmody-Wait, 2d § 25:33, “Transacts Any Business” as Jurisdictional Basis.
Carmody-Wait, 2d § 25:34, “Doing Business” Distinguished from “Transacts Any Business”.
Carmody-Wait, 2d § 25:36, Negotiation and Execution of Contracts.
Carmody-Wait, 2d § 25:37, Contract to Supply Goods or Services in State.
Carmody-Wait, 2d § 25:38, Banking, Credit, and Other Financial Transactions.
Carmody-Wait, 2d § 25:40, Stocks or Other Securities Transactions.
Carmody-Wait, 2d § 25:41, Employment of New York Counsel.
Carmody-Wait, 2d § 25:43, Advertising or Solicitation of Business.
Carmody-Wait, 2d § 25:44, Interstate Telephone, Telex, Fax, or Mail Communications.
Carmody-Wait, 2d § 25:45, Maintaining Internet Site.
Carmody-Wait, 2d § 25:46, Relations With Distributors, Licensees, Franchisees, or Brokers.
Carmody-Wait, 2d § 25:48, Tortious Acts Committed Within State.
Carmody-Wait, 2d § 25:50, Requirement that Injury Occur Within State.
Carmody-Wait, 2d § 25:51, Requirement that Injury Occur Within State--Injury Sustained at Out-Of-State Resort or on High Seas.
Carmody-Wait, 2d § 25:52, Tortfeasor Doing Business in State.
Carmody-Wait, 2d § 25:53, Deriving Substantial Revenue in State.
Carmody-Wait, 2d § 25:54, Expectation of Consequences; Foreseeability.
Page 73
Carmody-Wait, 2d § 25:55, Deriving Substantial Revenue from Interstate or International Commerce.
Carmody-Wait, 2d § 25:57, Necessity that Cause of Action Arise from Ownership, Use, or Possession of Property.
Carmody-Wait, 2d § 25:58, Demand for Support, Alimony, or Other Relief; Separation Agreements.
Carmody-Wait, 2d § 25:59, Service of Process in Support, Protection, Abuse, or Neglect Proceedings.
Carmody-Wait, 2d § 40:29, Form: Interpleader Complaint--Action by Law Firm Acting as Escrow Agent of Deposit Held Under Agreement to Purchase Real Estate Between Buyer and Seller.
Carmody-Wait, 2d § 54:58, Corporation; Entity Doing Business in State.
Carmody-Wait, 2d § 92:90, Where Deficiency Judgment Sought.
Carmody-Wait, 2d § 119:78, Personal Jurisdiction.
Carmody-Wait, 2d § 121:11, Designation of Secretary of State or Other State Official as Agent for Service of
Process.
Carmody-Wait, 2d § 121:19, Service of Process on Unauthorized Foreign Insurer.
Carmody-Wait, 2d § 121:71, Effect of Withdrawal of Corporation from State.
Carmody-Wait, 2d § 121:77, Jurisdiction as Consequence of Doing Business or Unauthorized Acts.
Carmody-Wait, 2d § 121:84, Generally; “Presence” or Doing Business Test.
Carmody-Wait, 2d § 121:86, Minimum Contact With State as Test.
Carmody-Wait, 2d § 121:87, Minimum Contact Test for the “Long-Arm” Statute.
Carmody-Wait, 2d § 121:90, Time of Doing Business.
Carmody-Wait, 2d § 121:95, Doing Business in Interstate Commerce.
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Carmody-Wait, 2d § 129:50, Actions Against Foreign Representatives of Decedents.
Carmody-Wait, 2d § 19:267, Service of Supplemental Summons and Complaint.
Carmody-Wait, 2d § 24:121, Service on Subsidiary or Related Corporation.
Carmody-Wait, 2d § 29:264, Form: Complaint in Action for Libel Against Physicians Who Distributed Libelous
Letter About Plaintiff Physician in Retaliation for Negative Performance Evaluation.
Carmody-Wait, 2d § 29:289, Form: Complaint in Medical Malpractice Action by Patient and Spouse--Against
Surgeons and Hospital--Thigh Reduction Surgery.
Carmody-Wait, 2d § 38:107, Particular Jurisdictional Defects.
Carmody-Wait, 2d § 38:112, Form: Affirmation of Defendant's Attorney in Support of Notice of Motion to Dismiss Complaint Based on Lack of Personal Jurisdiction--Automobile Accident Outside of New York.
Carmody-Wait, 2d § 38:115, Opportunity to Complete Discovery.
Carmody-Wait, 2d § 39:209, Form: Affirmation of Plaintiff's Attorney in Support of Motion for Summary Judgment in Lieu of Complaint--Judgment in Foreign Country--United Kingdom.
Carmody-Wait, 2d § 39:210, Form: Affidavit of Plaintiff's English Solicitor in Support of Motion for Summary
Judgment in Lieu of Complaint--Judgment in Foreign Country--United Kingdom.
Carmody-Wait, 2d § 76:222, Form: Affirmation of Defendant's Attorney in Support of Motion to Vacate Order
of Attachment--Attachment by Foreign Bank Against Another Foreign Bank.
Carmody-Wait, 2d § 78:207, Form: Complaint--Permanent Injunction to Restrain Educational Testing Company
from Reporting Student's Alleged Cheating on Test for Which There was Insufficient Evidence of Cheating.
Carmody-Wait, 2d § 114:106, Domicil or Residence of Alien.
Carmody-Wait, 2d § 114:111, Where Cause Occurred in State and Either Party is Resident.
Carmody-Wait, 2d § 114:117, “Long-Arm” Personal Jurisdiction Over Nondomiciliaries.
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Carmody-Wait, 2d § 114:118, “Long-Arm” Personal Jurisdiction Over Nondomiciliaries--Necessity of New
York Domicil Before Separation.
Carmody-Wait, 2d § 114:119, Appearance and Jurisdictional Objections.
Carmody-Wait, 2d § 114:136, Place of Service; Inside or Outside of State.
Carmody-Wait, 2d § 114:416, Service of Process.
Carmody-Wait, 2d § 117:198, Process; Long-Arm Statute.
Carmody-Wait, 2d § 117:227, Jurisdiction--In Rem and Personal Jurisdiction.
Carmody-Wait, 2d § 119A:32, Extraterritorial Jurisdiction.
Carmody-Wait, 2d § 119A:69, Service of Summons and Child Protective Petition--Service of Child Protective
Petition Outside of State.
Carmody-Wait, 2d § 121:101, Ownership of Realty Within State.
Carmody-Wait, 2d § 121:103, Purchasing Equipment and Materials.
Carmody-Wait, 2d § 121:106, Placement of Orders for Goods.
Carmody-Wait, 2d § 121:110, Generally; “Transacts Any Business”.
Carmody-Wait, 2d § 121:111, “Articulable Nexus” Requirement.
Carmody-Wait, 2d § 121:112, “Purposeful Activity” Requirement.
Carmody-Wait, 2d § 121:114, Internet Transactions.
Carmody-Wait, 2d § 121:116, Tortious Act Committed Within State.
Carmody-Wait, 2d § 121:118, Doing Business and Revenue Requirements.
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Carmody-Wait, 2d § 121:119, Expectation of Tortious Act Having Consequences in State; Foreseeability Requirement.
Carmody-Wait, 2d § 121:120, Substantial Revenue from Interstate or International Commerce Requirement.
Carmody-Wait, 2d § 121:121, Defamation.
Carmody-Wait, 2d § 121:210, Plaintiff as Defendant in Supplemental Complaint; Substitution.
Carmody-Wait, 2d § 121:320, Generally; Liability Under Business Corporation Law--Standing.
Carmody-Wait, 2d § 130:109, Form: Complaint in Action for Wrongful Death--Medical Malpractice--Against
Hospital and Physicians.
Carmody-Wait, 2d § 149:184, Additional Statutory Bases for Jurisdiction.
McKinney's Forms, Business Corporation Law § 5:51, Liability of Directors.
McKinney's Forms, Business Corporation Law § 13:33, Actions Against Foreign Corporations.
McKinney's Forms, Business Corporation Law § 13:36, Jurisdiction Over Unauthorized Foreign Corporations;
Service of Process Thereon, Generally.
McKinney's Forms, Business Corporation Law § 13:37, Manner of Service on Unauthorized Foreign Corporations.
McKinney's Forms, Business Corporation Law § 13:39, Affidavit in Support of Motion to Dismiss Complaint on
Ground of Lack of Personal Jurisdiction Because of Improper Service Under N.Y. Bus. Corp. Law
S307--Personal Injury Claim (Form).
McKinney's Forms, Business Corporation Law § 4:189, Liability of Shareholders for Wages.
McKinney's Forms, Civil Practice Law & Rules § 1:2, The Stages of a Civil Lawsuit.
McKinney's Forms, Civil Practice Law & Rules § 1:49, Effect of Defendant's Absence from State or Residence
Under False Name.
Page 77
McKinney's Forms, Civil Practice Law & Rules § 2:27, Personal and Rem Jurisdiction, Generally.
McKinney's Forms, Civil Practice Law & Rules § 2:28, Affidavit in Support of Plaintiff's Motion to Dismiss Affirmative Defense of Lack of Personal Jurisdiction and in Opposition to Defendant's Motion to Dismiss Complaint for Lack of Personal...
McKinney's Forms, Civil Practice Law & Rules § 2:29, Affidavit in Support of Plaintiff's Motion for Reargument of Motion to Dismiss Affirmative Defense of Lack of Personal Jurisdiction (Form: N.Y. C.P.L.R. 302,
2221, 3211).
McKinney's Forms, Civil Practice Law & Rules § 2:30, Further Affidavit in Support of Plaintiff's Motion for
Reargument of Motion to Dismiss Affirmative Defense of Lack of Personal Jurisdiction (Form: N.Y. C.P.L.R.
302, 2221, 3211).
McKinney's Forms, Civil Practice Law & Rules § 2:60, Service of Process in In Personam Actions.
McKinney's Forms, Civil Practice Law & Rules § 2:90, Order Permitting Service in Manner Directed by Court-To Last Known Address (Form: N.Y. C.P.L.R. 308(5)).
McKinney's Forms, Civil Practice Law & Rules § 2:99, Affirmation in Support of Motion to Vacate Order for
Expedient Service of Process and to Dismiss Action With Prejudice (Form: N.Y. C.P.L.R. 308(5)).
McKinney's Forms, Civil Practice Law & Rules § 5:70, Motions to Dismiss a Cause of Action Under N.Y.
C.P.L.R. 3211(a).
McKinney's Forms, Civil Practice Law & Rules § 9:85, Record on Appeal: Content, Generally; the Three Methods.
McKinney's Forms, Civil Practice Law & Rules § 2:128, Affidavit of Personal Service Without State by Resident of State (Form: N.Y. C.P.L.R. 306, 313).
McKinney's Forms, Civil Practice Law & Rules § 2:198, Affidavit in Support of Motion to Dismiss Complaint
on Ground of Forum Non Conveniens--Breach of Contract Action (Form: N.Y. C.P.L.R. 327).
McKinney's Forms, Civil Practice Law & Rules § 4:229, The Answer.
McKinney's Forms, Civil Practice Law & Rules § 4:304, Amended and Supplemental Pleadings.
Page 78
McKinney's Forms, Civil Practice Law & Rules § 5:149, Affidavit of Attorney in Opposition to Motion to Dismiss Complaint Upon Ground that Court Has No Jurisdiction of Person of Defendant (Form: N.Y. C.P.L.R.
3211(A)(8)).
McKinney's Forms, Civil Practice Law & Rules § 5:150, Affidavit of Plaintiff in Opposition to Motion to Dismiss Complaint Upon Ground that Court Has No Jurisdiction of Person of Defendant--Example 1 (Form: N.Y.
C.P.L.R. 3211(A)(8)).
McKinney's Forms, Civil Practice Law & Rules § 5:162, Affidavit in Support of Motion to Dismiss Defense
(Form: N.Y. C.P.L.R. 3211(B)).
McKinney's Forms, Civil Practice Law & Rules § 5:165, Affidavit in Support of Motion to Renew Prior Motion
to Dismiss Defense of Lack of Personal Jurisdiction or for Additional Discovery (Form: N.Y. C.P.L.R. 3211(B)
).
McKinney's Forms, Estates & Surrogate Prac. § 14:3, Actions Maintainable--Foreign Representatives.
McKinney's Forms, Estates & Surrogate Prac. § 2:17, in Personam Jurisdiction.
McKinney's Forms, Estates & Surrogate Prac. § 2:24, Attorney's Affidavit in Support of Motion to Dismiss
Complaint on the Grounds that Decedent was Not a New York State Domiciliary and the Court Lacks Personal
Jurisdiction Over Defendant...
McKinney's Forms, Estates & Surrogate Prac. § 2:43, Service of Process by Personal Delivery.
McKinney's Forms, Estates & Surrogate Prac. § 2:79, Persons Authorized to Serve Process.
McKinney's Forms, Matrimonial and Family Law § 8:2, The Nature and Purpose of the Durational Residence
Standards.
McKinney's Forms, Matrimonial and Family Law § 7:23, Order to Show Cause on Wife's Motion to Dismiss or
Stay Husband's Connecticut Action (Form: N.Y. C.P.L.R. 302, 327, 3211, 3017).
McKinney's Forms, Matrimonial and Family Law § 6:57, Affidavit of Party in Support of Motion to Dismiss Enforcement Action on Grounds of Lack of Jurisdiction.
McKinney's Forms, Matrimonial and Family Law § 6:58, Affirmation of Attorney in Support of Motion to Dismiss Enforcement Action on Grounds of Lack of Jurisdiction.
Page 79
McKinney's Forms, Matrimonial and Family Law § 7:19, Personal Jurisdiction--Long-Arm Statute.
McKinney's Forms, Matrimonial and Family Law § 7:20, Notice of Motion to Dismiss Divorce Action for Lack
of Personal Jurisdiction (Form: N.Y. C.P.L.R. 301, 302, 3211; N.Y. Dom. Rel. Law S230).
McKinney's Forms, Matrimonial and Family Law § 7:24, Answer of Wife Containing Affirmative Defense of
Prior Action Pending in Other Jurisdiction (Form: N.Y. C.P.L.R. 327, 3211, 3017).
McKinney's Forms, Matrimonial and Family Law § 7:25, Affirmation of Wife's Counsel in Support of Motion to
Dismiss or Stay Husband's Connecticut Action (Form: N.Y. C.P.L.R. 327, 3211, 3017).
McKinney's Forms, Matrimonial and Family Law § 7:28, Sequestration as Conferring Quasi in Rem Jurisdiction.
McKinney's Forms, Matrimonial and Family Law § 9:20, Personal Jurisdiction by Service Without the State.
McKinney's Forms, Matrimonial and Family Law § 9:34, Appearance Generally.
McKinney's Forms, Matrimonial and Family Law § 23:31, Personal Jurisdiction.
McKinney's Forms, Matrimonial and Family Law § 12:218, Injunction Restraining Foreign Actions.
McKinney's Forms, Not-For-Profit Corp. Law § 1:11, Foreign Corporations.
McKinney's Forms, Not-For-Profit Corp. Law § 13:1, Commentary.
McKinney's Forms, Not-For-Profit Corp. Law § 15:82, Notice of Motion by Children of Deceased to Dismiss
Complaint in Action for Fraud in Connection With Disinterment for Removal to Another Cemetery.
McKinney's Forms, Not-For-Profit Corp. Law § 15:83, Affidavit in Support of Motion by Children of Deceased
to Dismiss Complaint in Action for Fraud in Connection With Disinterment for Removal to Another Cemetery.
McKinney's Forms, Real Property Practice § 8:4, Service of Process.
McKinney's Forms, Real Property Practice § 17:3, Nature and Scope of Action.
McKinney's Forms, Real Property Practice § 17:9, Personal Jurisdiction.
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McKinney's Forms, Real Property Practice § 17:211, Deficiency Judgment--Generally.
McKinney's Forms, Selected Consol. Law, Correction Law § 755 Form 6, Complaint for Wrongful Termination
Based Upon Criminal History.
McKinney's Forms, Selected Consol. Law, Insurance Law § 1213 Form 3, Demand in Complaint for Preanswer
Security from Unauthorized Insurer.
McKinney's Forms, Selected Consol. Law, Insurance Law § 1308 Form 2, Complaint in Action to Recover Reinsurance Proceeds Payable to Superintendent of Insurance as Liquidator.
McKinney's Forms, Selected Consol. Law, Religious Corporations Law § 42 Form 1, Complaint in Action for
Declaratory and Injunctive Relief to Determine Whether Episcopal Diocese was Entitled to Recover Real and
Personal Property from Schismatic Episcopal...
Treatises and Practice Aids
Fletcher Cyclopedia Law of Private Corporations § 5520, Suit in Equity to Compel Transfer--Pleading and Practice.
Fletcher Cyclopedia Law of Private Corporations § 8653, Scope and Operation of State Statutes--Long-Arm
Statutes--Enumerated Act Statutes.
Fletcher Cyclopedia Law of Private Corporations § 8677, Particular Acts or Transactions as Constituting “Doing
Business”--Agency Transactions.
Business”--Agency Transactions--Insurance.
Business”--Loans, Securities and Investments.
Business”--Sales and Purchases.
Fletcher Cyclopedia Law of Private Corporations § 8701, Venue--Doctrine of Forum Non Conveniens.
Fletcher Cyclopedia Law of Private Corporations § 8740, Person or Persons Who May or Must be Served-Service Upon Designated State Official--In General.
Page 81
Fletcher Cyclopedia Law of Private Corporations § 8763, Place for Service.
Fletcher Cyclopedia Law of Private Corporations § 8773, Service on Parent and Subsidiary Companies--In General.
Fletcher Cyclopedia Law of Private Corporations § 1296.10, Jurisdiction.
Fletcher Cyclopedia Law of Private Corporations § 8657.10, Statutes Authorizing Service Where Company Has
Property Within State.
Fletcher Cyclopedia Law of Private Corporations § 8745.10, Person or Persons Who May or Must be Served-Service on “Managing Agent,” “Business Agent,” “Head Agent,” “Superintendent,” Etc., Other than Executive
Officers--Suits in Federal...
Harris 5th N.Y. Estates: Probate Admin. & Litigation § 3:51, Jurisdictional Predicates, Generally.
Harris 5th N.Y. Estates: Probate Admin. & Litigation § 3:53, “Traditional” Bases of Personal Jurisdiction-Personal Service on Domiciliaries.
Harris 5th N.Y. Estates: Probate Admin. & Litigation § 3:55, “Additional Bases” of Personal Jurisdiction.
New York Pattern Jury Instructions--Civil 4:10, Contracts--Consent--Fraud in the Execution.
New York Pattern Jury Instructions--Civil 2:275, Comparative Fault--Apportionment of Fault Between Defendants.
NY Prac. Comm. Lit. in NY State Courts § 6:2, Technical Aspects Applicable to Every Complaint.
NY Prac. Comm. Lit. in NY State Courts § 11:3, Personal Jurisdiction and Service.
NY Prac. Comm. Lit. in NY State Courts § 13:3, Preliminary Matters--Forum Selection Clauses Distinguished.
NY Prac. Comm. Lit. in NY State Courts § 14:3, Strategic Considerations.
NY Prac. Comm. Lit. in NY State Courts § 19:3, Jurisdiction.
NY Prac. Comm. Lit. in NY State Courts § 19:9, Service of Process in Countries that Are Not Parties to the
Page 82
Hague Service Convention.
NY Prac. Comm. Lit. in NY State Courts § 2:14, Avoiding the Supreme Court's Subject Matter Jurisdiction-Suits Brought by and Against Foreign Corporations.
NY Prac. Comm. Lit. in NY State Courts § 2:19, Basic Principles.
NY Prac. Comm. Lit. in NY State Courts § 2:20, General Jurisdiction.
NY Prac. Comm. Lit. in NY State Courts § 2:21, Specific Jurisdiction.
NY Prac. Comm. Lit. in NY State Courts § 2:22, Specific Jurisdiction--Transacting Business in New York.
NY Prac. Comm. Lit. in NY State Courts § 2:23, Specific Jurisdiction--Tortious Act Committed in New York.
NY Prac. Comm. Lit. in NY State Courts § 2:24, Specific Jurisdiction--Tortious Act Committed Outside New
York.
NY Prac. Comm. Lit. in NY State Courts § 2:25, Specific Jurisdiction--Foreign Defamation Judgment.
NY Prac. Comm. Lit. in NY State Courts § 2:26, Specific Jurisdiction--Conspiracy Jurisdiction.
NY Prac. Comm. Lit. in NY State Courts § 2:27, Specific Jurisdiction--Ownership, Use or Possession of Real
Property.
NY Prac. Comm. Lit. in NY State Courts § 2:29, Jurisdiction and the Internet.
NY Prac. Comm. Lit. in NY State Courts § 2:30, in Rem Jurisdiction.
NY Prac. Comm. Lit. in NY State Courts § 2:31, Quasi in Rem Jurisdiction.
NY Prac. Comm. Lit. in NY State Courts § 2:32, Objecting to Jurisdiction.
NY Prac. Comm. Lit. in NY State Courts § 2:37, Methods of Service.
NY Prac. Comm. Lit. in NY State Courts § 2:47, Service Outside New York.
Page 83
NY Prac. Comm. Lit. in NY State Courts § 2:51, Minimum Contacts.
NY Prac. Comm. Lit. in NY State Courts § 2:54, Jurisdiction Under the Federal Rules of Civil Procedure.
NY Prac. Comm. Lit. in NY State Courts § 2:57, Jurisdictional Checklists--Plaintiff.
NY Prac. Comm. Lit. in NY State Courts § 2:58, Jurisdictional Checklists--Defendant.
NY Prac. Comm. Lit. in NY State Courts § 6:37, Complaint and Jury Demand.
NY Prac. Comm. Lit. in NY State Courts § 67:5, Choosing the Form of the Action and the Parties.
NY Prac. Comm. Lit. in NY State Courts § 68:5, The Exercise of Specific Jurisdiction.
NY Prac. Comm. Lit. in NY State Courts § 8:20, Jurisdictional Requirements.
NY Prac. Comm. Lit. in NY State Courts § 83:2, Jurisdiction.
NY Prac. Comm. Lit. in NY State Courts § 97:4, Preliminary Considerations--Long-Arm Jurisdiction.
NY Prac. Comm. Lit. in NY State Courts § 99:3, Introduction.
NY Prac. Comm. Lit. in NY State Courts § 99:7, Specific Jurisdiction: New York's Long-Arm Statute in ECommerce Cases.
NY Prac. Comm. Lit. in NY State Courts § 99:8, Specific Jurisdiction: New York's Long-Arm Statute in ECommerce Cases--“Transacting Business” Online.
NY Prac. Comm. Lit. in NY State Courts § 99:9, Tortious Acts Jurisdiction.
NY Prac. Comm. Lit. in NY State Courts § 106:8, Personal Jurisdiction.
NY Prac. Comm. Lit. in NY State Courts § 18:12, Jurisdiction Issues.
NY Prac. Comm. Lit. in NY State Courts § 77:27, Brokers.
Page 84
NY Prac. Comm. Lit. in NY State Courts § 77:43, Jurisdictional Issues.
NY Prac. Comm. Lit. in NY State Courts § 99:10, Tortious Acts Jurisdiction--CPLR 302(A)(2): Tortious Acts
Committed Within the State.
NY Prac. Comm. Lit. in NY State Courts § 99:11, Tortious Acts Jurisdiction--CPLR 302(A)(3): Tortious Acts
Committed Outside of New York Causing Injury in the State.
New York Practice, Employment Litigation in New York § 3:8, Introductory Statements, The Parties and Jurisdiction/Venue.
New York Practice, Employment Litigation in New York § 3:61, Defamation Under New York Common Law.
New York Practice, Employment Litigation in New York § 3:62, Defamation Per Se Under New York Common
Law.
New York Practice, Employment Litigation in New York § 3:63, Self-Publication Defamation.
New York Practice, Landlord & Tenant Practice in New York § 4:229, Guaranty Clauses, Generally--Recourse
Against Guarantors--Jurisdiction Over “Foreign” Guarantors.
New York Practice, New York Civil Appellate Practice § 12:51, Stage 3: Briefs--New Legal Theories; Issues
Raised for the First Time on Appeal.
New York Practice, New York Family Court Practice § 2:43, Issuance and Service of Process.
New York Practice, New York Law of Domestic Relations § 1:4, Preliminary Considerations--Jurisdiction Over
the Parties and Over the Marriage.
New York Practice, New York Law of Domestic Relations § 8:16, Divorce Actions Initiated in New York-Service Outside the State of New York.
New York Practice, New York Law of Domestic Relations § 8:19, Jurisdiction Over the Defendant.
New York Practice, New York Law of Domestic Relations § 8:20, Jurisdiction Over the Defendant--Long-Arm
Jurisdiction.
New York Products Liability 2d § 8:2, Domestic and Foreign Corporations.
Page 85
New York Products Liability 2d § 8:3, “Doing Business”.
New York Products Liability 2d § 8:4, Tort Without State-Impact Within.
New York Products Liability 2d § 8:5, New York “Transaction”.
New York Products Liability 2d § 8:6, Supplying Goods or Services in New York.
New York Products Liability 2d § 8:7, Foreign Manufacturer.
New York Products Liability 2d App A, Sample Complaints.
New York Products Liability 2d App B, Sample Bills of Particulars.
New York Products Liability 2d § 5:17, Parent Corporations.
Restatement (2d) of Conflicts § 35, Doing Business in State.
Restatement (2d) of Conflicts § 36, Doing an Act in State.
Restatement (2d) of Conflicts § 37, Causing Effects in State by Act Done Elsewhere.
Restatement (2d) of Conflicts § 38, Ownership, Use or Possession of Tangible Thing in State.
Restatement (2d) of Conflicts § 358, Suit Against Foreign Executor or Administrator.
Restatement (2d) of Judgments § 9, Jurisdiction Over Litigants Concerning Other Claims.
Restatement (2d) of Judgments § 26, Exceptions to the General Rule Concerning Splitting.
Restatement (3d) of Foreign Relations § 453, Claims Arising Out of Commercial Activity.
Siegel's New York Practice, 4th § 16, Family Court.
Siegel's New York Practice, 4th § 29, Forum Non Conveniens and Corporations.
Page 86
Siegel's New York Practice, 4th § 53, Defendant's Absence.
Siegel's New York Practice, 4th § 58, Personal Jurisdiction, Introduction.
Siegel's New York Practice, 4th § 68, Immunity from Service.
Siegel's New York Practice, 4th § 73, Service on Rule 318 Agent Under CPLR 308(3).
Siegel's New York Practice, 4th § 75, Court-Ordered Service Under CPLR 308(5).
Siegel's New York Practice, 4th § 76, Service in Matrimonial Actions.
Siegel's New York Practice, 4th § 80, Basis for Jurisdiction; CPLR 301.
Siegel's New York Practice, 4th § 82, The Corporate “Presence” Doctrine.
Siegel's New York Practice, 4th § 84, “Longarm” Jurisdiction, Background.
Siegel's New York Practice, 4th § 85, Longarm Jurisdiction Under CPLR 302, Generally.
Siegel's New York Practice, 4th § 86, “Transacts Any Business” Under CPLR 302(A)(1).
Siegel's New York Practice, 4th § 87, “Tortious Act” Under CPLR 302(A)(2).
Siegel's New York Practice, 4th § 88, Act Without/Injury Within New York Under CPLR 302(A)(3).
Siegel's New York Practice, 4th § 89, Real Property Longarm Cases Under CPLR 302(A)(4).
Siegel's New York Practice, 4th § 90, Longarm Jurisdiction for Support and Other Relief Under CPLR 302(B).
Siegel's New York Practice, 4th § 91, The Restricted Appearance Under CPLR 302(C).
Siegel's New York Practice, 4th § 92, Jurisdiction Versus the Merits.
Siegel's New York Practice, 4th § 94, Overlap of Longarm Bases.
Page 87
Siegel's New York Practice, 4th § 95, Agency as Jurisdictional Basis.
Siegel's New York Practice, 4th § 96, Attorney as Agent Under CPLR 303.
Siegel's New York Practice, 4th § 97, The Nonresident Motorist Statute.
Siegel's New York Practice, 4th § 98, Jurisdiction by Written Agreement.
Siegel's New York Practice, 4th § 100, Service Outside New York Under CPLR 313.
Siegel's New York Practice, 4th § 102, Rem Jurisdiction of Marital Status.
Siegel's New York Practice, 4th § 103, in Rem Jurisdiction Under CPLR 314(2).
Siegel's New York Practice, 4th § 104, Quasi in Rem Jurisdiction.
Siegel's New York Practice, 4th § 106, Sequestration in Matrimonial Actions.
Siegel's New York Practice, 4th § 114, Adding Claims in Various Appearance Situations.
Siegel's New York Practice, 4th § 133, Avoiding Dismissal for Nonjoinder.
Siegel's New York Practice, 4th § 152, The Stakeholder's Jurisdictional Dilemma.
Siegel's New York Practice, 4th § 153, Rem Jurisdiction as Interpleader Basis.
Siegel's New York Practice, 4th § 154, Interpleader in the Federal Courts.
Siegel's New York Practice, 4th § 236, Amendment as of Course.
Siegel's New York Practice, 4th § 257, The Motion to Dismiss, CPLR 3211 Generally.
Siegel's New York Practice, 4th § 266, Lack of Personal Jurisdiction; Paragraph 8.
Siegel's New York Practice, 4th § 273, Single Motion Rule.
Page 88
Siegel's New York Practice, 4th § 379, Triability by Referee.
Siegel's New York Practice, 4th § 530, Scope of Review from Final Judgment.
Siegel's New York Practice, 4th § 591, Court Applications Generally; Form; Venue.
Siegel's New York Practice, 4th § 86A, “Contracts Anywhere” Under CPLR 302(A)(1).
UNITED STATES SUPREME COURT
Jurisdiction, corporations, place of charter, principal place of business, diversity of citizenship, affiliates,
see Lincoln Property Co. v. Roche, 2005, 126 S.Ct. 606, 546 U.S. 81, 163 L.Ed.2d 415, on remand 175
Fed.Appx. 597, 2006 WL 910241.
Jurisdiction over past and present officers and directors of corporation based on statutory presence of property within states, see Shaffer v. Heitner, 1977, 97 S.Ct. 2569, 433 U.S. 186, 53 L.Ed.2d 683.
NOTES OF DECISIONS
I. IN GENERAL 1-90
II. ACTS BY AGENT OR REPRESENTATIVE 91-160
III. TRANSACTION OF BUSINESS 161-330
IV. TORTIOUS ACTS 331-450
I. IN GENERAL
<Subdivision Index>
Accrual under laws of state, matrimonial actions 47
Activities constituting presence within state 37
Agreement executed in state, matrimonial actions 48
Appearance for discovery, appearance in court 41
Appearance in court 39-41
Appearance in court - In general 39
Appearance in court - Appearance for discovery 41
Appearance in court - Change of venue motion 40
Burden of proof, generally 55
Change of venue motion, appearance in court 40
Child custody and visitation, matrimonial actions 51
Choice of law agreements, law governing 11
Claims arising from contacts with state, minimum contacts requirement 31
Collateral estoppel 23
Consent to jurisdiction 20
Construction and application 3
Construction of statute, due process considerations 8
Page 89
Construction with federal constitution 2
Construction with federal law 5
Construction with other laws 4
Construction with other laws, matrimonial actions 46
Contacts of plaintiff, minimum contacts requirement 33
Contractual consent 21
Corporate officers 43
Default judgment 60
Discovery on jurisdiction issue 58
Due process considerations 7-9, 30, 45
Due process considerations - In general 7
Due process considerations - Construction of statute 8
Due process considerations - Matrimonial actions 45
Due process considerations - Minimum contacts requirement 30
Due process considerations - Particular cases 9
Elements to establish jurisdiction, generally 27
Estoppel creating jurisdiction 20
Federal actions, law governing 12
Foreign corporations, nondomiciliaries 19
Former residents, nondomiciliaries 18
Forum selection agreements, law governing 11
Hearing 59
Implied consent 22
Insufficient contacts, minimum contacts requirement 35
Insurance policies, presence within state 38
Jurisdiction by consent or estoppel 20
Jurisdictional discovery 58
Law governing 10-12
Law governing - In general 10
Law governing - Choice of law agreements 11
Law governing - Federal actions 12
Matrimonial actions 44-51
Matrimonial actions - In general 44
Matrimonial actions - Accrual under laws of state 47
Matrimonial actions - Agreement executed in state 48
Matrimonial actions - Child custody and visitation 51
Matrimonial actions - Construction with other laws 46
Matrimonial actions - Due process considerations 45
Matrimonial actions - Matrimonial domicile 50
Matrimonial actions - Residence 49
Matrimonial domicile, matrimonial actions 50
Minimum contacts requirement 29-35.5
Minimum contacts requirement - In general 29
Minimum contacts requirement - Claims arising from contacts with state 31
Minimum contacts requirement - Contacts of plaintiff 33
Page 90
Minimum contacts requirement - Due process considerations 30
Minimum contacts requirement - Insufficient contacts 35
Minimum contacts requirement - Single act in state 32
Minimum contacts requirement - Situs of injury 35.5
Minimum contacts requirement - Sufficiency of particular contacts with state 34
Motion to dismiss cause of action 56
Nondomiciliaries 17-19
Nondomiciliaries - In general 17
Nondomiciliaries - Foreign corporations 19
Nondomiciliaries - Former residents 18
Particular cases, due process considerations 9
Paternity proceedings 52
Pleadings 53
Postponement 61
Presence within state 36-38
Presence within state - In general 36
Presence within state - Activities constituting presence within state 37
Presence within state - Insurance policies 38
Principal and agent 42
Public interest 14
Purpose of section 6
Purposeful activity in state 28
Quasi in rem jurisdiction 25
Raising defense of lack of jurisdiction 54
Real property, generally 26
Res judicata 61.3
Residence, matrimonial actions 49
Retroactive application 16
Review 62
Service of process 57
Single act in state, minimum contacts requirement 32
Situs of injury, minimum contracts requirement 35.5
Sovereign immunity, generally 13
Sufficiency of particular contacts with state, minimum contacts requirement 34
Time of determination of jurisdiction 15
Validity 1
Waiver 24
Waiver 61.5
1. Validity
This section extending long-arm personal jurisdiction to matrimonial actions, as applied in action brought by
wife against husband who claimed that he had become resident of Connecticut, was not unconstitutional. Ger4
sten v. Gersten (1 Dept. 1978) 61 A.D.2d 745, 401 N.Y.S.2d 806. Divorce
Page 91
This section dealing with personal jurisdiction by acts of nondomiciliary and granting jurisdiction over nondomiciliary based upon his commission of tortious act within state, comes well within constitutional due process
limitations. Singer v. Walker (1 Dept. 1964) 21 A.D.2d 285, 250 N.Y.S.2d 216, affirmed 15 N.Y.2d 443, 261
N.Y.S.2d 8, 209 N.E.2d 68, certiorari denied 86 S.Ct. 241, 382 U.S. 905, 15 L.Ed.2d 158. Constitutional Law
3964; Courts
13.5(4)
This section authorizing assumption of personal jurisdiction over nondomiciliary on basis of his acts in jurisdiction does not offend due process requirements of the United States Constitution. Strasser, Spiegelberg, Fried and
Frank v. Schlesinger, 1967, 53 Misc.2d 78, 278 N.Y.S.2d 427, affirmed 28 A.D.2d 828, 282 N.Y.S.2d 650. See,
also, Newman v. Charles S. Nathan, Inc., 1965, 46 Misc.2d 407, 259 N.Y.S.2d 637, reversed on other grounds
3964; Courts
12(2.15)
24 A.D.2d 867, 264 N.Y.S.2d 382. Constitutional Law
This section, providing for jurisdiction over nondomiciliaries predicated upon their acts in the jurisdiction, is
constitutional. Totero v. World Telegram Corp., 1963, 41 Misc.2d 594, 245 N.Y.S.2d 870. Courts
13.3(3)
2. Construction with federal constitution
New York's long-arm jurisdiction does not extend to full extent permitted by federal Constitution. Best Cellars
Inc. v. Grape Finds at Dupont, Inc., 2000, 90 F.Supp.2d 431, 54 U.S.P.Q.2d 1594. Courts
13.2
New York long-arm statute does not extend court's jurisdiction to full extent permitted by Constitution. Levisohn, Lerner, Berger & Langsam v. Medical Taping Systems, Inc., 1998, 10 F.Supp.2d 334. Courts
13.2
New York's long-arm statute does not extend jurisdiction to furthest extent of due process permitted by Constitution. Local 875 I.B.T. Pension Fund v. Pollack, 1998, 992 F.Supp. 545. Courts
13.2
New York long-arm statute does not provide for in personam jurisdiction in every case in which due process
would permit it. Cortlandt Racquet Club, Inc. v. Oy Saunatec, Ltd., 1997, 978 F.Supp. 520. Courts
13.2
New York long-arm statute does not extend jurisdiction as far as may be constitutionally permitted. Interface
Biomedical Laboratories Corp. v. Axiom Medical, Inc., 1985, 600 F.Supp. 731, 225 U.S.P.Q. 146. Federal
Courts
76.1
This section is not intended to permit maximum exercise of jurisdiction that United States Constitution would
permit. Fontanetta v. American Bd. of Internal Medicine, 1969, 303 F.Supp. 427, affirmed 421 F.2d 355. Federal Courts
76.1
3. Construction and application
Personal jurisdiction over a defendant in a diversity action in the United States District Court for the Western
District of New York is determined by reference to the relevant jurisdictional statutes of the State of New York.
Page 92
Hubbard v. Kelley, 2009, 752 F.Supp.2d 311. Federal Courts
76.1; Federal Courts
417
New York's long arm statute should be broadly construed, i.e., to the limits of due process. Ulster Scientific, Inc.
v. Guest Elchrom Scientific AG, 2001, 181 F.Supp.2d 95.
Precedents under New York's long arm statute are of limited value because each decision depends heavily upon
the facts of each particular case and the evaluation of jurisdiction should be based upon the totality of the circumstances surrounding the transaction. Cooper, Robertson & Partners, LLP v. Vail, 2001, 143 F.Supp.2d 367.
76.1
Federal Courts
Questions of whether or not a foreign corporation is subject to service of process in New York, and whether federal district court in New York has jurisdiction over the foreign corporation, are to be determined by this section.
Arcata Graphics Corp. v. Murrays Jewelers & Distributors, Inc., 1974, 384 F.Supp. 469. Federal Courts
414
Where a statute distinguishes between tort and contract theories and substantial consequences flow from characterization of a case as one or the other, the courts have no right to treat the terms interchangeably. Stanat Mfg.
Co. v. Imperial Metal Finishing Co., 1971, 325 F.Supp. 794. See, also, Gelfand v. Tanner Motor Tours, Limited,
C.A.N.Y.1964, 339 F.2d 317. Action
27(1)
This section rests not on any theory of implied consent on part of nonresident defendant to submit to state's jurisdiction if he commits acts therein but rather on state's inherent power to exercise jurisdiction over nonresident
defendant who has requisite minimal contacts with it. Longines-Wittnauer Watch Co. v. Barnes & Reinecke,
Inc., 1965, 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68, certiorari denied 86 S.Ct. 241, 382 U.S. 905, 15
L.Ed.2d 158.
This section governing personal jurisdiction of New York courts by acts of nondomiciliaries must be interpreted
reasonably and according to its plain language. Nexsen v. Ira Haupt & Co., 1964, 44 Misc.2d 629, 254 N.Y.S.2d
637. Courts
13.2
This section relating to personal jurisdiction of New York court over nondomiciliaries does not require such
contacts within state as were necessitated under former statutes. Lewis v. American Archives Ass'n, 1964, 43
Misc.2d 721, 252 N.Y.S.2d 217. Courts
13.3(2)
This section, the “single-act” statute, providing for jurisdiction of nondomiciliary defendants who have committed acts in state is not rested upon or confined to theory of consent to submit to jurisdiction where transaction
occurred but upon conditions stated therein as necessary adjustment to developments in interstate and international trade and commerce and growing complexity of social scene and technological expansion. Totero v.
World Telegram Corp., 1963, 41 Misc.2d 594, 245 N.Y.S.2d 870. Courts
13.3(10)
Page 93
This section is remedial and neither enlarges nor impairs defendant's substantive rights or obligations under a
contract; the section does nothing more than to provide plaintiff with a forum to enforce whatever substantive
rights he may have against defendant. Steele v. De Leeuw, 1963, 40 Misc.2d 807, 244 N.Y.S.2d 97. See, also,
Millard v. Binkley Co., 1967, 28 A.D.2d 620, 280 N.Y.S.2d 21; Saratoga Harness Racing Ass'n, Inc. v. Moss,
1966, 26 A.D.2d 486, 275 N.Y.S.2d 888, affirmed 20 N.Y.2d 733, 283 N.Y.S.2d 55, 229 N.E.2d 620.
4. Construction with other laws
Holding sustaining jurisdiction over foreign manufacturer under “doing business” test of section 301 and Rules
provision governing jurisdiction over persons, property or status a fortiori justified jurisdiction under identical
language of this section governing personal jurisdiction by acts of nondomiciliaries. Andrulonis v. U. S., 1981,
79
526 F.Supp. 183. Federal Courts
Business Corporation Law, § 1301 governing authorization of foreign corporations did not preclude personal
jurisdiction over corporation under this section authorizing exercise of personal jurisdiction over any nondomiciliary which through an agent commits tortious act within New York; rather, whether the corporation was
“doing business” in New York was not the decisive consideration under this section with respect to whether federal district court had personal jurisdiction in diversity action. Gasarch v. Ormand Industries, Inc., 1972, 346
F.Supp. 550. Federal Courts
81
Trial court lacked personal jurisdiction over Brazilian defendants, warranting dismissal based on invalid service
of process; service did not comply with principles of comity as it did not satisfy Brazilian law requirement that
service of process by foreign nations be made pursuant to a letter rogatory or a letter of request transmitted
through diplomatic channels. Morgenthau v. Avion Resources Ltd. (1 Dept. 2007) 49 A.D.3d 50, 849 N.Y.S.2d
223, affirmed as modified 11 N.Y.3d 383, 869 N.Y.S.2d 886, 898 N.E.2d 929. Pretrial Procedure
560
Unlike suit against nondomiciliary brought pursuant to statute addressing jurisdiction over persons, property or
status, it is not necessary under statute authorizing “long arm” jurisdiction over nondomiciliary as to particular
cause of action based on existence of minimum contacts with forum state that relate to cause of action to show
that defendant was “doing business” in state at time action was commenced. Johnson v. Ward (1 Dept. 2004) 6
A.D.3d 286, 775 N.Y.S.2d 297, certified question answered and reversed 4 N.Y.3d 516, 797 N.Y.S.2d 33, 829
N.E.2d 1201. Courts
13.3(11)
Use of expression “transacts business” in both long-arm jurisdictional statute and venue provision of New York
City Civil Court Act did not mean that venue for corporate defendant under the latter provision was conditioned
upon the same predicates necessary to justify jurisdiction; only long-arm statute contained language requiring
that the cause of action arise out that business. Mingmen Acupuncture Services, P.C. v. American Transit Ins.
Co., 1999, 183 Misc.2d 270, 702 N.Y.S.2d 511. Courts
189(3)
Summary affirmance of district court's dismissal, that had been based on two grounds, lack of personal jurisdiction and improper venue, was not warranted, despite plaintiff's failure to appeal court's decision on improper
venue, since Court of Appeals could have granted relief to plaintiff on venue if it had found that New York was
Page 94
situs of injury. M & M Packaging, Inc. v. Kole, C.A.2 (N.Y.)2008, 298 Fed.Appx. 39, 2008 WL 4726301, Unre927
ported. Federal Courts
5. Construction with federal law
District court had jurisdiction to assess whether Dutch company which purchased soybean oil was third-party
beneficiary of arbitration clause contained in charter party between seller and Russian shipping company, which
was owned by former Soviet Union, for purposes of determining whether subject matter jurisdiction existed under the Foreign Sovereign Immunities Act (FSIA) in action by buyer against shipping company to recover for
cargo damages; district court was required to weigh contractual arguments before it could determine that no arbitration agreement existed, and hence that it lacked jurisdiction. Cargill Intern. S.A. v. M/T Pavel Dybenko,
10.34; International Law
13
C.A.2 (N.Y.)1993, 991 F.2d 1012. International Law
Judicial interpretation of the Sherman Act, 15 U.S.C.A. § 1 et seq., that rendition of professional services constitutes “commerce” is not necessarily binding or even significant in a case involving provision of this section authorizing assertion of personal jurisdiction over a nonresident who commits a tortious act without the state causing injury within the state provided he derives substantial revenue from “commerce” since the two statutes were
intended to have wholly different functions. Markham v. Anderson, C.A.2 (N.Y.)1976, 531 F.2d 634. Courts
89
Defendants, foreign corporations not authorized to conduct business in New York, were not “found” in New
York within meaning of ERISA's nationwide service of process provision, and therefore plaintiffs' service of
process upon New York Secretary of State was ineffective in ERISA action and default judgments entered
against corporations were void, as corporations did not conduct any business in New York and, therefore, had
insufficient contacts with New York to satisfy statutory and constitutional requirements for service of process.
I.L.G.W.U. Nat. Retirement Fund v. Meredith Grey, Inc., 1997, 986 F.Supp. 816. Constitutional Law
3965(3); Federal Civil Procedure
2394
28 U.S.C.A. § 1400 providing that civil actions, suits or proceedings arising under any act of Congress relating
to copyrights may be instituted in district in which defendant or his agent resides or may be found does not require a stronger finding of presence than is usually required in order to obtain jurisdiction over a corporate defendant and standard is same as when jurisdiction is determined with reference to this section and its standard of
“transacting business.” Boltons Trading Corp. v. Killiam, 1970, 320 F.Supp. 1182, 168 U.S.P.Q. 424. Copyrights And Intellectual Property
79
Chapter 11 debtor, which brought adversary proceeding claiming breach of bylaws of Argentine cement corporation, in which its former subsidiary owed 50% of stock, and tortious inducement to breach bylaws, failed to establish that any of bidders at sale of subsidiary transacted business in New York, or that there was direct injury
to property within New York, and thus, bankruptcy court in New York did not have personal jurisdiction over
defendants under New York law; only business transaction was bidders' participation in sale of stock, alleged interference took place in Argentina, debtor was not even party to bylaws, and debtor's headquarters were in Connecticut. In re New York Trap Rock Corp., 1993, 155 B.R. 871, affirmed 160 B.R. 876, affirmed in part , va-
Page 95
cated in part on other grounds 42 F.3d 747. Bankruptcy
2081
Because no specific federal statute governed personal jurisdiction in copyright or Lanham Act matters, New
York's long-arm statutes applied to performance artist's claims that publisher infringed her copyright and violated her Lanham Act rights. Stewart v. Vista Point Verlag, C.A.2 (N.Y.)2001, 20 Fed.Appx. 91, 2001 WL
417
1220529, Unreported. Federal Courts
State's personal jurisdiction rules applied to determine whether personal jurisdiction existed over due process
claim asserted against employees of Equal Employment Opportunity Commission (EEOC), sued in their individual capacities, when plaintiff did not sue employees pursuant to any statute providing for nationwide service
of process. Caraveo v. U.S. E.E.O.C., C.A.2 (N.Y.)2004, 96 Fed.Appx. 738, 2004 WL 608590, Unreported. Fed417
eral Courts
6. Purpose of section
New York's long-arm statute seeks merely to obtain personal jurisdiction over non-domiciliaries where the cause
of action arises out of activity conducted with the state. Energy Brands Inc. v. Spiritual Brands, Inc., 2008, 571
F.Supp.2d 458. Courts
13.3(8)
Purpose of this section, which was designed to permit plaintiff injured by out-of-state defendants to sue such
nondomiciliaries within state if defendants transacted business or engaged in tortious activity causing injury
within state, is remedial. Columbia Pictures Industries, Inc. v. Schneider, 1977, 435 F.Supp. 742, affirmed 573
F.2d 1288. Federal Courts
76.1
Requirement for exercise of personal jurisdiction over nonresident defendant under long-arm statute that defendant must have derived substantial revenue from interstate or international commerce is designed to narrow the
long-arm reach to preclude the exercise of jurisdiction over nondomiciliaries who might cause direct, foreseeable injury within State, but whose business operations are of a local character. LaMarca v. Pak-Mor Mfg. Co.,
2000, 95 N.Y.2d 210, 713 N.Y.S.2d 304, 735 N.E.2d 883. Courts
13.3(10); Courts
13.3(11)
Purpose of this section is to extend the basis of jurisdiction over nonresidents beyond the traditional physical
presence requirements. Amigo Foods Corp. v. Marine Midland Bank-New York, 1976, 39 N.Y.2d 391, 384
N.Y.S.2d 124, 348 N.E.2d 581. Courts
13.2
Purpose of this section is to extend jurisdiction of state courts to nonresidents who have engaged in some purposeful activity in state in connection with matter in suit. Hi Fashion Wigs, Inc. v. Peter Hammond Advertising,
Inc., 1973, 32 N.Y.2d 583, 347 N.Y.S.2d 47, 300 N.E.2d 421. Courts
13.3(8)
It is the purpose of this section to extend jurisdiction of New York courts to nonresidents who have engaged in
some purposeful activity in New York in connection with matter in suit and a single transaction in New York
Page 96
may be sufficient to warrant exercise of in personam jurisdiction over nonresident. Ferrante Equipment Co. v.
13.3(8); Courts
Lasker-Goldman Corp., 1970, 26 N.Y.2d 280, 309 N.Y.S.2d 913, 258 N.E.2d 202. Courts
13.3(10)
In enactment of this section Legislature has not purported to extend New York's jurisdiction to the utmost constitutional limit. A. Millner Co. v. Noudar, Lda. (1 Dept. 1966) 24 A.D.2d 326, 266 N.Y.S.2d 289. Courts
13.2
The legislative intent in enacting this section was to confer jurisdiction over nonresident defendants whenever
the requirements are satisfied. Downes v. Cirelli, 1967, 52 Misc.2d 637, 276 N.Y.S.2d 542.
Purpose of enactment of this section was to confer personal jurisdiction whenever business is transacted. Woodhaven Motor Sales, Inc. v. F & E Granite Memorials, Inc., 1965, 46 Misc.2d 266, 261 N.Y.S.2d 312. Courts
13.3(11)
This section relating to personal jurisdiction by acts of nondomiciliaries was designed to exploit the fullest jurisdictional potential permissible under federal Constitution. Schroeder v. Loomis, 1965, 46 Misc.2d 184, 259
N.Y.S.2d 42. Courts
13.2
The intent of this section and § 301 is to authorize service in all types of actions upon nonresident administrator
or executor of a deceased person who would be subject to in personam jurisdiction were he alive. Johnson v.
Jay, 1965, 45 Misc.2d 101, 255 N.Y.S.2d 705. Executors And Administrators
525
This section is designed to take advantage of state's constitutional power to subject nonresidents to personal jurisdiction when they commit acts within the state. Iroquois Gas Corp. v. Collins, 1964, 42 Misc.2d 632, 248
N.Y.S.2d 494, affirmed 23 A.D.2d 823, 258 N.Y.S.2d 376. See, also, Gelfand v. Tanner Moter Tours, Limited,
C.A.N.Y.1964, 339 F.2d 317; Franklin Nat. Bank v. Krakow, D.C.N.Y.1969, 295 F.Supp. 910; Steele v. De
Leeuw, 1963, 40 Misc.2d 807, 244 N.Y.S.2d 97.
This section was modeled upon Illinois statute and was designed to take advantage of state's constitutional
power to subject nonresidents to personal jurisdiction when they commit acts within state. Lewin v. Bock Laundry Mach. Co., 1964, 42 Misc.2d 599, 249 N.Y.S.2d 49, affirmed 22 A.D.2d 854, 255 N.Y.S.2d 466, affirmed
16 N.Y.2d 1070, 266 N.Y.S.2d 391, 213 N.E.2d 686. Courts
13.2
7. Due process considerations--In general
Exercise of long-arm jurisdiction under New York law must satisfy constitutional due process standards, which
it does when it is based on defendants' minimum contacts with the state and comports with traditional notions of
fair play and substantial justice. Duravest, Inc. v. Viscardi, A.G., 2008, 581 F.Supp.2d 628. Constitutional Law
3964
Page 97
In determining whether assertion of personal jurisdiction over non-domiciliary comports with traditional notions
of fair play and substantial justice, as required to satisfy due process clause of the Fourteenth Amendment, the
court considers whether extending jurisdiction is reasonable under the circumstances of the particular case by
considering: (1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the
forum state in adjudicating the case; (3) the plaintiff's interest in obtaining convenient and effective relief; (4)
the interstate judicial system's interest in obtaining the most efficient resolution of the controversy; and (5) the
shared interest of the states in furthering substantive social policies.. Pearson Education, Inc. v. Shi, 2007, 525
3964
F.Supp.2d 551. Constitutional Law
In order for district court to exercise personal jurisdiction over nondomiciliary defendant, not only did exercise
of jurisdiction have to comport with forum's long-arm statute, but it also had to satisfy due process. Newbro v.
3964
Freed, 2004, 337 F.Supp.2d 428. Constitutional Law
The factors to be considered in making the reasonableness assessment, for purpose of determining whether exercise of personal jurisdiction is proper under the Due Process Clause, are: (1) the burden on the defendant, (2) the
forum state's interest in adjudicating the dispute, (3) the plaintiff's interest in obtaining convenient and effective
relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and
(5) the shared interest of the several states in furthering fundamental substantive social policies. Opticare Acquisition Corp. v. Castillo (2 Dept. 2005) 25 A.D.3d 238, 806 N.Y.S.2d 84. Constitutional Law
3964
Test in deciding whether jurisdiction may be asserted under long-arm statute is not whether New York is the
most convenient forum in which to litigate; rather, question is whether assertion of jurisdiction in New York will
violate defendant's right to due process of law. Alan Lupton Associates, Inc. v. Northeast Plastics, Inc. (4 Dept.
1984) 105 A.D.2d 3, 482 N.Y.S.2d 647. Constitutional Law
3964; Courts
13.3(1)
Due process considerations with respect to acquisition of jurisdiction over nondomiciliaries by virtue of their
acts in state would be more restrictive if there were involved simply dispute of commercial dimensions between
parties to commercial contract than where defendant has introduced into state instrument dangerous to life and
health if defective. Singer v. Walker (1 Dept. 1964) 21 A.D.2d 285, 250 N.Y.S.2d 216, affirmed 15 N.Y.2d 443,
261 N.Y.S.2d 8, 209 N.E.2d 68, certiorari denied 86 S.Ct. 241, 382 U.S. 905, 15 L.Ed.2d 158. Constitutional
Law
3965(4)
With respect to traditional notions of fair play and substantial justice, a court must consider the burden on the
defendant, the interests of the forum state, and the plaintiff's interests in obtaining relief, when conducting an
analysis of whether a court can exercise personal jurisdiction through a long-arm statute; the court must also
weigh in its determination the interstate judicial system's interest in obtaining the most efficient resolution of
controversies, and the shared interest of the several states in furthering fundamental substantive social policies.
Reynolds v. Aircraft Leasing, Inc., 2002, 194 Misc.2d 550, 756 N.Y.S.2d 704. Constitutional Law
3964
8. ---- Construction of statute, due process considerations
Resolution of a motion to dismiss for lack of personal jurisdiction made in New York requires a court to determ-
Page 98
ine if New York law would confer upon its courts the jurisdiction to reach the defendant under the New York
long-arm statute, and if personal jurisdiction is permitted under the long-arm statute, the court must then proceed
to consider whether the exercise of jurisdiction would be consistent with the Due Process Clause of the Fourteenth Amendment. Chloe, Div. of Richemont North America, Inc. v. Queen Bee of Beverly Hills, LLC, 2008,
571 F.Supp.2d 518, supplemented 630 F.Supp.2d 350, vacated 616 F.3d 158, 96 U.S.P.Q.2d 1349, on remand
3964; Federal Courts
417
2011 WL 3678802. Constitutional Law
A foreign defendant meeting the standards of New York's long-arm statute will satisfy the due process standard.
3964; Courts
Energy Brands Inc. v. Spiritual Brands, Inc., 2008, 571 F.Supp.2d 458. Constitutional Law
13.2
New York's long-arm statute providing for specific personal jurisdiction over nonresident defendants does not
extend as far as federal due process permits. Beatie and Osborn LLP v. Patriot Scientific Corp., 2006, 431
13.3(8)
At bottom, limitations upon exercise of personal jurisdiction, as reflected in New York long-arm statute's requirement of purposeful activity, exist to satisfy constitutional requirements of due process. Newbro v. Freed,
2004, 337 F.Supp.2d 428. Constitutional Law
3964; Courts
13.3(4)
Ordinarily, if jurisdiction is proper under New York long-arm statute, due process will also be satisfied, because
long-arm statute does not reach as far as the Constitution permits. Newbro v. Freed, 2004, 337 F.Supp.2d 428.
Constitutional Law
3964; Courts
13.2
New York long-arm statute does not extend to the full limits permitted by the Due Process Clause of the Fourteenth Amendment. Cuccioli v. Jekyll & Hyde Neue Metropol Bremen Theater Produktion GmbH & Co., 2001,
150 F.Supp.2d 566, 59 U.S.P.Q.2d 1771. Courts
13.2
The exercise of jurisdiction under New York's long arm statute will comport with the due process guarantees
only if the defendant purposefully avails itself of the privilege of conducting activities within New York, thus
invoking the benefits and protections of its laws. Unlimited Care, Inc. v. Visiting Nurse Ass'n of Eastern Massachusetts, Inc., 1999, 42 F.Supp.2d 327. Constitutional Law
3964
Ordinarily, if jurisdiction is proper under New York long-arm statute, due process will be satisfied because statute does not reach as far as Constitution permits. Topps Co., Inc. v. Gerrit J. Verburg Co., 1997, 961 F.Supp. 88,
42 U.S.P.Q.2d 1943. Constitutional Law
3964
Due process clause is important element in “long arm” analysis pursuant to this section governing personal jurisdiction by acts of nondomiciliaries. Andrulonis v. U. S., 1981, 526 F.Supp. 183. Federal Courts
76.1
Nature as well as weight of required showing is different under constitutional “minimum contacts” standard than
Page 99
it is under “doing business” test. Saraceno v. S. C. Johnson and Son, Inc., 1980, 492 F.Supp. 979. See, also,
79
Honda Associates, Inc. v. Nozawa Trading, Inc., D.C.N.Y.1974, 374 F.Supp. 886. Federal Courts
Requirements under long-arm statute for personal jurisdiction over nondomiciliary who commits tortious act
outside state that causes injury within state are more stringent than constitutional due process requirements. In13.5(4)
graham v. Carroll, 1997, 90 N.Y.2d 592, 665 N.Y.S.2d 10, 687 N.E.2d 1293. Courts
As this section does not go as far as is constitutionally permissible in establishing jurisdiction over nonresidents,
situation can occur in which necessary contacts to satisfy due process are present, but in personam jurisdiction
will nevertheless not be obtained in New York. Banco Ambrosiano, S.P.A. v. Artoc Bank & Trust Ltd., 1984, 62
3964; Courts
13.3(2)
N.Y.2d 65, 476 N.Y.S.2d 64, 464 N.E.2d 432. Constitutional Law
Under this section granting jurisdiction of nondomiciliary transacting any business within state, less proof is required than was formerly required in order to subject a nonresident defendant to jurisdiction of New York
courts, but due process requires that some reasonable basis be found to give the court jurisdiction. Muraco v.
Ferentino, 1964, 42 Misc.2d 104, 247 N.Y.S.2d 598. Constitutional Law
3965(3); Courts
13.4(3)
9. ---- Particular cases, due process considerations
Even if district court could exercise personal jurisdiction over Italian yacht designer under New York's long-arm
statute, based on allegation that designer received $30,000 for design of yacht, constitutional guarantee of due
process prohibited exercise of personal jurisdiction on that basis; designer did not regularly conduct business or
solicit business in New York, or engage in persistent course of conduct in the state, and designer did not take advantage of benefits provided by New York. Lyons v. Rienzi & Sons, Inc., 2012, 856 F.Supp.2d 501, reconsideration denied 2012 WL 1339442. Constitutional Law
3965(5); Federal Courts
86
Even if Belgian financial services company had minimum contacts with State of New York sufficient to establish personal jurisdiction over it under New York long-arm statute, subjecting company to jurisdiction in State
would violate due process and offend traditional notions of fair play and substantial justice in resident private
equity firm's action against company alleging breach of contract relating to firm's proposed acquisition of controlling interest in company; company had had no prior contact with firm and all of its relevant representatives
had resided in Belgium or Netherlands, relevant documents, records, and other evidence had been located in
Belgium, firm had initiated contact with company and interjected itself into Belgian affairs by seeking to acquire
controlling interest in company, and company could not have foreseen being led to court in New York in connection with proposed transaction in Belgium that expressly provided it would be governed by Belgian law.
Aquiline Capital Partners LLC v. FinArch LLC, 2012, 861 F.Supp.2d 378, appeal dismissed. Constitutional Law
86
Exercise of specific personal jurisdiction over Chinese battery manufacturer in New York in products liability
action did not offend due process, where manufacturer had agency agreement with sales representative that solicited business within New York market and actually sold lithium-ion batteries to at least one New York customer, and manufacturer specially manufactured hundreds of thousands of allegedly defective batteries that were
Page 100
sold to national company based in Oregon, with expectation that they would be distributed on nationwide basis.
UTC Fire & Sec. Americas Corp., Inc. v. NCS Power, Inc., 2012, 844 F.Supp.2d 366. Constitutional Law
86
Exercise of personal jurisdiction over operator of social networking website within New York in record companies' copyright infringement action was not unreasonable, and thus did not violate due process; litigation in New
York would not amount to a violation of operator's constitutional rights as it communicated with New York
companies in the regular course of business and was represented by a national law firm with offices in New
York, forum was home to numerous record companies forced to seek court intervention to deter online copyright
infringement and thus had an interest in adjudication of the issues, companies' interest in convenient relief was
served by litigating in forum because many of them had New York as their principal place of business, interstate
judicial system's interest in efficient resolution of this dispute would not be served by dismissing the complaint
against operator but not against co-defendant, and resolution of the instant dispute would not conflict with fundamental substantive social policies of another state because companies alleged violations of federal copyright
law and New York common law. Capitol Records, LLC v. VideoEgg, Inc., 2009, 611 F.Supp.2d 349, 90
3965(1); Copyrights And Intellectual Property
79
U.S.P.Q.2d 1720. Constitutional Law
Assertion of personal jurisdiction over out-of-state defendant corporation by federal district court in New York
under New York long-arm statute in trademark infringement action did not violate due process, where corporation advertised its products through catalog that was distributed nationally on airplanes, substantial air traffic
originated in New York, over 150,000 copies of catalog containing advertisement foreseeably had been distributed to airline locations in State for placement on flights originating from State, and corporation made sale into
State to paralegal who worked for plaintiff's counsel. Cartier v. Seah LLC, 2009, 598 F.Supp.2d 422. Constitutional Law
3965(4); Trademarks
1558
Subjecting former chief executive officer (CEO) for acquired corporation, in his individual capacity, to personal
jurisdiction in New York in action arising from acquisition, based upon single letter that he signed in his official
capacity, while CEO, and sent out generally to all of corporation's shareholders, including those who happened
to live in New York, even though former CEO had had no other personal contacts with New York in decades,
did not comport with traditional notions of fair play and substantial justice, and therefore exercise of personal
jurisdiction did not satisfy due process requirements. Duravest, Inc. v. Viscardi, A.G., 2008, 581 F.Supp.2d 628.
Constitutional Law
76.20
Due process would have been violated by exercise of specific personal jurisdiction in New York under New
York long-arm statute over non-domiciliary competitor who made products available for sale to consumers
worldwide but did not make any sales of allegedly infringing product to New York residents through its interactive Internet website other than sale arranged by counsel for trademark owner, although competitor's website had
permitted users to view allegedly infringing products and place orders for such products. Chloe, Div. of Richemont North America, Inc. v. Queen Bee of Beverly Hills, LLC, 2008, 571 F.Supp.2d 518, supplemented 630
F.Supp.2d 350, vacated 616 F.3d 158, 96 U.S.P.Q.2d 1349, on remand 2011 WL 3678802. Constitutional Law
3965(4); Trademarks
1560
Page 101
In suit arising out of a series of international shipping frauds, exercise of personal jurisdiction under New York's
long-arm statute over Kuwaiti defendant, who was a principal of New York shipper under the terms of the bill of
lading contracts with New York shipping company, comported with constitutional guarantees of Due Process;
contacts showed that defendant, through his agents in New York, purposefully availed himself of New York's
laws, and any burden on defendant to litigate in New York was far out-weighed by New York's interest in discovering and imposing liability for alleged frauds, which employed New York corporations and contracts to defraud a New York plaintiff. Maersk, Inc. v. Neewra, Inc., 2008, 554 F.Supp.2d 424. Constitutional Law
86
Exercise of personal jurisdiction over Mexican purchaser under New York long-arm statute would not violate
federal due process requirements in supplier's breach of contract action arising from purchaser's failure to make
payment of balance due on its contract; purchaser purposefully availed itself of the privilege of conducting
activities in New York where it proposed to enter into a contract with supplier whereby supplier was to manufacture the goods in New York and receive payment in New York, forwarded an initial payment to supplier's account in New York, and later sent a team to supplier's facilities to inspect and accept the goods. Taylor Devices,
Inc. v. Walbridge Aldinger Co., 2008, 538 F.Supp.2d 560. Constitutional Law
86
Application of New York's long-arm statute to obtain personal jurisdiction in employment discrimination action
over plaintiff's supervisor and acting general counsel comported with due process; burden inherent in forcing
them to defend themselves in New York was mitigated by inevitability of their appearance as witnesses in trial
against employer, New York had significant interest in protecting its residents under local human rights laws,
and plaintiff's interest in obtaining convenient and effective relief was furthered by maintaining her choice of
venue. International Healthcare Exchange, Inc. v. Global Healthcare Exchange, LLC, 2007, 470 F.Supp.2d 345.
Constitutional Law
76.35
Exercise of personal jurisdiction by federal court in New York, over copyright infringement defendant from
California, was reasonable, for purpose of determining whether it comported with due process; burden on defendant of litigating in New York was balanced by burden on plaintiff if it was forced to litigate in California,
and New York had interest in protecting New York resident's property. Excelsior College v. Frye, 2004, 306
F.Supp.2d 226. Constitutional Law
3965(8); Copyrights And Intellectual Property
79
Where Nevada depositary bank had no place of business in New York and was unaffiliated with any New York
bank, and only connection with New York was allegedly improper deposit of New York payor's check into account of payee who had defrauded payor followed by presentment of check to payor's New York bank, due process did not permit New York court's exercise of jurisdiction over bank in payor's action alleging conversion and
violation of federal banking statute. Baptichon v. Nevada State Bank, 2004, 304 F.Supp.2d 451, affirmed 125
Fed.Appx. 374, 2005 WL 846246. Constitutional Law
84
Fair play inquiry on issue of personal jurisdiction permitted district court in New York to exercise jurisdiction
over Texas client in breach of contract action by New York attorney; client did not indicate that litigating in
New York would pose any particular burden, and attorney had significant interest in obtaining convenient and
Page 102
efficient adjudication of his claim against his former client. Kelly v. MD Buyline, Inc., 1998, 2 F.Supp.2d 420.
76.30
Federal Courts
Exercise of personal jurisdiction over Canadian corporation under New York long-arm statute did not violate
due process clause, where corporation guaranteed equipment lease and promised to make payments in New
York. Chase Manhattan Service Corp. v. National Business Systems, Inc., 1991, 766 F.Supp. 203. Constitutional
3965(3); Courts
13.5(12)
Law
Assertion of specific personal jurisdiction over trust, and beneficiary of trust, by New York federal court was
reasonable, comporting with traditional notions of fair play and substantial justice, for purpose of interpleader
action relating to assets held by brokerage firm, over which Securities and Exchange Commission, State of New
Jersey, trust, and beneficiary of trust asserted conflicting claims; trustee and beneficiary lived in New Jersey,
New York brokerage firm was in possession of most of evidence, and court was familiar with facts relating to
dispute. Salomon Smith Barney, Inc. v. McDonnell, 2001, 201 F.R.D. 297, motion granted 2001 WL 1020460.
76.35
Constitutional Law
District court's finding, that performance artist failed to satisfy federal due process standards for exercise of personal jurisdiction over publishers with respect to copyright and Lanham Act claims, would defeat any establishment of personal jurisdiction under New York's long-arm statute that artist could have made. Stewart v. Vista
Point Verlag, C.A.2 (N.Y.)2001, 20 Fed.Appx. 91, 2001 WL 1220529, Unreported. Federal Courts
417
Exercise of personal jurisdiction over California clients who retained a New York attorney to represent one of
the clients in an action brought in an Oregon federal court did not violate due process in attorney's New York action for fees accrued during his representation; clients purposefully availed themselves of New York's legal services market by establishing a continuing attorney-client relationship with attorney. Fischbarg v. Doucet, 2007,
13.5(11)
Even if defendants who accompanied founder of California corporation, which purportedly engaged in missions
to recover humans and human remains at disaster sites, to disaster site in New York three years prior had
“minimum contacts” with New York, prospect of defendants defending themselves in defamation action brought
by founder and corporation in New York did not comport with traditional notions of fair play and substantial
justice, so that exercise of personal jurisdiction over defendants would violate due process; all defendants were
residents of New Mexico, defendants made allegedly defamatory statements in New Mexico three years after
their brief contacts with New York, founder and corporation were not residents of New York, and since defendants were defending allegations of defamation and intentional infliction of emotional distress in federal court in
New Mexico based on same underlying facts, New York action would not have promoted interstate judicial system's shared interests in obtaining most efficient resolution of controversy. Copp v. Ramirez (1 Dept. 2009) 62
A.D.3d 23, 874 N.Y.S.2d 52, leave to appeal denied 12 N.Y.3d 711, 882 N.Y.S.2d 397, 909 N.E.2d 1235. Constitutional Law
3965(1); Courts
13.5(9)
Exercising long-arm jurisdiction over Florida defendant, who was allegedly involved in scheme to defraud instate plaintiff investors, would not be inconsistent with traditional notions of due process, fair play, and substan-
Page 103
tial justice, although defendant had never been physically present in New York; investors alleged that defendant
was manager of shareholder services, and managed entities allegedly used in scheme. Bogal v. Finger (2 Dept.
3965(10); Courts
13.5(12)
2009) 59 A.D.3d 653, 874 N.Y.S.2d 217. Constitutional Law
Exercise of personal jurisdiction over insured in New York would violate due process, and thus insured was not
subject to personal jurisdiction in New York in insurer's action to collect premium, even though broker that procured policy was New York corporation, where insured was New Jersey corporation, all acts regarding execution of insurance policy took place in New Jersey, procuring broker dealt with insured only through its New Jersey broker, and New York broker's representatives met with New Jersey broker's employees in New Jersey.
Markel Ins. Co. v. GFM Const., Inc. (1 Dept. 2006) 35 A.D.3d 151, 827 N.Y.S.2d 10. Constitutional Law
3965(6); Courts
13.5(14)
Exercise of personal jurisdiction over out-of-state aircraft carburator overhauler through New York long-arm
statute comported with due process requirements, in negligence lawsuit brought by aircraft owner after accident,
since overhauler was United States corporation fully familiar with country's legal system, it took advantage of
New York market for its products, New York had strong interest in providing forum for aircraft owner, New
York owner had strong interest in bringing overhauler into New York court, and accident and investigation into
accident occurred in New York. Reynolds v. Aircraft Leasing, Inc., 2002, 194 Misc.2d 550, 756 N.Y.S.2d 704.
Constitutional Law
3965(5); Courts
13.5(8)
Corporate partner who brought diversity action against former partners, stemming from alleged failure to wind
up and liquidate partnership following dissolution, established that court's assertion of personal jurisdiction over
former partners would not have offended due process interests, as required to maintain action in forum state; although former partners may have been inconvenienced by litigating in forum state, law of forum state governed
dispute, and corporate partner was incorporated in forum state. Afloat in France, Inc. v. Bancroft Cruises Ltd.,
2003, 2003 WL 22400213, Unreported. Constitutional Law
76.35
It was not unreasonable for district court sitting in New York to assert, consistent with due process, specific personal jurisdiction over Dutch accounting firm, alleged to have committed securities fraud in connection with
audit of American corporation; firm was very large, with members and offices worldwide, and New York City
was convenient place to manage litigation. Teachers' Retirement System of LA v. A.C.L.N., Ltd., 2003, 2003
WL 21058090, Unreported. Constitutional Law
86
10. Law governing--In general
New York law applied to tort claim of professional negligence against insurance broker, by company in the business of providing on-line news and financial information, arising from broker's alleged failure to notify company
of notice of intent to cancel and cancellation notice; the insurance broker was licensed in New York and maintained its principal place of business in New York, the broker received the notices at its New York office and received phone calls from its credit corporation regarding the missed premium payment at that same office, and,
the company had already left Florida for London by the time that insurance broker's alleged tort had occurred.
GlobalNet Financial.Com, Inc. v. Frank Crystal & Co., Inc., C.A.2 (N.Y.)2006, 449 F.3d 377. Insurance
1091(1)
Page 104
Under New York choice of law rules, New York, rather than California, law applied to excess insurer's claim
against primary insurer for bad faith failure to settle, even though policies were governed by California law,
where New York was where underlying suit was filed, where claim was handled, and where all settlement discussions occurred, including eventual settlement. Schwartz v. Twin City Fire Ins. Co., 2007, 492 F.Supp.2d 308,
1091(15)
affirmed 539 F.3d 135. Insurance
Under New York choice of law rules, California, rather than New York, law governed interpretation of primary
and excess directors' and officers' liability policies, where insured listed its address as being in California,
policies contained endorsements required by California law, but not by law of any other state, and insured had
several hundred employees based in California and less than dozen in New York. Schwartz v. Twin City Fire
1091(4)
Ins. Co., 2007, 492 F.Supp.2d 308, affirmed 539 F.3d 135. Insurance
Under New York choice of law principles, New York had the greatest interest in regulating successor-in-interest
of garbage compactor manufacturer's conduct, and thus controlling law in porter's personal injury action against
successor for injuries sustained while using a broomstick to clear jammed garbage from garbage compactor was
that of New York, notwithstanding that the successor was incorporated and had its principal place of business in
another state, where porter was a New York resident, the accident occurred in New York, the product at issue
was sold to the porter's employer in New York, and the successor continued to do business in New York. Colon
v. Multi-Pak Corp., 2007, 477 F.Supp.2d 620. Corporations And Business Organizations
2641(3); Products
Liability
105
Florida, rather than New York, law governed personal injury action arising from auto accident that occurred in
Florida, when vehicle operated by codefendant (a Florida domiciliary) collided with vehicle operated by defendant (a Florida domiciliary), who had leased his vehicle from Florida-based corporation; significant contacts were
with state of Florida, application of Florida law would comport with reasonable expectations of parties, and
there was nothing in Florida's applicable laws that could be described as offensive to any relevant New York
public policy. Sullivan v. Alamo Rental Corp. (2 Dept. 1996) 228 A.D.2d 430, 643 N.Y.S.2d 222. Automobiles
229.5
Plaintiff may acquire personal jurisdiction over a nondomiciliary, even though a court may be required to apply
the law of a sister state. Alan Lupton Associates, Inc. v. Northeast Plastics, Inc. (4 Dept. 1984) 105 A.D.2d 3,
482 N.Y.S.2d 647. Courts
13.2
New York law applied to determine whether attorney-client privilege applied to documents sought under subpoena duces tecum issued by New York court to New York law firm that represented corporation in merger negotiations, pursuant to commission from Utah court in which shareholder filed breach of fiduciary duty claim
against corporation's officers and directors. Stenovich v. Wachtell, Lipton, Rosen & Katz, 2003, 195 Misc.2d 99,
756 N.Y.S.2d 367. Privileged Communications And Confidentiality
105
Where New York attorneys rendered professional services for client while he was domiciliary of New York, and
after he moved to Florida attorneys obtained New York judgment against him for their services, and jurisdiction
of New York court was based on this section providing for personal jurisdiction of non-domiciliary who has
Page 105
transacted business in New York, and thereafter attorneys brought action in Florida against client on New York
judgment, and Florida trial court entered summary judgment for client, and, thereafter New York Court of Appeals held that this section applies to defendant domiciled in New York at time he transacted business but who is
a non-domiciliary at time of service, Florida District Court of Appeal would apply law as determined by New
York Court of Appeals and would direct that judgment be entered for attorneys. Brown v. Henrich, App. 4 Dist.,
1107
203 So.2d 183 (1967), certiorari discharged 212 So.2d 6. Appeal And Error
11. ---- Choice of law agreements, law governing
A choice of law clause is a significant factor in a personal jurisdiction analysis under New York's long-arm statute because the parties, by so choosing, invoke the benefits and protections of New York law. Sunward Elec25
tronics, Inc. v. McDonald, C.A.2 (N.Y.)2004, 362 F.3d 17, 69 U.S.P.Q.2d 2002. Courts
Contract provision that contract was to be governed and interpreted in accordance with New York law did not
make nondomiciliary corporation amenable to suit in New York. Galgay v. Bulletin Co., Inc., C.A.2 (N.Y.)1974,
504 F.2d 1062. Federal Courts
77.5
Court would enforce forum selection clause in contract for telecommunications services, specifying that “this
Agreement shall be governed by the laws of the State of New York and customer agrees to be subject to the jurisdiction of the courts in Monroe County, New York;” clause was presumed valid, and no showing was made in
opposition to enforcement. Mpower Communications Corp. v. Voipld.com, Inc., 2004, 304 F.Supp.2d 473. Contracts
127(4)
Choice of law clause, although relevant in determining whether nondomiciliary “transacted business” under
New York's long-arm statute, by itself is insufficient to confer jurisdiction over a nondomiciliary defendant.
Benjamin Sheridan Corp. v. Benjamin Air Rifle Co., 1993, 827 F.Supp. 171. Courts
13.3(11)
Licensor of film television rights was subject to jurisdiction in New York in suit arising from licensing agreement, in that it transacted business in New York by entering to the agreement there and selecting New York law
as the law governing the agreement, and in that the claim arose from the agreement, because the principal issue
appeared to turn on indemnity provision in the agreement. Viacom Intern., Inc. v. Melvin Simon Productions,
Inc., 1991, 774 F.Supp. 858. Federal Courts
76.15
Where all preliminary negotiations and execution of note took place in District of Columbia, obligation was to
be performed by mailing payments from District of Columbia to New York, and only connection with New York
was that note provided that it should be governed and construed in accordance with this section, there was no
jurisdictional basis on which the Supreme Court of New York could invoke personal jurisdiction under this section and enter a default judgment against executors of the maker of the note. Franklin Nat. Bank v. Krakow,
D.C.D.C.1969, 295 F.Supp. 910. Federal Courts
76.30
New York choice-of-law clauses are significant contacts to be considered in determining existence of personal
jurisdiction pursuant to New York's long-arm statute. Lancaster v. Zufle, 1996, 165 F.R.D. 38. Courts
Page 106
13.3(10)
Designation of New York as the law governing contract will not alone permit recourse to this section but it is a
76.30
significant contact with the state. Uniroyal, Inc. v. Heller, 1974, 65 F.R.D. 83. Federal Courts
Under New York choice of law rules, California law governed buyer's claims against generator manufacturer for
promissory fraud, intentional interference with contractual relations, intentional interference with economic relations, and negligent interference with economic relations arising from sale of allegedly defective wind turbine
systems, where parties agreed to be governed by California law in warranty agreement, and buyer was located in
206; Fraud
1.5; Torts
202
California. In re Enron Corp., 2007, 367 B.R. 384. Contracts
Grain transaction between a New York corporation that engaged in sales of grain commodities and an Ohio cooperative of grain farmers bore as reasonable a relation to New York as it did to Ohio, and, therefore, under
Ohio statute, cooperative could agree by contract that the law of New York would govern transaction, thereby
voluntarily waiving protection that might have been afforded to it by Ohio statute providing for lien upon all agricultural commodity assets of agricultural commodity handler. In re R.F. Cunningham & Co., Inc., 2006, 355
B.R. 408. Agriculture
14; Contracts
206
Where real estate trust agreement expressly provided that laws of Massachusetts should be controlling, Massachusetts law governed shareholders' derivative action against corporate trustees, its legal counsel, mortgage
broker and real estate advisory firm, even if trust had significant contacts with New York State. Skolnik v. Rose,
1982, 55 N.Y.2d 964, 449 N.Y.S.2d 182, 434 N.E.2d 251. Corporations And Business Organizations
3582
Forum selection clause in lease agreement between shipping company, who was an original party to disputed
lease, and plaintiff lease assignee was enforceable in assignee's action against shipping company requesting New
York jurisdiction, wherein it was principally headquartered, where forum selection clause itself clearly provided
that if the lease was assigned that venue should be the state where the principal headquarters of the assignee was
located, company failed to allege any fraud or overreaching on the part of the assignee, company would not be
denied their day in court, and company could not argue that New York jurisdiction would be so oppressive as to
warrant rendering the provision void in light of its original agreement to place venue in New Jersey. Sterling
Nat. Bank as Assignee of NorVergence, Inc. v. Eastern Shipping Worldwide, Inc. (1 Dept. 2006) 35 A.D.3d 222,
826 N.Y.S.2d 235. Contracts
206
Very point of forum selection clauses, which render the designated forum convenient as a matter of law, is to
avoid litigation over personal jurisdiction, as well as disputes arising over the application of a long-arm statute
and the courts should enforce contractual provisions for choice of law and selection of a forum for litigation.
Sterling Nat. Bank as Assignee of NorVergence, Inc. v. Eastern Shipping Worldwide, Inc. (1 Dept. 2006) 35
A.D.3d 222, 826 N.Y.S.2d 235. Contracts
127(4)
Forum selection clauses, which are prima facie valid, are enforced because they provide certainty and predictability in the resolution of disputes, and are not to be set aside unless a party demonstrates that the enforcement of
Page 107
such would be unreasonable and unjust or that the clause is invalid because of fraud or overreaching, such that a
trial in the contractual forum would be so gravely difficult and inconvenient that the challenging party would,
for all practical purposes, be deprived of his or her day in court. Sterling Nat. Bank as Assignee of NorVergence,
Inc. v. Eastern Shipping Worldwide, Inc. (1 Dept. 2006) 35 A.D.3d 222, 826 N.Y.S.2d 235. Contracts
127(4)
Court would enforce choice of law provisions of employment agreement between financial advisers and financial advisory firm employing them, requiring that breach of contract action be brought under law of Minnesota,
even though challenged deductions from pay, allegedly invalid under New York labor law, would be permitted
under Minnesota law; fact that Minnesota law lacked cap on otherwise legal deductions, available under New
York, did not preclude application of Minnesota law on grounds that enforcement would be offensive to New
York public policy. Boss v. American Exp. Financial Advisors, Inc. (1 Dept. 2005) 15 A.D.3d 306, 791
N.Y.S.2d 12, leave to appeal granted 5 N.Y.3d 702, 800 N.Y.S.2d 373, 833 N.E.2d 708, affirmed 6 N.Y.3d 242,
129(1)
811 N.Y.S.2d 620, 844 N.E.2d 1142. Contracts
New York choice-of-law clause included in settlement agreement was insufficient, absent more, to warrant finding of long-arm jurisdiction on theory that defendants had transacted business in state. Peter Lisec Glastechnische Industrie GmbH v. Lenhardt Maschinenbau GmbH (1 Dept. 1991) 173 A.D.2d 70, 577 N.Y.S.2d 803.
Fact that contract giving rise to cause of action for its breach provided that Massachusetts law should govern enforcement of the contract did not preclude exercise of jurisdiction over Massachusetts manufacturer under the
“transacting business” portion of the New York long-arm statute. Alan Lupton Associates, Inc. v. Northeast
Plastics, Inc. (4 Dept. 1984) 105 A.D.2d 3, 482 N.Y.S.2d 647. Courts
13.5(7)
California state court's stay of proceedings in plaintiff foreign corporation's contract action against defendant
foreign corporation based on choice of forum provision mandating commencement of action in New York state
or federal court did not create subject matter jurisdiction over action in supreme court, which was otherwise
lacking under Business Corporations Law and General Obligations Law. DDR Real Estate Services, Inc. v.
Burnham Pacific Properties, Inc., 2003, 1 Misc.3d 802, 769 N.Y.S.2d 832, affirmed 12 A.D.3d 1182, 784
N.Y.S.2d 430. Contracts
206; Corporations And Business Organizations
3257
New York courts are required to permit parties to maintain action pursuant to contractual agreement which
meets statutory monetary threshold, agrees to jurisdiction, chooses to apply New York law, and chooses New
York courts as forum for litigation. DDR Real Estate Services, Inc. v. Burnham Pacific Properties, Inc., 2003, 1
Misc.3d 802, 769 N.Y.S.2d 832, affirmed 12 A.D.3d 1182, 784 N.Y.S.2d 430. Courts
40.3
12. ---- Federal actions, law governing
New York federal district court lacked personal jurisdiction over individual defendants sued in Bivens action,
where two defendants never lived in, worked in, travelled to or through, or visited state of New York, and third
defendant had only been in state of New York twice, and telephone call allegedly made from federal agency's
office in Dallas to federal agency's office in New York was unconnected to individual defendants. Robinson v.
Page 108
Overseas Military Sales Corp., C.A.2 (N.Y.)1994, 21 F.3d 502. Federal Courts
76.35
To establish that federal court has personal jurisdiction over a defendant under New York law, if, but only if,
jurisdiction is found under New York's long-arm statute, the court must then determine whether asserting jurisdiction under that statute would be compatible with requirements of due process. Royalty Network Inc. v.
3964; Federal Courts
76.1; Federal
Dishant.com, LLC, 2009, 638 F.Supp.2d 410. Constitutional Law
Courts
417
Texas law governed question of whether the District Court for the Southern District of New York would have
personal jurisdiction over defendant, where action was originally filed in Eastern District of Texas before being
transferred to Southern District of New York. In re Ski Train Fire in Kaprun, Austria on November 11, 2000,
145
2004, 343 F.Supp.2d 208. Federal Courts
New York law governs the issue of personal jurisdiction in a diversity action in a New York federal court. Ulster
Scientific, Inc. v. Guest Elchrom Scientific AG, 2001, 181 F.Supp.2d 95.
Interpretations of subd. (a) of this section by New York Court of Appeals are binding as final authority on Federal District Court. Harry Winston, Inc. v. Waldfogel, 1968, 292 F.Supp. 473. Federal Courts
76.1
New York law determines whether a federal court sitting in New York has jurisdiction over nondomiciliaries
where federal jurisdiction is founded solely on diversity. Aluminal Industries, Inc. v. Newtown Commercial Associates, 1980, 89 F.R.D. 326. Federal Courts
417
13. Sovereign immunity, generally
When an action concerns a wholly commercial transaction centered in New York, and it is one of which the New
York courts would otherwise properly have jurisdiction, such courts are not precluded from the exercise of that
jurisdiction by an assertion of governmental immunity as a matter of comity. Deutsche Bank Securities, Inc. v.
Montana Bd. of Investments (1 Dept. 2005) 21 A.D.3d 90, 797 N.Y.S.2d 439, affirmed 7 N.Y.3d 65, 818
N.Y.S.2d 164, 850 N.E.2d 1140, certiorari denied 127 S.Ct. 832, 549 U.S. 1095, 166 L.Ed.2d 665. States
191.9(1)
Montana investment board was not immune from contract action brought against it in New York on grounds of
either sovereign immunity or comity, given that action concerned wholly commercial transaction centered in
New York and was one over which New York courts properly had jurisdiction. Deutsche Bank Securities, Inc. v.
Montana Bd. of Investments (1 Dept. 2005) 21 A.D.3d 90, 797 N.Y.S.2d 439, affirmed 7 N.Y.3d 65, 818
N.Y.S.2d 164, 850 N.E.2d 1140, certiorari denied 127 S.Ct. 832, 549 U.S. 1095, 166 L.Ed.2d 665. Courts
511; States
191.9(1)
14. Public interest
Page 109
District court's assertion of personal jurisdiction over out-of-state gun dealers, sued by city alleging public nuisance and negligence in connection with retail practices that placed large amount of guns in stream of commerce
broad enough to include city, pursuant to New York long-arm statute, comported with due process; New York
had interest in safety of its residents from handgun violence as well as in regulating illegal flow of handguns into its territory, and expressed public policy interest by enacting gun control laws to protect its citizens from gunrelated crimes. City of New York v. A-1 Jewelry & Pawn, Inc., 2007, 501 F.Supp.2d 369, reconsideration
81
denied 2007 WL 4557311. Constitutional Law
Public interest in efficiently allocating scarce judicial resources supported not dismissing, for lack of personal
jurisdiction, breach of contract action by New York attorney against his Texas former client; inevitable delays
and duplication of efforts would be entailed in requiring attorney to refile in Texas. Kelly v. MD Buyline, Inc.,
76.30
In securities firm’s contract action against Montana Board of Investments (MBOI) alleging failure to make
promised bond sale, New York courts were not precluded as matter of comity from exercising jurisdiction over
Board, which had initiated transactions in question via telephone call to firm’s New York office and which had
engaged in numerous previous transactions with firm, even though State of Montana’s statutory waiver of sovereign immunity for breach of contract claims specified suit in courts of that state; New York’s compelling interest
in protecting its residents as well as its preeminence as commercial and financial capital outweighed Montana’s
interest in limiting venue. Deutsche Bank Securities, Inc. v. Montana Bd. of Investments, 2006, 7 N.Y.3d 65,
818 N.Y.S.2d 164, 850 N.E.2d 1140, certiorari denied 127 S.Ct. 832, 549 U.S. 1095, 166 L.Ed.2d 665. Courts
511
New York, as a state with a high concentration of media outlets which receive materials from all over the country, had an interest in asserting personal jurisdiction over Florida advertising and media-buying firm which
placed advertising on network television broadcasts on behalf of its clients in action brought by New York television network to recover costs of unpaid advertising, for purposes of “transacting business” section of New
York's long-arm statute. Courtroom Television Network v. Focus Media, Inc. (1 Dept. 1999) 264 A.D.2d 351,
13.5(3)
15. Time of determination of jurisdiction
Under New York long arm statute, existence of jurisdiction is determined as of time of service of summons and
complaint, and not when cause of action arose. United Computer Capital Corp. v. Secure Products, L.P., 2002,
218 F.Supp.2d 273. Courts
39
16. Retroactive application
Due process is not violated by New York decisional law which determined that this section providing for personal jurisdiction by acts of nondomiciliaries has retroactive effect to extent of embracing suits instituted after
its effective date but based on previously accrued causes of action with the exception where nondomiciliary acted in justifiable reliance on prior law. Agrashell, Inc. v. Bernard Sirotta Co., C.A.2 (N.Y.)1965, 344 F.2d 583.
Page 110
This section permitting personal jurisdiction over nondomiciliaries on basis of single act committed in state is
procedural rather than substantive and may be applied retroactively. Gardner v. U. S., 1965, 246 F.Supp. 1014.
76.1
Federal Courts
Absent any contrary indication, Legislature intended statutory changes in form of remedies to be applicable to
proceedings thereafter instituted for redress of wrongs already done. Longines-Wittnauer Watch Co. v. Barnes &
Reinecke, Inc., 1965, 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68, certiorari denied 86 S.Ct. 241, 382 U.S.
1562
905, 15 L.Ed.2d 158. Statutes
This section providing for personal jurisdiction by acts of nondomiciliaries does not apply to actions instituted
prior to its effective date and does not operate, by relation back, to validate an attempted service of process
which was jurisdictionally defective when made, because, in such a case, it is not a “further proceeding” within
meaning of § 10003 making this chapter apply to further proceedings in pending action. Simonson v. Interna13.2
tional Bank, 1964, 14 N.Y.2d 281, 251 N.Y.S.2d 433, 200 N.E.2d 427. Courts
Amendment by L.1966, c. 590, concerning personal jurisdiction over nondomiciliaries applied to action commenced after effective date of the amendment against foreign corporations and their eastern seaboard automobile
distributor for destruction by fire of buyer's automobile before effective date of the amendment because of allegedly defective manufacture and service, in absence of showing that the acts serving as predicate for jurisdiction had been carried out in justifiable reliance on the prior law. Gillmore v. J. S. Inskip, Inc., 1967, 54 Misc.2d
218, 282 N.Y.S.2d 127. Courts
13.5(8)
Retroactive application of this section violated no constitutional rights of defendant foreign manufacturer.
Buckley v. Redi-Bolt, Inc., 1966, 49 Misc.2d 864, 268 N.Y.S.2d 653. Courts
13.5(7)
This section does not have retroactive effect to prior actions jurisdictionally defective for improper service. Vernon v. Rock-Ledge House, Inc., 1966, 49 Misc.2d 98, 266 N.Y.S.2d 556. Process
49
This section regarding personal jurisdiction over nondomiciliaries is remedial and applies to actions commenced
after its effective date for redress of torts already done. Rietsch v. Societe Anonyme Des Automobiles Peugeot,
1965, 45 Misc.2d 274, 256 N.Y.S.2d 772. Courts
13.2
Since this section granting in personam jurisdiction when cause of action arises out of fact of ownership, use or
possession of New York realty does not in any way alter substantive rights of parties and merely creates an additional forum in which parties may have their rights adjudicated, it is applied retroactively. Tebedo v. Nye, 1965,
45 Misc.2d 222, 256 N.Y.S.2d 235. Courts
13.5(2)
This section permitting state court to exercise personal jurisdiction over nondomiciliaries operates retroactively.
Patrick Ellam, Inc. v. Nieves, 1963, 41 Misc.2d 186, 245 N.Y.S.2d 545. See, also, Perlmutter v. Standard Roofing and Tinsmith Supply Co., 1964, 43 Misc.2d 885, 252 N.Y.S.2d 583; Muraco v. Ferentino, 1964, 42 Misc.2d
104, 247 N.Y.S.2d 598. Courts
13.2
Page 111
17. Nondomiciliaries--In general
Under this section, by either its business clause or tort clause, power to subject nondomiciliaries to in personam
jurisdiction rests upon purposeful acts or conduct within state by defendant or his agent which give rise to cause
of action sufficient to satisfy minimal contact test. Oil and Gas Ventures-First 1958 Fund, Limited v. Kung,
76.5
1966, 250 F.Supp. 744. Federal Courts
In enthusiasm of court to implement reach of this section dealing with personal jurisdiction over nondomiciliaries which have done certain acts in the state, courts should not forget that nondomiciliary defendants should be
subjected to suit where they are normally found, that is, at their preeminent headquarters, or where they conduct
substantial business activities, and only in rare cases should they be compelled to answer suit in jurisdiction with
which they have barest of contact. McKee Elec. Co. v. Rauland-Borg Corp., 1967, 20 N.Y.2d 377, 283 N.Y.S.2d
13.3(3); Courts
13.3(11)
34, 229 N.E.2d 604. Courts
California residents were not subject to personal jurisdiction in New York in action seeking specific performance of alleged prior oral agreement, even though New York cooperative apartment was main focus of dispute,
and defendants exchanged telephone calls, facsimile transmission, and e-mails with plaintiff, where action did
not directly implicate apartment's ownership, possession, or use, defendants had only plaintiff's California cell
phone number and were unaware she resided in New York during relevant period, and situs of alleged injury
was in California. Marie v. Altshuler (1 Dept. 2006) 30 A.D.3d 271, 817 N.Y.S.2d 261. Courts
13.5(3)
18. ---- Former residents, nondomiciliaries
The quoted language in this section providing that a court may exercise personal jurisdiction over “any nondomiciliary” as to a cause of action arising from acts enumerated is broad enough to include all nondomiciliaries
even though they become such after the cause of action on which jurisdiction is based arises, provided that the
acts out of which the cause of action arises were committed within the state and reflect the requisite minimal
contacts; it is a defendant's acts and conduct, not his domicile, which constitute the hard core of the jurisdictional reach. Levin v. Ruby Trading Corp., 1965, 248 F.Supp. 537. See, also, State v. Davies, 1965, 24 A.D.2d 240,
265 N.Y.S.2d 358, affirmed 18 N.Y.2d 950, 277 N.Y.S.2d 146, 223 N.E.2d 570; Polgar v. Morse, 1980, 104
Misc.2d 816, 429 N.Y.S.2d 351; Meadow Brook Nat. Bank v. Burton, 1966, 26 A.D.2d 612, 50 Misc.2d 612,
270 N.Y.S.2d 815; O'Connor v. Wells, 1964, 43 Misc.2d 1075, 252 N.Y.S.2d 861. Federal Courts
76.1
Court lacked personal jurisdiction over action brought against driver and owner of vehicle, which was involved
in automobile accident occurring in Vermont, where at time action was commenced driver and owner were not
domiciled in State, even though driver and owner had lived in State at time of accident, and had failed to notify
Commissioner of Motor Vehicles of their change of residence, as required by statute. Keane v. Kamin, 1999, 94
N.Y.2d 263, 701 N.Y.S.2d 698, 723 N.E.2d 553. Courts
13.5(5)
New York court lacked jurisdiction over Virginia resident, found by Vermont court to be owner of parcel of land
located in that state, in action by putative owner seeking reimbursement of real estate taxes paid in Vermont;
Virginia resident's only contacts with New York were a former residence, presence of family in state, ownership
of another unrelated parcel located in New York, and occasional visits, which were insufficient to establish jur-
Page 112
isdiction. N.A.S. Holdings, Inc. v. Pafundi (3 Dept. 2004) 12 A.D.3d 751, 784 N.Y.S.2d 218. Courts
13.5(2)
Long-arm jurisdiction statute applies, inter alia, to a defendant who is a domiciliary of state at the time he commits one of the alleged acts giving rise to lawsuit but is a nondomiciliary at the time of the lawsuit. Montgomery
13.7
v. Minarcin (3 Dept. 1999) 263 A.D.2d 665, 693 N.Y.S.2d 293. Courts
No traditional or long-arm basis existed for asserting jurisdiction over defendants who were no longer residing
in New York when action arising from out-of-state automobile accident was commenced. Keane v. Kamin (1
Dept. 1999) 257 A.D.2d 433, 683 N.Y.S.2d 250, leave to appeal granted 93 N.Y.2d 812, 695 N.Y.S.2d 540, 717
13.7
N.E.2d 699, affirmed 94 N.Y.2d 263, 701 N.Y.S.2d 698, 723 N.E.2d 553. Courts
19. ---- Foreign corporations, nondomiciliaries
Federal court in New York had jurisdiction to enforce French arbitration award in favor of German shipowner
against state-owned Romanian ship building contractor, even though arbitration did not involve any activities
within United States; ship builder had minimum contacts with United States from having used Romanian government offices in New York. Seetransport Wiking Trader Schifffarhtsgesellschaft MBH & Co., Kommanditgesellschaft v. Navimpex Centrala Navala, 1992, 793 F.Supp. 444, reversed on other grounds 989 F.2d 572, as
amended , on remand 837 F.Supp. 79. Alternative Dispute Resolution
515
Employer was not mere department of foreign affiliate, under corporate presence doctrine, allowing exercise of
personal jurisdiction over non-New York entity with presence in New York by virtue of doing business in New
York, as required for service upon employer to suffice as service upon foreign affiliate in employee's action to
recover allegedly unpaid salary and commissions, since employer had neither parent-subsidiary relationship nor
nearly identical ownership with affiliate. Arbeeny v. Kennedy Executive Search, Inc., 2011, 31 Misc.3d 494,
13.6(9)
This section granting court personal jurisdiction over any nondomiciliary transacting business within state or
committing tortious act within state, applies to foreign corporations as well as to individuals. Lewin v. Bock
Laundry Mach. Co., 1964, 42 Misc.2d 599, 249 N.Y.S.2d 49, affirmed 22 A.D.2d 854, 255 N.Y.S.2d 466, affirmed 16 N.Y.2d 1070, 266 N.Y.S.2d 391, 213 N.E.2d 686. See, also, Simonson v. International Bank, 1964, 14
13.5(4)
A foreign corporation not licensed to do business in New York is “nondomiciliary” within this section providing
that court may exercise personal jurisdiction over any nondomiciliary, as to cause of action arising from any of
acts enumerated if, through an agent, he transacts any business within state. Steele v. De Leeuw, 1963, 40
Misc.2d 807, 244 N.Y.S.2d 97. See, also, Traub v. Robertson-American Corp., 1975, 82 Misc.2d 222, 368
N.Y.S.2d 958. Courts
13.4(3)
20. Jurisdiction by consent or estoppel
Page 113
New York has apparently no doctrine of jurisdiction over foreign corporations by estoppel and such doctrine is
seemingly not embraced within purview of this section providing for personal jurisdiction by acts of nondomi13.4(3)
ciliaries. Gelfand v. Tanner Motor Tours, Limited, C.A.2 (N.Y.)1964, 339 F.2d 317. Courts
A nonresident may waive its immunity to process before as well as after commencement of proceedings and
consent that a state exercise jurisdiction over him. Emerson Radio & Phonograph Corp. v. Eskind, 1957, 32
166
Misc.2d 1038, 228 N.Y.S.2d 841. Process
21. Contractual consent
Consent-to-jurisdiction clause in contract is considered unreasonable, and thus unenforceable, only if: (1) its incorporation into agreement was result of fraud or overreaching; (2) complaining party will for all practical purposes be deprived of his day in court, due to grave inconvenience or unfairness of selected forum; (3) fundamental unfairness of chosen law may deprive complaining party of fair result in court; or (4) clause contravenes
strong public policy of forum state. Rescuecom Corp. v. Chumley, 2007, 522 F.Supp.2d 429. Federal Courts
95
Whether consent-to-jurisdiction clause is enforceable depends on whether: (1) clause was reasonably communicated to party resisting enforcement; (2) clause is mandatory rather than permissive; (3) claims and parties involved in suit are subject to clause; and (4) if first three factors are satisfied, whether resisting party has rebutted
presumption of enforceability created thereby, making sufficiently strong showing that enforcement would be
unreasonable or unjust, or that clause was invalid for, e.g., fraud or overreaching. Rescuecom Corp. v. Chumley,
95
Franchise agreement provisions, specifically a non-compete agreement and provision requiring that franchisee
cease operating franchised business upon termination, could not be construed to impose a continuing posttermination gag order on former franchisee so as to restrain him from expressing derogatory views of computer
services franchising company based upon his experiences there in a non-commercial and non-competitive context, and thus franchisee's conduct in establishing website allegedly referring to company as fraudulent did not
constitute a breach of the franchise agreement, as would warrant application of agreement's consent to New
York jurisdiction clause; any action for defamation on such statements should properly be brought in a court
where company could obtain personal jurisdiction over franchisee. Rescuecom Corp. v. Hyams, 2006, 477
F.Supp.2d 522. Contracts
95
Professional football player who consented to jurisdiction in New York in agency agreement was subject to jurisdiction in New York in agent's claims against football player for breach of contract and breach of loan agreement made in connection with agency agreement. Walters v. Fullwood, 1987, 675 F.Supp. 155. Courts
23
New York state court did not have personal jurisdiction over United Kingdom investment company, although
company previously submitted to New York jurisdiction under agreement in other matter; agreement did not
amount to broad submission to New York jurisdiction for all purposes, including instant litigation, and there otherwise was not substantial relationship between transaction and claim asserted. Richbell Information Services,
Page 114
Inc. v. Jupiter Partners, L.P. (1 Dept. 2003) 309 A.D.2d 288, 765 N.Y.S.2d 575, issued 2003 WL 22182861.
13.5(12)
Courts
22. Implied consent
Foreign corporation's agreement not to contest service did not mean that it consented to New York's jurisdiction.
25
Holness v. Maritime Overseas Corp. (1 Dept. 1998) 251 A.D.2d 220, 676 N.Y.S.2d 540. Courts
Although special term lacked personal jurisdiction over foreign corporate successor to domestic corporation
whose obligations it assumed under merger agreement, foreign successor was required to consent to service in
New York as part of merger and, where it had carried on business in New York through domestic corporation
and had effectively derived benefit of Business Corporation Law § 907, it was deemed to have duly filed certificate of merger containing consent to jurisdiction. Armour Handcrafts, Inc. v. Miami Decorating and Design
Center, Inc. (2 Dept. 1984) 99 A.D.2d 521, 471 N.Y.S.2d 607. Corporations And Business Organizations
3336
23. Collateral estoppel
Husband was not collaterally estopped from asserting jurisdiction under statute governing personal jurisdiction
over non-resident defendant in matrimonial actions or family court proceedings where it appeared that, in his
prior action for divorce, issue of jurisdiction was first raised orally and decided at conference, neither he nor his
attorney attended, and it did not otherwise appear that husband had full and fair opportunity to litigate issue.
Lipski v. Lipski (1 Dept. 2002) 293 A.D.2d 344, 740 N.Y.S.2d 324. Divorce
62(2)
Nonresident depository bank which had no place of business in state was not collaterally estopped from litigating issue of whether bank subjected itself to state jurisdiction by placing check in usual banking channels even
though different court previously determined in different action that bank had subjected itself to state jurisdiction by sending check to its agent with intent that check be placed in usual banking channels where there was no
agency relationship alleged in present case as issues were not identical in two cases. Citibank, N.A. v. Intercontinental Bank, 1996, 169 Misc.2d 342, 646 N.Y.S.2d 261. Judgment
715(3)
24. Waiver
Author against whom Saudi Arabian citizen obtained default judgment in libel lawsuit filed in England waived
argument that First Amendment would compel assertion of jurisdiction over Saudi citizen, regardless of New
York long-arm statute which precluded jurisdiction, in author's suit asserting declaratory claim that foreign judgment was not enforceable in United States, since author failed to mount such attack at any prior stage of prolonged litigation in federal courts. Ehrenfeld v. Mahfouz, C.A.2 (N.Y.)2008, 518 F.3d 102. Federal Courts
95; Federal Courts
613
25. Quasi in rem jurisdiction
Under New York long-arm statute, former possessor of sculpture who lacked New York contacts and had turned
Page 115
sculpture over to government was not subject to personal jurisdiction in New York resident's action seeking declaration of ownership of sculpture, regardless of fact that sculpture was within court's jurisdiction. Levitt v.
76.35
F.B.I., 1999, 70 F.Supp.2d 346. Federal Courts
New York resident suing, in federal district court in New York, as survivor of decedent who was also resident of
New York, a Virginia corporation, whose activities were confined to that state, as defendant on a personal injury
and wrongful death claim arising out of accident at construction site in Virginia could obtain jurisdiction based
on attachment based on contractual obligation of insurers, which maintained offices in New York, to defendant
corporation. O'Connor v. Lee-Hy Paving Corp., 1977, 437 F.Supp. 994, affirmed 579 F.2d 194, certiorari denied
99 S.Ct. 638, 439 U.S. 1034, 58 L.Ed.2d 696, rehearing denied 99 S.Ct. 2023, 441 U.S. 918, 60 L.Ed.2d 392, rehearing denied 99 S.Ct. 2023, 441 U.S. 918, 60 L.Ed.2d 391, certiorari denied 99 S.Ct. 639, 439 U.S. 1034, 58
21
L.Ed.2d 696. Courts
Whether quasi in rem jurisdiction exists in given case involves inquiry into presence or absence of constitutionally mandated minimum contacts, and thus, cases in which courts have determined that given set of facts is insufficient for exercise of personal jurisdiction under this section will not necessarily be dispositive of quasi in
rem question. Banco Ambrosiano, S.P.A. v. Artoc Bank & Trust Ltd., 1984, 62 N.Y.2d 65, 476 N.Y.S.2d 64,
464 N.E.2d 432. Courts
18
Fact that contacts with New York might be sufficient to support in personam jurisdiction did not furnish reason
to vacate attachment undertaken to secure quasi in rem jurisdiction. Unitech USA, Inc. v. Ponsoldt (1 Dept.
1983) 91 A.D.2d 903, 457 N.Y.S.2d 526. Attachment
227
Kentucky resident who had no contact, ties or relations with New York was not amenable to service of process
in New York in wrongful-death action and was not subject to jurisdiction on the basis of quasi in rem jurisdiction through garnishment of his insurer's obligation to defend and indemnify. Gager v. White (1 Dept. 1980) 78
A.D.2d 617, 432 N.Y.S.2d 388, affirmed 53 N.Y.2d 475, 442 N.Y.S.2d 463, 425 N.E.2d 851, certiorari denied
102 S.Ct. 644, 454 U.S. 1086, 70 L.Ed.2d 621. Courts
13.5(4); Courts
21
English corporation's contacts with New York, including fact that corporation agreement to sell documents of
title to 200 tons of Ugandan coffee to a corporation wholly owned by a Delaware corporation which was authorized to do business in New York, provided for arbitration in New York and that New York Uniform Commercial
Code was to be applied, were sufficient minimum contacts with New York so that maintenance of quasi in rem
proceeding, in which Delaware corporation, as assignee of documents of title, obtained attachment of English
corporation's New York assets, which were unrelated to the transaction, after carrier refused to deliver the coffee, would not offend traditional notions of fair play and substantial justice; English corporation's link with New
York was not broken due to Delaware corporation's waiver of arbitration by bringing the action. ACLI Intern.
Inc. v. E. D. & F. Man (Coffee) Ltd. (2 Dept. 1980) 76 A.D.2d 635, 430 N.Y.S.2d 858. Constitutional Law
3966; Courts
17
Test for presence of in rem jurisdiction in civil action brought against foreign defendant against whom in personam jurisdiction cannot be maintained is whether, in addition to presence of defendant's property in state, suffi-
Page 116
cient contacts exist between forum, defendant and litigation; in some instances, presence of property may
demonstrate those contacts, but where property is completely unrelated to plaintiff's cause of action, other contacts must be established. Wallace v. Target Store, Inc., 1977, 92 Misc.2d 454, 400 N.Y.S.2d 478. Courts
17
26. Real property, generally
Lack of any allegation that Florida bank owned, used, or possessed any real property in New York precluded
federal district court in New York from exercising personal jurisdiction over bank under relevant section of New
York long-arm statute. Guardino v. American Sav. & Loan Ass'n of Florida, 1984, 593 F.Supp. 691. Federal
94
Courts
Although Florida resident owned real property in New York such was insufficient to assert in personam jurisdiction under this section in action to recovery for property damage allegedly sustained as result of negligent installation of sprinkler system on plaintiffs' premises since this section governing ownership of realty in the state
is confined to actions arising from such ownership and this section does not make ownership of realty per se a
basis of jurisdiction. Aluminal Industries, Inc. v. Newtown Commercial Associates, 1980, 89 F.R.D. 326. Federal Courts
76.10
Petition to confirm arbitration award served well beyond one-year limitation period was untimely, despite assertion that general tolling provisions applied due to defendant's absence from state; trial court had long-arm jurisdiction over defendant through his ownership of real property in state, which was subject of petition to confirm
arbitration award. Salamon v. Friedman (2 Dept. 2004) 11 A.D.3d 700, 783 N.Y.S.2d 651. Alternative Dispute
Resolution
357
Evidence did not support finding that testator was domiciled in New York at time of his death; testator had
fixed, permanent, and principal home in Pennsylvania and always intended to return there after out-of-state visits to his family; moreover, when he died, testator did not own any New York real property and had not filed any
New York state residency income tax returns for approximately 15 years. Drew v. Hooper (4 Dept. 1990) 168
A.D.2d 903, 565 N.Y.S.2d 646. Domicile
10
New York court could assume jurisdiction over nondomiciliary Pennsylvania corporation in suit under lease as
to which such corporation was lessee, in view of fact that corporation possessed real property which was subject
of action. Genesee Scrap & Tin Baling Corp. v. Lake Erie Bumper Plating Corp. (4 Dept. 1977) 57 A.D.2d
1068, 395 N.Y.S.2d 826. Courts
13.5(2)
Where lessee agreed to lease commercial premises in New York and to supply goods or services in New York,
New York court had personal jurisdiction over lessee. Pyramid Co. of Ithaca v. Original Great American
Chocolate Chip Cookie Co., Inc., 1980, 102 Misc.2d 1056, 425 N.Y.S.2d 230. Courts
13.3(10)
Supreme Court had personal jurisdiction over nondomiciliary wife to extent that estranged husband's cause of
action sought to impose constructive trust on marital apartment located in New York. Werner v. Werner, 1979,
Page 117
101 Misc.2d 414, 423 N.Y.S.2d 780. Divorce
62(5); Divorce
871
Court had jurisdiction over suit to recover commissions allegedly due under a brokerage contract for sale of
New York realty owned by nonresident defendants by virtue of this section extending personal jurisdiction over
nondomiciliaries who transact any business within state or who own, use or possess any real property situated
13.5(3)
within state. Karrat v. Merhib, 1970, 62 Misc.2d 72, 307 N.Y.S.2d 915. Courts
In action to obtain conveyance of land in New York, or in the alternative damages, nonresident defendants who
had conveyed such land were properly served in foreign state personally since jurisdiction was grounded on relationship existing between defendants and the land out of which the cause of action arose at time it arose. Tebedo
83
v. Nye, 1965, 45 Misc.2d 222, 256 N.Y.S.2d 235. Process
27. Elements to establish jurisdiction, generally
Under New York law, court must follow two-step procedure in order to determine whether there is personal jurisdiction over defendant: (1) court must determine whether New York long-arm statutes provide basis for personal jurisdiction, and (2) if they do, court must then conduct constitutional inquiry to determine whether exercise of personal jurisdiction over defendant would offend due process. 777388 Ontario Ltd. v. Lencore Acoustics Corp., 2001, 142 F.Supp.2d 309. Constitutional Law
3964; Courts
13.2
Under New York law, determination of personal jurisdiction over nonresident defendant requires two-fold inquiry: (1) whether New York law provides a basis for exercising personal jurisdiction over the defendant, and
(2) if so, whether exercising jurisdiction over the defendant would offend due process. Yurman Designs, Inc. v.
A.R. Morris Jewelers, L.L.C., 1999, 41 F.Supp.2d 453, reconsideration denied 60 F.Supp.2d 241. Constitutional
Law
3964; Courts
13.2
Under New York's “long-arm” statute, court must determine (1) whether that statute provides basis for personal
jurisdiction, and (2) if it does, court must then conduct constitutional inquiry to determine whether exercise of
personal jurisdiction over defendant would offend due process pursuant to International Shoe. U.S.C.A.
Const.Amend. 14; N.Y.McKinney's CPLR 302. Local 875 I.B.T. Pension Fund v. Pollack, 1998, 992 F.Supp.
545. Constitutional Law
3964; Courts
13.2
28. Purposeful activity in state
Local police department in Delaware did not purposefully avail itself of the privilege of conducting business in
New York that would constitute due process minimum contacts and allow for the exercise of specific personal
jurisdiction in negligence and gross negligence case filed by arrestee against local police department after
Delaware State Police (DSP) checked the wrong address for arrestee and local police department erroneously issued a warrant for his arrest for failure to re-register as a sex offender, even though department listed warrant in
a national database, where department issued warrant while arrestee was still a resident of Delaware, department
took no active steps to enforce the warrant, and department did not seek arrestee's extradition. Doe v. Delaware
State Police, 2013, 2013 WL 1431526. Constitutional Law
76.25
Page 118
The test for jurisdiction under New York's long-arm statute is qualitative rather than quantitative, and the inquiry should be designed to determine whether the defendant has engaged in some purposeful activity in New
York in connection with the matter in suit. Wickers Sportswear, Inc. v. Gentry Mills, Inc., 2006, 411 F.Supp.2d
13.3(3); Courts
13.3(4)
202. Courts
Jurisdictional inquiry under New York long-arm statute focuses on whether defendant engaged in some purposeful activity in New York in connection with matter in suit. EED Holdings v. Palmer Johnson Acquisition Corp.,
13.3(8)
2004, 387 F.Supp.2d 265. Courts
Actions of foreign obligor under promissory note, affiliated entities, and their principal in sending payments to
New York bank account and correspondence to New York address and in engaging in telephone discussions
with principal for note's assignee, who was their legal advisor, while he was in New York did not amount to purposeful activity by which obligor, affiliates, and their principal availed themselves of privilege of conducting
business in New York, and thus did not give rise to personal jurisdiction over them in assignee's action to enforce note pursuant to provision of long-arm statute permitting exercise of personal jurisdiction over nondomiciliary who transacted business in state or contracted to supply goods or services in state. Magwitch, L.L.C.
v. Pusser's Inc. (1 Dept. 2011) 84 A.D.3d 529, 923 N.Y.S.2d 455, leave to appeal denied 18 N.Y.3d 803, 938
13.3(11)
N.Y.S.2d 860, 962 N.E.2d 285. Courts
29. Minimum contacts requirement--In general
Under New York law, for court to subject nondomiciliary defendant to court's long-arm jurisdiction, defendant
must engage in purposeful transactions within state, and there must be substantial relationship between such
transactions and claim asserted. I.L.G.W.U. Nat. Retirement Fund v. Meredith Grey, Inc., 1997, 986 F.Supp. 816
. Courts
13.3(10)
In order to satisfy the constitutional requirement that there be a jurisdictional basis for a court to have the power,
or reach, over a party, so as to enforce judicial decrees, there must be a constitutionally adequate connection
between the defendant, the State and the action, and there must be an articulable nexus between the business
transacted and the cause of action sued upon. Bookstaver v. Saintfort (1 Dept. 2004) 10 A.D.3d 514, 781
13.3(8); Courts
13.3(11)
Activities of nonresident members of a class within the forum and the interests which the forum has in the issues
in dispute have no real bearing upon the question of whether sufficient contacts exist to assert personal jurisdiction over nonresident members of a class. Katz v. NVF Co. (1 Dept. 1984) 100 A.D.2d 470, 473 N.Y.S.2d 786.
Courts
13.3(3); Courts
13.6(1)
30. ---- Due process considerations, minimum contacts requirement
“Due process of law” requires only that in order to subject a defendant to a judgment in personam, if he be not
present within territory of forum, he have certain minimum contacts with it such that maintenance of the suit
does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. State of Wash.,
Page 119
Office of Unemployment Compensation and Placement, U.S.Wash.1945, 66 S.Ct. 154, 326 U.S. 310, 90 L.Ed.
95. See, also, Paul v. Premier Elec. Const. Co., D.C.N.Y.1983, 576 F.Supp. 384, transferred to 581 F.Supp. 721;
Birmingham Fire Ins. Co. of Pennsylvania v. KOA Fire & Marine Ins. Co., Ltd., D.C.N.Y.1983, 572 F.Supp.
962; Car-Freshner Corp. v. Broadway Mfg. Co., D.C.N.Y.1971, 337 F.Supp. 618; Katz v. NVF Co., 1984, 100
A.D.2d 470, 473 N.Y.S.2d 786; Martinez v. American Standard, 1982, 91 A.D.2d 652, 457 N.Y.S.2d 97, affirmed 60 N.Y.2d 873, 470 N.Y.S.2d 367, 458 N.E.2d 826; Hubbard, Westerwelt & Mottelay, Inc. v. Harsh
4008
Bldg. Co., 1967, 28 A.D.2d 295, 284 N.Y.S.2d 879. Constitutional Law
Arrestee did not establish that local police department in Delaware had due process minimum contacts with New
York that would sustain an exercise of specific personal jurisdiction over police department in negligence and
gross negligence action against local police department after Delaware State Police (DSP) checked the wrong
address for arrestee and local police department erroneously issued a warrant for his arrest for failure to reregister as a sex offender, where allegations of local police department's contacts with New York were generalized with that of the Delaware State Police (DSP), and the statement that department issued warrants nationwide,
appeared in court as witnesses and handled nationwide extraditions was conclusory and lacked factual detail.
Doe v. Delaware State Police, 2013, 2013 WL 1431526. Constitutional Law
76.25
Minimum contacts, as required for exercise of jurisdiction over non-domiciliary to comport with due process
clause of the Fourteenth Amendment, exist where the defendant purposefully availed itself of the privilege of
doing business in the forum state and could reasonably anticipate being haled into court there. Pearson Education, Inc. v. Shi, 2007, 525 F.Supp.2d 551. Constitutional Law
3964
Under New York law, a plaintiff can satisfy the due process requirements for personal jurisdiction over a foreign
corporation in a diversity action by showing that the defendant had sufficient minimum contacts with the forum
state, such as when the foreign defendant regularly does business in the forum state. In re Terrorist Attacks on
September 11, 2001, 2006, 440 F.Supp.2d 281. Constitutional Law
3965(3)
Due process requires that defendant have enough minimum contacts with forum state so that maintenance of suit
against him in forum does not offend traditional notions of fair play and substantial justice; due process is satisfied if defendant purposely and sufficiently availed himself of privilege of conducting business in forum, so that
it is reasonable for him to anticipate being subject to suit in forum. Newbro v. Freed, 2004, 337 F.Supp.2d 428.
Constitutional Law
3965(3)
Non-resident copyright infringement defendant who satisfied New York's long arm requirement of doing business in state necessarily had sufficient minimum contacts for exercise of personal jurisdiction to comport with
due process. Excelsior College v. Frye, 2004, 306 F.Supp.2d 226. Constitutional Law
3965(1); Copyrights
And Intellectual Property
79
31. ---- Claims arising from contacts with state, minimum contacts requirement
There was no articulable nexus or substantial relationship between New York company's claims against Mary-
Page 120
land information technology company in federal court for breach of contract, tortious interference with business
opportunity and contract, and misappropriation of trade secrets, and any actions by Maryland company in New
York, so as to come within New York's long-arm jurisdiction statute, despite New York company's argument
that it communicated with Maryland company from New York concerning contracts and project opportunity;
contracts giving rise to claims were neither negotiated nor executed by Maryland company in New York, alleged
breaches occurred when Maryland company refused to submit bid in partnership with New York company, and
instead submitted bid on its own behalf for project in Hawaii. Zibiz Corp. v. FCN Technology Solutions, 2011,
79
777 F.Supp.2d 408. Federal Courts
Plaintiff's causes of action did not arise from a transaction of business or commission of a tortious act within
New York, as would support exercise of personal jurisdiction over non-resident defendant pursuant to New
York's long-arm statute, although defendant allegedly had contacts with plaintiff in New York, where none of
plaintiff's claims arose out of those alleged contacts. Lipin v. Bergquist, 2008, 574 F.Supp.2d 423. Federal
88
Courts
Sale of purported counterfeit of trademarked handbag to employee of law firm that represented trademark owner
and that subsequently was maintained almost continuously in counsel's possession and/or control was not contact that could be used to support specific personal jurisdiction in New York under New York long-arm statute,
for lack of due process, since owner's cause of action did not arise out of or relate to that sale and there was no
likelihood of either “point-of-sale” or “post-sale” confusion associated with such purchase. Chloe, Div. of Richemont North America, Inc. v. Queen Bee of Beverly Hills, LLC, 2008, 571 F.Supp.2d 518, supplemented 630
F.Supp.2d 350, vacated 616 F.3d 158, 96 U.S.P.Q.2d 1349, on remand 2011 WL 3678802. Constitutional Law
3965(4); Trademarks
1558
32. ---- Single act in state, minimum contacts requirement
Proof of one transaction in New York by nondomiciliary corporate defendant is sufficient to invoke jurisdiction
under New York long-arm statute, even if defendant never enters the state, so long as the defendant's activities
in New York were purposeful and there is a substantial relationship between the transaction and the claim asserted; in making such determination, courts must evaluate the quality and nature of a nonresident defendant's contacts with New York under a “totality of the circumstances test,” such that the nonresident defendant should
reasonably anticipate being haled into court in New York. Taylor Devices, Inc. v. Walbridge Aldinger Co.,
79
No single event or contact connecting defendant to the forum state need be demonstrated in order to establish
personal jurisdiction under New York long-arm statute; rather, the totality of all defendant's contacts with the
forum state must indicate that the exercise of jurisdiction would be proper. Burrows Paper Corp. v. R.G. Engineering, Inc., 2005, 363 F.Supp.2d 379. Courts
13.3(3)
Provision of New York long-arm statute allowing personal jurisdiction to be asserted over nondomiciliary corporation that transacts any business within state is a “single act statute” and requires only one transaction, even
if the defendant never entered New York. Dimensional Media Associates, Inc. v. Optical Products Development
Corp., 1999, 42 F.Supp.2d 312. Courts
13.4(3)
Page 121
New York's long-arm jurisdiction statute is a single act statute, and proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's
activities in New York were purposeful and there is a substantial relationship between the transaction and the
13.3(10)
claim asserted. Grimaldi v. Guinn (2 Dept. 2010) 72 A.D.3d 37, 895 N.Y.S.2d 156. Courts
While a single transaction may suffice to establish the requisite connection with the forum warranting assertion
of personal jurisdiction over a nonresident, whether due process is satisfied will depend on the quality and
nature of the act in relation to the fair and orderly administration of the laws. Gladding Corp. v. Balco-Pedrick
3964
Parts Corp. (4 Dept. 1980) 76 A.D.2d 1, 429 N.Y.S.2d 940. Constitutional Law
Provision of New York long-arm statute covering transaction of business in state is a “single act statute,” and
one transaction in New York is sufficient to support jurisdiction, even though defendant never entered New
York, so long as defendant's activities there were purposeful and there is a substantial relationship between the
transaction and the claim asserted. Taibleson v. National Center for Continuing Educ., 2002, 190 Misc.2d 796,
13.3(11)
33. ---- Contacts of plaintiff, minimum contacts requirement
Fact that New York was center of plaintiff New York corporation's activities would be irrelevant to determination of whether, under this section governing personal jurisdiction by acts of nondomiciliary, New York court
had personal jurisdiction over defendant Missouri corporation in plaintiff's action for amount due for fabric processing work it performed in North Carolina for Missouri corporation. Sayles Biltmore Bleacheries, Inc. v. SoftFab Textile Processors, Inc., 1977, 440 F.Supp. 1010. Federal Courts
96
New York collection agency claiming breach by former Chicago area salesperson of anticompetitive clause contained in employment contract could not add sufficient New York contacts with salesperson to support long-arm
jurisdiction over her by alleging that its New York office approved her clients, its New York collectors worked
on some of her clients' claims, and that she received her check from its New York office, where she was directly
supervised by agency's Midwest regional manager and her contacts with agency's New York office were negligible; New York courts have declined personal jurisdiction where activities within state were those of plaintiff
rather than those of defendant. G. S. C. Associates, Inc. v. Rogers, 1977, 430 F.Supp. 148. Federal Courts
94
This section is concerned only with defendant's contacts with the forum state, not with plaintiff's. National Iranian Oil Co. v. Commercial Union Ins. Co. of New York, 1973, 363 F.Supp. 129. Federal Courts
76.5
Plaintiff may not for purposes of personal jurisdiction by acts of nondomiciliary rely solely upon his own activity in state. Laufer v. Ostrow, 1982, 55 N.Y.2d 305, 449 N.Y.S.2d 456, 434 N.E.2d 692. See, also, Marketing
Showcase, Inc. v. Alberto-Culver Co., D.C.N.Y.1978, 445 F.Supp. 755; Development Direction, Inc. v. Zachary,
D.C.N.Y.1976, 430 F.Supp. 783; DelBello v. Japanese Steak House, Inc., 1974, 43 A.D.2d 455, 352 N.Y.S.2d
537. Courts
13.3(3)
Page 122
34. ---- Sufficiency of particular contacts with state, minimum contacts requirement
Foreign sovereign's issuance of negotiable debt instruments denominated in United States dollars and payable in
New York, and its appointment of a financial agent in that city, was purposeful availment of the privilege of
conducting activities within the United States, which satisfied the “minimum contacts” requirements of the due
process clause. Republic of Argentina v. Weltover, Inc., U.S.N.Y.1992, 112 S.Ct. 2160, 504 U.S. 607, 119
3965(11); International Law
10.30
L.Ed.2d 394. Constitutional Law
California former chief executive officer's (CEO) ownership interest in property located in New York was insufficient to support exercise of personal jurisdiction over CEO, under New York's long-arm statute, in New York
corporate sellers' breach of contract action against California corporate buyer of pizza boxes and buyer's former
CEO, since CEO was merely one of group of investors who were mortgagees with respect to single piece of real
property located in New York State, and sellers' lawsuit had no relation whatever to mortgaged property. Mangia
76.20
Media Inc. v. University Pipeline, Inc., 2012, 846 F.Supp.2d 319. Federal Courts
New York nautical services corporation made a prima facie showing that due process was satisfied because its
trademark and contract claims arose out of Florida licensees' contacts with New York and that exercise of personal jurisdiction comported with traditional notions of fair play and substantial justice; suit arose out of licensees' activities in New York, including entering into license agreement that established continuous contractual relationship with corporation and subjected licensees to its supervision, mailing payments to and receiving
payments from corporation's headquarters, and consenting to be governed by New York law, licensees failed to
show exercise of jurisdiction was unreasonable even though minimum contacts were present, New York had unquestionable interest in adjudicating claims, and licensees failed to offer persuasive social policy that would
counsel against exercising jurisdiction. Sea Tow Services Intern., Inc. v. Pontin, 2007, 472 F.Supp.2d 349. Constitutional Law
79
Citizens and residents of the United Kingdom, and their U.K. corporation, had sufficient minimum contacts with
New York for a federal district court in that state to exercise personal jurisdiction over them in plaintiff's action
based on their alleged breach of venture agreement, since defendants engaged in business transactions in New
York, within meaning of New York's long-arm statute. Miller v. Calotychos, 2004, 303 F.Supp.2d 420. Federal
Courts
86
Principles of due process did not prevent federal court from asserting personal jurisdiction over breach of contract, breach of fiduciary duty and unjust enrichment claims initially brought in New York state court by film
producer against actor, stemming from failed film projects, since actor's contacts with New York at time of pertinent events were not random or unintentional actions; by residing in New York and by purposefully directing
his business activities at other residents, actor availed himself of privileges of conducting business in New York
so as reasonably to expect to be subject to suit there. Nasso v. Seagal, 2003, 263 F.Supp.2d 596. Constitutional
Law
74
Due process requirements, for assertion of personal jurisdiction over German theatrical company producing German version of American musical, being sued by performer in American version for appropriation of likeness in
violation of New York statute, were satisfied through existence of minimum contacts between company, New
Page 123
York as forum, and litigation, arising from licenses and production agreements with New York based holders of
rights to musical. Cuccioli v. Jekyll & Hyde Neue Metropol Bremen Theater Produktion GmbH & Co., 2001,
86
150 F.Supp.2d 566, 59 U.S.P.Q.2d 1771. Constitutional Law
Broker's acts of mailing insurance policies and renewals to insured, servicing the policies by mail and telephone,
and billing and collecting premiums were sufficient minimum contacts under due process clause, and, thus, exercising personal jurisdiction over broker in suit by insured and cross-claim by insurer that arose out of allegedly
erroneous reduction in policy limits would not offend traditional notions of fair play and substantial justice. Car3965(6); Federal Courts
onia v. American Reliable Ins. Co., 1998, 999 F.Supp. 299. Constitutional Law
76.35
Texas seller of telecommunications equipment was subject to personal jurisdiction in New York; seller's contract to supply goods and services in New York met requirements of state's long-arm statute, and seller had sufficient minimum contacts with New York by virtue of its subcontract with New York corporation to install
seller's telecommunications products in New York. Micro-Assist, Inc. v. Cherry Communications, Inc., 1997,
76.30
Physician who while working for federal government in 1946 had directed that subject of experiments be injected, without her knowledge, with plutonium in New York and that personnel at university hospital in New York
conduct experiments had sufficient minimum contacts with New York to allow exercise of personal jurisdiction
under due process clause by New York court in action by subject's survivor, even though physician had not lived
in New York since 1940; physician had helped plan research and made trips to New York, thus making contacts
considered important by participants and involving matters of national security. Stadt v. University of Rochester,
1996, 921 F.Supp. 1023. Constitutional Law
76.25
Foreign corporation's sale of its goods in New York through its subsidiaries established minimum contacts with
New York, as forum state, and showed that foreign corporation had purposely availed itself of privilege of conducting activities in New York, permitting exercise of personal jurisdiction over it in patent infringement case,
without violating due process. Pfizer Inc. v. Perrigo Co., 1995, 903 F.Supp. 14. Constitutional Law
3965(4); Patents
288(4)
Jurisdiction over non-domiciliary guarantor was established by a preponderance of the evidence, where guarantor had made numerous telephone calls to an individual in New York to procure investors for a corporation that
guarantor chaired and in which he had substantial holdings, guarantor had sent other to New York who acted on
his behalf in dealing with investment bankers involved in obtaining financing for the corporation, and guarantor
was subject to a forum selection clause in the notes underlying his guarantee. Brax Capital Group, LLC v. WinWin Gaming, Inc. (1 Dept. 2011) 83 A.D.3d 591, 922 N.Y.S.2d 43. Courts
13.5(12)
California-based law firm had contacts with New York of sufficient quantity and quality to confer jurisdiction
over it in third-party action brought by New York-based law firm, arising from underlying legal malpractice action against New York firm; California firm engaged in extensive communications with New York-based counsel of entity acting on behalf of plaintiff in underlying action, relating every aspect of California litigation for
Page 124
which California firm had been retained and seeking input from New York counsel, and members of California
firm made at least three trips to New York in connection with representation. Millennium Import, LLC v. Reed
13.5(11)
Smith, LLP (1 Dept. 2009) 63 A.D.3d 561, 881 N.Y.S.2d 100. Courts
California law firm's due process rights were not offended by maintenance of New York firm's third-party action
against California firm, arising from underlying legal malpractice action, given California firm's purposeful
activities in New York. Millennium Import, LLC v. Reed Smith, LLP (1 Dept. 2009) 63 A.D.3d 561, 881
3965(5); Courts
13.5(11)
N.Y.S.2d 100. Constitutional Law
New York resident who was personal guarantor of consolidated mortgage notes between bank and New Jersey
real estate partnership should have reasonably anticipated that he would have to defend himself on notes in a
Texas court, and thus Texas default judgment against guarantor was entitled to full faith and credit; minimum
contacts had been established since guarantor directed his activities at a Texas resident, acted deliberately, and
entered into a contract performed at least in part in Texas, notwithstanding New Jersey locus of part of underlying transaction. JDC Finance Company I, L.P. v. Patton (1 Dept. 2001) 284 A.D.2d 164, 727 N.Y.S.2d 71.
13.5(12); Judgment
815; Judgment
818(1)
Courts
New York resident who signed note, payable in Florida, for his interest in Florida limited partnership had sufficient contacts with Florida that he should reasonably have anticipated being sued there when he failed to make
payments on note; accordingly, Florida court could exercise in personam jurisdiction consistent with requirements of due process. City Federal Sav. Bank v. Reckmeyer (2 Dept. 1991) 178 A.D.2d 503, 577 N.Y.S.2d 430.
Constitutional Law
3965(7); Courts
13.5(3)
Attorney alleged sufficient facts to create a prima facie case of personal jurisdiction over former clients, nonresident business entities, under New York long-arm statute in action to recover unpaid attorney fees; entities retained New York attorney to represent them in civil litigation in federal district court in New York, they were
physically present in New York for bench trial during which time they discussed case with attorney and instructed him on how to proceed, entities engaged in settlement meeting in New York, and they communicated with
attorney in New York by telephone and e-mail during the course of representation. Banker v. Esperanza Health
Systems, Ltd., C.A.2 (N.Y.)2006, 201 Fed.Appx. 13, 2006 WL 2853045, Unreported. Federal Courts
94
There were sufficient contacts between Netherlands accounting firm and United States to confer personal jurisdiction, in securities fraud suit by investors claiming they were induced to purchase shares of American corporation by fraudulent accounting practices of affiliate; accused affiliate was corporate entity through which Netherlands firm operated, and it was Netherlands firm, by and through members, that issued unqualified audit opinion
letters forming basis of suit, knowing they would be included in Securities and Exchange Commission (SEC) filings. Teachers' Retirement System of LA v. A.C.L.N., Ltd., 2003, 2003 WL 21058090, Unreported. Federal
Courts
86
35. ---- Insufficient contacts, minimum contacts requirement
Page 125
Saudi Arabian citizen's contacts with New York stemming entirely from his default judgment in England against
New York author were insufficient for exercise of jurisdiction over Saudi citizen, under New York long-arm
statute, in author's suit asserting declaratory claim that foreign judgment was not enforceable in United States.
86
Ehrenfeld v. Mahfouz, C.A.2 (N.Y.)2008, 518 F.3d 102. Federal Courts
Fact that patent licensee signed contract in New York, and that contract was subsequently transmitted to
Switzerland for signature by manufacturer, did not constitute meaningful activity by manufacturer in New York
which would entitle patent holder to personal jurisdiction over manufacturer within meaning of this section. McShan v. Omega Louis Brandt et Frere, S.A., C.A.2 (N.Y.)1976, 536 F.2d 516, 191 U.S.P.Q. 8. Federal Courts
89
Where charges made in complaint were stated to have reference to conduct and statements of defendant alleged
to have been done or made within State of New Jersey, there was no suggestion that any of causes of action
arose out of transaction of any business within New York or out of ownership, use or possession of any realty
within New York, and no tortious act was alleged to have been committed within New York, motion to quash
service on defendant in new Jersey was properly granted notwithstanding that such defendant might have been
admitted to practice law in New York and that only a few miles separated the states. Grossman v. Pearlman,
C.A.2 (N.Y.)1965, 353 F.2d 284, certiorari denied 86 S.Ct. 1887, 384 U.S. 987, 16 L.Ed.2d 1004, rehearing
denied 87 S.Ct. 14, 385 U.S. 890, 17 L.Ed.2d 122. Process
158
Federal district court sitting in New York lacked personal jurisdiction over attorney practicing in Maine, sued by
daughter of decedent alleging that attorney, representing estate, deprived her of decedent's coin collection and
lakeshore property; while attorney held license to practice in New York, he had never done so, and mailing of
allegedly fraudulent estate tax return to daughter at her New York residence did not provide sufficient contact
with jurisdiction. Lipin v. Hunt, 2008, 538 F.Supp.2d 590, motion to vacate denied 573 F.Supp.2d 830. Federal
Courts
76.25
In action to recover for breach of contract of carriage, Federal District Court for the Southern District of New
York was without personal jurisdiction over defendant time charterer that was a Dutch Corporation with its principal place of business in the Netherlands, that did not regularly transact business or engage in persistent course
of conduct in New York, that was not qualified to do business in New York, that did not maintain office in New
York, that had no agent in New York, that did not transact business in New York giving rise to plaintiffs' complaint; economic impact of time charterer's acts outside of New York on New York residents did not constitute
sufficient contact with New York to satisfy the “minimal contacts” requirement under this section. HaremChristensen Corp. v. M. S. Frigo Harmony, 1979, 477 F.Supp. 694. Federal Courts
79
Defendant Canadian corporation did not purposely avail itself of the privilege of conducting activities in New
York, so that action against it for breach of an alleged finder's fee contract would have to be dismissed for lack
of in personam jurisdiction under this section, where original contact between defendant and plaintiff was precipitated by the latter, most of the telephone conversations involving the parties were initiated by the plaintiff, it
was at plaintiff's direction that oral agreement was reduced to writing and sent to New York, trip to New York
by officer of defendant was made at plaintiff's behest to accommodate the convenience of certain officials, the
Page 126
duration of such trip was only one business day, and where there was no suggestion that New York law would
84
govern the transactions. Chertok v. Ethyl Corp. of Canada, 1972, 341 F.Supp. 1251. Federal Courts
Plaintiff failed to establish that former Attorney General of State of New Jersey had sufficient contacts with
New York to allow exercise of personal jurisdiction over her under New York long-arm statute. Barth v. Kaye,
13.5(1)
1998, 178 F.R.D. 371. Courts
Greek limited partnership did not have requisite “minimum contacts” with United States, and could not be subject to federal court's personal jurisdiction in lawsuit arising out of its representation of corporation
headquartered in New York in shipping transaction that took place in Greece, where limited partnership's only
office was in Greece, partnership was not authorized to do, nor did it solicit or conduct, any business in United
States, partnership did not have agency in United States who solicited or conducted business on its behalf, and
none of partnership's employees visited the United States, with any frequency. In re Levant Line, S.A., 1994,
86
166 B.R. 221. Constitutional Law
Tortious motorist's insurer, a Pennsylvania corporation, lacked sufficient contact with New York to be subjected
to personal jurisdiction in New York absent a waiver, in action brought by non-tortious motorist's insurer seeking to permanently stay arbitration of non-tortious motorist's claim for uninsured motorist benefits, following
tortious motorist's denial of coverage on ground that tortious motorist's policy had lapsed, where tortious motorist's insurer was not present in New York. Government Employees Ins. Co. v. Basedow (2 Dept. 2006) 28
A.D.3d 766, 816 N.Y.S.2d 106. Insurance
3286
Fact that Indonesian debtor and guarantor were parties to indenture agreement with United States trustee was insufficient to subject them to personal jurisdiction in New York, in collection action by Indonesian creditor; debtor and guarantor had no other contacts with New York and, although debt instruments referenced indenture
agreement, documents were not executed as parts of global transaction and creditor was not intended third party
beneficiary of agreement. PT. Bank Mizuho Indonesia v. PT. Indah Kiat Pulp & Paper Corp. (1 Dept. 2006) 25
A.D.3d 470, 808 N.Y.S.2d 72. Courts
13.5(12)
Court had no personal jurisdiction over two foreign corporations, and, thus was without power to issue a binding
forum non conveniens ruling as to them, in fraudulent inducement to invest case, when neither was New York
resident, maintained any presence in state, or purposefully availed itself of opportunity to transact business in
state, and allegations that corporations intended to perpetrate fraud either through New York agents or by causing injury in state were inadequate. Wyser-Pratte Management Co., Inc. v. Babcock Borsig AG (1 Dept. 2005)
23 A.D.3d 269, 808 N.Y.S.2d 3. Courts
40.11(1)
Training of employees of nonresident defendant in State does not of itself suffice as grounds for an assumption
of long-arm jurisdiction over defendant. Hessel v. Goldman, Sachs & Co. (1 Dept. 2001) 281 A.D.2d 247, 722
N.Y.S.2d 21, leave to appeal dismissed in part, denied in part 97 N.Y.2d 625, 735 N.Y.S.2d 485, 760 N.E.2d
1280. Courts
13.6(1)
Page 127
Foreign electricity wholesaler that cancelled contract with New York wholesaler's Midwest supplier was not
subject to personal jurisdiction in New York under provision of long-arm statute permitting exercise of personal
jurisdiction over a nonresident who commits a tortious act outside the state causing injury to person or property
within the state, where wholesaler did not sell power in New York, receive power in New York or otherwise engage in sufficient purposeful activities either in New York or directed at New York to satisfy due process requirements. Niagara Mohawk Energy Marketing, Inc. v. Entergy Power Marketing Corp. (4 Dept. 2000) 270
13.5(4)
A.D.2d 872, 706 N.Y.S.2d 794. Courts
Dominican Republic defendants' contacts with the United States were insufficient to support exercise of personal jurisdiction by United States courts without offending traditional notions of fair play and substantial justice,
given that particular economic advantage sought to be gained from commercial activity engaged in by defendants concerned purchase of equipment from Italian corporation under benefit of Italian law and plaintiff's involvement in this transaction was after the fact and not as consequence of any action on part of defendants. New
Hampshire Ins. Co. v. Wellesley Capital Partners, Inc. (1 Dept. 1994) 200 A.D.2d 143, 612 N.Y.S.2d 407.
13.3(10)
Courts
Jurisdiction did not exist under long-arm statute over fourth-party defendant, a British manufacturer of component of allegedly defective chair, in products liability action where corporation had never been registered, authorized or qualified to do business in state, did not maintain any personnel, bank accounts, real or personal property, sales offices, or agents in state, and had no contact with any state company concerning chair component at
issue. Murdock v. Arenson Intern. USA, Inc. (1 Dept. 1990) 157 A.D.2d 110, 554 N.Y.S.2d 887. Courts
13.5(8)
As a matter of law, foreign company which inspected and maintained trailers lacked sufficient contacts with
state to be subject to personal jurisdiction in tractor-trailer driver's personal injury action for injuries allegedly
sustained in another state due to braking defect; driver failed to allege that company maintained offices or bank
accounts, solicited business, maintained telephone listing or employees in state. Miller v. Weyerhaeuser Co.,
13.5(5)
Foreign corporate defendants did not purposefully avail themselves of privilege of conducting activities within
forum state, and thus district court lacked personal jurisdiction over defendants under New York law, in action
for breach of letter of intent to purchase hotel; although defendants agreed to be bound by law of forum state, no
employee of defendant ever entered forum state, and contract between parties was to be performed entirely outside of forum state. Berkshire Capital Group, LLC v. Palmet Ventures, LLC, C.A.2 (N.Y.)2008, 307 Fed.Appx.
479, 2008 WL 5233039, Unreported. Federal Courts
79
35.5. Situs of injury, minimum contracts requirement
For purposes of personal jurisdiction analysis pursuant to New York's long-arm statute, situs of publisher's alleged injury from publication of complete copies of publisher's copyrighted works on coordinated websites was
New York. Penguin Group (USA) Inc. v. American Buddha, C.A.2 (N.Y.)2011, 640 F.3d 497, 98 U.S.P.Q.2d
1659, on remand 106 U.S.P.Q.2d 1306, 2013 WL 865486. Copyrights and Intellectual Property
79
Page 128
Under New York law, arrestee was not injured in person or with respect to property in New York, as required
for the exercise of specific personal jurisdiction over Delaware state police with respect to arrestee's claims of
negligence and gross negligence arising from the alleged acts of police in checking the wrong address for arrestee and local police department erroneously issuing a warrant for his arrest for failure to re-register as a sex
offender, even though arrestee was arrested in New York, where the initial injury occurred in Delaware when
the state issued the erroneous warrant for arrest, and New York law enforcement merely relied on a facially val88
id Delaware arrest warrant. Doe v. Delaware State Police, 2013, 2013 WL 1431526. Federal Courts
Situs of injury was not in New York, as would be required for personal jurisdiction under New York's long-arm
statute applicable to tortious act outside the state causing injury to person or property within state, in diversity
action against defendant attorney, a Connecticut resident, who represented claimants who had settled without litigation underlying claims against plaintiff, a New York resident, for finder's fees and commissions, who allegedly served as escrow agent with respect to stock, received by defendant from plaintiff, which was to be
transferred to claimants in exchange for general releases of underlying claims, and who was sued by plaintiff for
breach of contract, breach of fiduciary duty, and promissory estoppel, based on allegations that defendant had
not delivered general releases and that claimants were now suing plaintiff in Florida on underlying claims; first
alleged injury was that if defendant had returned stock within reasonable time then plaintiff could have sold it
before company's bankruptcy, but alleged tort occurred in Connecticut and company's bankruptcy proceedings
occurred in Delaware, and second alleged injury was that if signed releases had been timely returned then
plaintiff would not have had to incur legal expenses arising from Florida suit, but relevant triggering event for
injury was either failure to send executed releases to plaintiff, which occurred in Connecticut, or commencement
of new lawsuit, which took place in Florida. Mirman v. Feiner, 2012, 900 F.Supp.2d 305. Federal Courts
76.20
Where commercial, non-physical losses are alleged in an action, the situs of the injury for purposes of long-arm
jurisdiction is not where the losses are sustained, but where the critical events associated with the dispute took
place. Benifits By Design Corp. v. Contractor Management Services, LLC (3 Dept. 2010) 75 A.D.3d 826, 905
13.5(4)
36. Presence within state--In general
“Presence” of foreign corporation in state for purpose of maintenance of suit against it exists when activities of
corporation in state of forum have not only been continuous and systematic, but also give rise to liabilities sued
on, even though no consent to be sued or authorization to an agent to accept service of process has been given.
International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement,
U.S.Wash.1945, 66 S.Ct. 154, 326 U.S. 310, 90 L.Ed. 95. Constitutional Law
3965(3)
Nonresident's mere social visit to New York to attend plaintiff's wedding was insufficient to provide basis for
personal jurisdiction over her with respect to fraud, conversion, and other claims arising out of separate incidents. Borumand v. Assar, 2001, 192 F.Supp.2d 45. Federal Courts
76.25
Where plaintiffs alleged that during certain periods defendant, who was a resident of Florida at time of action,
had transacted business in New York and made fraudulent accounting of affairs of corporation, and defendant
Page 129
admitted that he voted in New York and paid his income taxes there, there was sufficient basis for in personam
jurisdiction over defendant by New York under this section. Davis v. Gahan, 1964, 227 F.Supp. 867. Federal
75
Courts
One need not be physically present in order to be subject to jurisdiction under this section. Parke-Bernet Galleries, Inc. v. Franklyn, 1970, 26 N.Y.2d 13, 308 N.Y.S.2d 337, 256 N.E.2d 506. See, also, Teachers Ins. and Annuity Ass'n of America v. Butler, D.C.N.Y.1984, 592 F.Supp. 1097; Wichita Federal Sav. and Loan Ass'n v.
Comark, D.C.N.Y.1984, 586 F.Supp. 940, affirmed 810 F.2d 1161; Dogan v. Harbert Const. Corp.,
D.C.N.Y.1980, 507 F.Supp. 254; Impex Metals Corp. v. Oremet Chemical Corp., D.C.N.Y.1971, 333 F.Supp.
13.3(1)
771; Lumbermens Mut. Cas. Co. v. Borden Co., D.C.N.Y.1967, 265 F.Supp. 99. Courts
37. ---- Activities constituting presence within state
Under New York law, defendants, as a rule, should be subject to suit where they are normally found, that is, at
their pre-eminent headquarters or where they conduct substantial general business activities; only in rare cases
should they be compelled to answer suit in jurisdiction in which they have barest of contact. United Computer
Capital Corp. v. Secure Products, L.P., 2002, 218 F.Supp.2d 273. Courts
13.3(11)
Corporation's presence within the forum is required for jurisdiction and that presence can be manifested only by
activities carried on in its behalf by those who are authorized to act for it; presence does not require that the nondomiciliary be physically found within the forum. McGowan v. Smith (4 Dept. 1979) 72 A.D.2d 75, 423
N.Y.S.2d 90, affirmed 52 N.Y.2d 268, 437 N.Y.S.2d 643, 419 N.E.2d 321. Courts
13; Courts
13.6(1)
38. ---- Insurance policies, presence within state
In medical malpractice action brought by New York domiciliaries against Florida doctor and hospital, the
“presence” of defendants' property or debt in New York state, i. e., liability insurance policies issued by insurance carriers having offices and doing business in New York, was purely fortuitous and did not indicate that defendants had purposefully availed themselves of the privilege of conducting activities within New York, thus invoking benefits and protection of New York's laws; thus, the “presence” of the policies did not alone provide
sufficient contacts with New York to support jurisdiction of New York's courts over defendants. Attanasio v.
Ferre, 1977, 93 Misc.2d 661, 401 N.Y.S.2d 685, appeal dismissed 68 A.D.2d 981, 414 N.Y.S.2d 232. Courts
13.5(11)
39. Appearance in court--In general
Nonresident corporate defendant's removal of action from state court to federal court based on diversity of citizenship amounted to appearance and, since defendant could have but did not seek to dismiss complaint in state
court for lack of personal jurisdiction, defendant consented to district court's jurisdiction over it, notwithstanding
its contention that it lacked sufficient contacts with state. Lomaglio Associates Inc. v. LBK Marketing Corp.,
1995, 876 F.Supp. 41. Removal Of Cases
112
Physician did not subject himself to personal jurisdiction in malpractice action, even though his professional
Page 130
corporation brought action to collect fees for services giving rise to malpractice action, and even though corporation opposed plaintiff's motion to consolidate collection and malpractice actions; subsequent to consolidation of
the actions, physician filed answer raising alleged deficiency of service as affirmative defense. Morgan v. Cent37(3)
ral General Hosp. (2 Dept. 1992) 179 A.D.2d 740, 579 N.Y.S.2d 125. Courts
Appearance by nonresidents as defendants in action pending in United States District Court for Southern District
of New York did not subject such nonresidents to jurisdiction of state court in related suit. Rockwood Nat. Corp.
13.3(4)
v. Peat, Marwick, Mitchell & Co. (2 Dept. 1978) 63 A.D.2d 978, 406 N.Y.S.2d 106. Courts
Surrogate's court had personal jurisdiction over nominated executrix of mother's will, domiciled in Israel and
pursuing probate of will in that country, for purposes of motion by New York administratrix to enjoin executrix
from continuing probate; executrix had submitted to jurisdiction of New York courts by commencing suit in
New York surrogate's court, seeking to vacate letters of administration on grounds that mother died testate. In re
37(3)
Cohen, 2004, 5 Misc.3d 869, 786 N.Y.S.2d 716. Courts
Tenant's former wife submitted to personal jurisdiction in summary proceeding where she made court appearance, filed legal documents prepared by her future counsel and, when represented by counsel, participated in
lengthy settlement negotiations for which the court granted multiple adjournments. Washington v. Palanzo,
2002, 192 Misc.2d 577, 746 N.Y.S.2d 875. Appearance
19(1)
40. ---- Change of venue motion, appearance in court
Change of venue motion by defendant in defamation action did not constitute an “appearance” so as to waive defense of lack of personal jurisdiction. Montgomery v. Minarcin (3 Dept. 1999) 263 A.D.2d 665, 693 N.Y.S.2d
293. Appearance
8(4)
41. ---- Appearance for discovery, appearance in court
Attendance at depositions in New York was not sufficient by itself to establish personal jurisdiction under New
York's long-arm statute. Sole Resorts, S.A. de C.V. v. Allure Resorts Management, LLC, 2005, 397 F.Supp.2d
426, vacated and remanded 450 F.3d 100, on remand 2007 WL 646288. Federal Courts
86
42. Principal and agent
Under New York law, in a suit between an agent and his out-of-state principal, a court cannot exercise jurisdiction over the defendant-principal based on the plaintiff-agent's own activities within the state. Pro-Fac Co-op.,
Inc. v. Alpha Nursery, Inc., 2002, 205 F.Supp.2d 90. Courts
13.6(1)
43. Corporate officers
Under New York long-arm statute, fact that corporation is subject to jurisdiction does not, ipso facto, subject
every corporate officer to personal jurisdiction. Reynolds Corp. v. National Operator Services, Inc., 1999, 73
Page 131
13.6(4)
New York court lacked personal jurisdiction over former corporate officer in New York corporation's action
against officer arising from its buy-out agreement with officer, despite existence of New York choice of laws
provision in agreement; corporation's causes of action arose out of agreement executed some five or six months
after former officer ceased his activities as corporate officer and director. EAC Systems, Inc. v. Chevie (3 Dept.
1989) 154 A.D.2d 813, 546 N.Y.S.2d 252, appeal denied 75 N.Y.2d 705, 552 N.Y.S.2d 927, 552 N.E.2d 175.
13.6(4)
Courts
44. Matrimonial actions--In general
Husband was not fraudulently induced into consenting to jurisdiction in New York by wife's representations that
the action was to be merely an uncontested divorce, although he was not represented by counsel when he consented to jurisdiction in New York, where complaint specifically demanded equitable distribution of marital
property, along with a judgment of divorce on grounds of abandonment; while abandonment may have occurred
in Singapore, and property sought to be distributed was located there as well, husband, a successful businessman, was free and financially able to engage counsel, at least to find out what “equitable distribution” meant.
Warner v. Houghton (1 Dept. 2007) 43 A.D.3d 376, 841 N.Y.S.2d 499, affirmed 10 N.Y.3d 913, 862 N.Y.S.2d
1416(4)
321, 892 N.E.2d 385. Divorce
Personal jurisdiction over defendant husband, who made no showing that he justifiably relied upon then-existing
law, was properly acquired in divorce action pursuant to this section that could be given retroactive effect because of previous judgment of separation, prior to which parties spent their entire married life together in New
York. Sciame v. Sciame (2 Dept. 1976) 54 A.D.2d 977, 389 N.Y.S.2d 30. Divorce
4
Husband should not be denied benefits of long-arm statute in matrimonial proceeding merely because he chose
not to go through formality of seeking support from his wife. Abbott v. Abbott, 1984, 125 Misc.2d 837, 480
N.Y.S.2d 185. Divorce
65
Though this section confers personal jurisdiction in matrimonial actions sounding in contract, it did not confer
personal jurisdiction in matrimonial action in which plaintiff was not seeking contractual remedies or relief, but
was seeking to incorporate separation agreement in judgment of divorce, and in which there was no demand for
support or alimony and party who was entitled to support under the separation agreement was not a resident or
domiciliary of New York. Guccione v. Guccione, 1979, 100 Misc.2d 212, 417 N.Y.S.2d 633. Divorce
65
This section permitting court to exercise personal jurisdiction over any nondomiciliary or his executor or administrator who in person or through an agent transacts any business within state is available to litigants in the family court. Lawrenz v. Lawrenz, 1971, 65 Misc.2d 627, 318 N.Y.S.2d 610. Courts
175
45. ---- Due process considerations, matrimonial actions
Even assuming that putative wife established statutory predicate for jurisdiction over nondomiciliary putative
Page 132
husband in matrimonial action involving demand for financial relief, it would offend due process to subject putative husband to jurisdiction since his contacts with New York with respect to alleged marriage were so attenuated; putative husband left New York in 1985, allegedly resumed status as married couple in Georgia, and thereafter resided in two other states. Babu v. Babu (3 Dept. 1996) 229 A.D.2d 758, 645 N.Y.S.2d 899. Constitutional
3965(1); Divorce
65
Law
This section subjecting nonresident nondomiciliary to in personam jurisdiction in matrimonial action without
personal service in the state is consistent with due process requirements in view of public policy to be served,
though in particular circumstances application of this section might well present constitutional problems.
3964; Divorce
Browne v. Browne (4 Dept. 1976) 53 A.D.2d 134, 385 N.Y.S.2d 983. Constitutional Law
4
Sufficient minimum contacts with New York must be found in order to exercise long-arm jurisdiction over a
non-resident defendant in matrimonial actions or family court proceedings, so that traditional notions of fair play
and substantial justice were not offended. Senhart v. Senhart, 2004, 4 Misc.3d 862, 782 N.Y.S.2d 576, affirmed
18 A.D.3d 642, 795 N.Y.S.2d 642. Divorce
62(5)
Non-resident husband's minimal contacts with New York were insufficient to satisfy due process requirements
for exercise of long-arm jurisdiction over him in wife's matrimonial action seeking judgment of divorce, where
he asserted that he never resided in New York, and, even taking wife's allegations as true, he had not resided in
New York for approximately 13 years before commencement of action. Senhart v. Senhart, 2004, 4 Misc.3d 862,
782 N.Y.S.2d 576, affirmed 18 A.D.3d 642, 795 N.Y.S.2d 642. Constitutional Law
3965(1); Divorce
62(5)
46. ---- Construction with other laws, matrimonial actions
Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) provided independent basis for personal jurisdiction over non-resident father, in resident mother's action for custody of minor children; thus, alleged failure
to satisfy Civil Practice Law and Rules' criteria for exercise of personal jurisdiction over father did not preclude
family court's exercise of such jurisdiction. Karen W. v. Roger S., 2004, 8 Misc.3d 285, 793 N.Y.S.2d 693.
Child Custody
742
47. ---- Accrual under laws of state, matrimonial actions
Obligation of father to pay child support does not “accrue” under laws of New York upon mother becoming
pregnant or birth of child in New York within this section allowing personal jurisdiction over nonresident defendants in matrimonial actions or family court proceedings which accrue under laws of New York, thus courts
in New York had no jurisdiction over nonresident defendant's person under the rule. Nilsa B. B. v. Clyde Blackwell H. (2 Dept. 1981) 84 A.D.2d 295, 445 N.Y.S.2d 579. Children Out-of-wedlock
36
Subsequent divorce secured by husband in New Jersey did not moot wife's prior divorce action in New York so
as to negate existence of support as an issue in wife's action where wife, as party seeking support, was a domicil-
Page 133
iary of New York and husband's obligation to support her accrued under laws of New York so that service upon
him in New Jersey was sufficient to confer personal jurisdiction on court in New York. Geiser v. Geiser, 1980,
1447(1)
102 Misc.2d 862, 424 N.Y.S.2d 852. Divorce
48. ---- Agreement executed in state, matrimonial actions
Personal jurisdiction existed over divorced husband in wife's action to recover for arrears due under a separation
agreement incorporated into a Mexican decree of divorce, and for an increase in amount of child support payable, even though husband was a resident of England, pursuant to this section governing personal jurisdiction in
matrimonial actions, where divorced wife resided in New York, which was the matrimonial domicile of the
parties before their separation, and the obligation to pay support accrued under an agreement executed in New
1449
York. Avery v. Avery (2 Dept. 1981) 81 A.D.2d 849, 438 N.Y.S.2d 853. Divorce
While the execution of a separation agreement in New York may serve as a proper predicate for in personam jurisdiction over a nonresident spouse, in an action based on the separation agreement, it is not a sufficient basis for
personal jurisdiction over a nonresident spouse in an action for divorce unless jurisdiction can be sustained under the matrimonial long-arm statute. Pitrowski v. Pitrowski, 1979, 97 Misc.2d 755, 412 N.Y.S.2d 316. Divorce
65
Where separation agreement was entered into and executed in New York City and personal service was had on
husband in Ohio, the Supreme Court had jurisdiction over person of defendant in wife's suit seeking to enforce
agreement. Kassuto v. Yalon, 1974, 77 Misc.2d 132, 353 N.Y.S.2d 291. Divorce
965
49. ---- Residence, matrimonial actions
Mother had established claim for support accruing under laws of New York, thus conferring state court's jurisdiction over nonresident father; order of filiation issued at time father was New York resident, specifically reserved rights of either party to reapply for determination of child support. Spak v. Specht (3 Dept. 1995) 216
A.D.2d 705, 628 N.Y.S.2d 207. Child Support
507; Children Out-of-wedlock
68
Where wife was New York resident at time of her application to increase maintenance and support levels
provided for in separation agreement, New York was matrimonial domicile of parties prior to their separation,
and claim of support accrued under laws of New York, trial court could properly exercise jurisdiction over nonresident, nondomiciliary husband, especially where husband failed to raise defense of lack of personal jurisdiction at hearing on application. Morgan v. Morgan (1 Dept. 1983) 95 A.D.2d 593, 467 N.Y.S.2d 593. Child Support
507
Where party seeking support was resident of and domiciled in New York, New York was matrimonial domicile
of parties before their separation, and obligation to pay support accrued under laws of New York, jurisdiction of
both person and subject matter was properly obtained by New York court in matrimonial action pursuant to this
section extending long-arm personal jurisdiction to matrimonial actions. Gersten v. Gersten (1 Dept. 1978) 61
A.D.2d 745, 401 N.Y.S.2d 806. Divorce
59; Divorce
65
Page 134
From fact that wife was dwelling in New York when she commenced divorce action, presumption arose that she
was deemed resident thereof although her spouse resided elsewhere. Small v. Small, 1978, 96 Misc.2d 469, 409
109.2
N.Y.S.2d 379. Divorce
50. ---- Matrimonial domicile, matrimonial actions
Although husband and wife resided together in state of New York between 2001 and 2002, New York was not
their “matrimonial domicile” before their separation, as would warrant exercise of long-arm jurisdiction over
non-resident husband in wife's matrimonial action seeking judgment of divorce, where after 2002, for a period
of five years, the parties jointly rented an apartment in Florida into which they moved their possessions and pets,
and which was listed as their residence on federal and New York State tax returns. Julien v. Julien (1 Dept.
65
2010) 78 A.D.3d 584, 912 N.Y.S.2d 42. Divorce
Evidence in divorce action was insufficient to establish that New York was parties' marital domicile prior to
their separation; at best, evidence indicated that the parties had maintained dual residences in New York and
Florida 13 years before the commencement of the action, but indicated on their joint tax returns that their matrimonial domicile was Florida. Senhart v. Senhart (2 Dept. 2005) 18 A.D.3d 642, 795 N.Y.S.2d 642. Divorce
124.3
Husband failed to establish personal jurisdiction under statute governing personal jurisdiction over non-resident
defendant in matrimonial actions or family court proceedings; well before parties separated, matrimonial domicile had been Vermont, where, among other things, defendant had continuously resided, parties had drivers' licenses and registered their cars, husband applied for and became citizen, and parties' residence was listed as
Federal, Vermont. Lipski v. Lipski (1 Dept. 2002) 293 A.D.2d 344, 740 N.Y.S.2d 324. Divorce
62(2); Divorce
62(5)
New York may exercise long-arm jurisdiction over nondomiciliary defendant in matrimonial action involving
demand for financial relief provided New York was matrimonial domicile of parties before their separation, or
defendant abandoned plaintiff in New York, or claim for financial relief accrued under laws of New York or an
agreement executed in this state and provided it is shown that the defendant has certain minimum contacts with
New York. Babu v. Babu (3 Dept. 1996) 229 A.D.2d 758, 645 N.Y.S.2d 899. Divorce
65
Trial court had jurisdiction over nonresident husband in matrimonial action, where New York state was last substantial marital domicile before parties separated; parties continued to maintain marital residence in New York
until June 1992 when husband moved out, and wife commenced action for divorce in December 1992. Staron v.
Staron (2 Dept. 1995) 215 A.D.2d 646, 629 N.Y.S.2d 46, leave to appeal dismissed 87 N.Y.2d 1055, 644
N.Y.S.2d 147, 666 N.E.2d 1061. Divorce
65
Court hearing matrimonial action had personal jurisdiction over nonresident husband who had previously maintained matrimonial domicile in New York, even though parties had resided elsewhere between New York domicile and separation; husband had had sufficient contacts with New York after wife's return to that state to satisfy
constitutional due process concerns. Levy v. Levy (3 Dept. 1993) 185 A.D.2d 15, 592 N.Y.S.2d 480, appeal dis-
Page 135
missed 82 N.Y.2d 707, 601 N.Y.S.2d 587, 619 N.E.2d 665. Constitutional Law
3965(1); Divorce
65
Trial court in action to modify divorce decree lacked personal jurisdiction over nonresident husband where, although couple had resided within New York during six years of their marriage, they subsequently lived in Connecticut for eight years, where separation agreement and divorce judgment were entered into eight years before
present action; fact that husband may have consented to and assisted his former wife and children in moving
back to New York, his visits to his children, their schools and therapist in the state, and his occasional presence
at business meetings there did not establish sufficient contacts with state to justify extending in personam juris65
diction over him. Klette v. Klette (1 Dept. 1990) 167 A.D.2d 197, 561 N.Y.S.2d 580. Divorce
Trial court lacked personal jurisdiction over Michigan resident in action to vacate alimony, child support, and
property distribution provisions of property settlement agreement that was incorporated into Michigan divorce
judgment; claims did not accrue under laws of New York, which was also not parties' marital domicile as they
lived in New York for less than two months and thereafter moved to Michigan, where they resided for six years
before separation. Sovansky v. Sovansky (2 Dept. 1988) 139 A.D.2d 724, 527 N.Y.S.2d 475. Divorce
1457(1)
In view of long period during which New York had been parties' marital domicile, their relatively recent departure from state and short time wife lived without it, contacts parties retained in New York during their absence
and fact that they lived in three different jurisdictions for brief periods after leaving New York, facts afforded
sufficient basis to support New York's exercise of in personam jurisdiction. Paparella v. Paparella (4 Dept.
1980) 74 A.D.2d 106, 426 N.Y.S.2d 610. Divorce
62(6)
New York had no jurisdiction over action to modify Texas divorce decree where last substantial matrimonial
domicile before separation took place was in Texas and separation agreement entered into in New York was incorporated into Texas agreement. Richardson v. Richardson (2 Dept. 1977) 58 A.D.2d 861, 396 N.Y.S.2d 689.
Divorce
1457(1)
Words “before their separation” within this section, which authorizes exercise of personal jurisdiction over nonresident defendants in matrimonial actions brought in state “if the party seeking support is a resident of or domiciled in this state at the time such demand is made, provided that this state was the matrimonial domicile of the
parties before their separation,” does not refer to any time before their separation, but, rather, to a period shortly
before separation or the moment just prior to separation. Lieb v. Lieb (2 Dept. 1976) 53 A.D.2d 67, 385
N.Y.S.2d 569. Husband And Wife
308
New York was not last substantial matrimonial domicile before husband and wife separated, as would warrant
exercise of long-arm jurisdiction over non-resident husband in wife's matrimonial action seeking judgment of divorce; there was no evidence that husband and wife ever resided in New York, and wife herself asserted that she
visited husband in Florida in response to his request that she live there with him permanently. Senhart v. Senhart, 2004, 4 Misc.3d 862, 782 N.Y.S.2d 576, affirmed 18 A.D.3d 642, 795 N.Y.S.2d 642. Divorce
62(6)
Page 136
Even assuming that wife established, in matrimonial action seeking judgment of divorce, that New York was
parties' marital domicile, non-resident husband's residence in New York 13 years prior to commencement of action, and his visitation of their child in New York, was not sufficient to confer long-arm jurisdiction over him
premised upon parties' marital domicile having been located in New York. Senhart v. Senhart, 2004, 4 Misc.3d
62(5)
862, 782 N.Y.S.2d 576, affirmed 18 A.D.3d 642, 795 N.Y.S.2d 642. Divorce
Personal jurisdiction existed over defendant wife in matrimonial proceeding pursuant to long-arm statute, since
wife, who resided in New York with her husband for over one year and who had given birth to one child in New
York, could not deny that she had exercised those certain minimum contacts with state so that exercise of jurisdiction did not offend traditional notions of fair play and substantial justice. Abbott v. Abbott, 1984, 125
65
Misc.2d 837, 480 N.Y.S.2d 185. Divorce
Long-arm statute conferring on Family Court personal jurisdiction over a respondent who is no longer a resident
of New York provided New York was the matrimonial domicile of the parties before their separation permitted
wife to obtain jurisdiction over husband, who was domiciled in New Jersey but who was married in New York
and maintained marital domicile there for almost seven years before parties moved to New Jersey four years prior to their separation, and because husband was employed by corporation located in New York and maintained
bank account in New York, husband had sufficient contacts with New York to satisfy due process. Ifland v. Ifland, 1983, 120 Misc.2d 820, 467 N.Y.S.2d 27. Constitutional Law
3965(1); Divorce
65
Nonresident husband, who had been married in state, who lived with wife for 22 years in state and whose wife
had been granted judgment of separation in state, had sufficient contacts with state so as to permit state court to
entertain wife's request for a de novo determination as to support and maintenance in a divorce proceeding
without offending traditional notions of fair play and substantial justice. Crofton v. Crofton, 1980, 106 Misc.2d
546, 434 N.Y.S.2d 116. Divorce
590
Enforcement proceedings before the Family Court provides forum through which a party may pursue an order or
decree granting alimony, and so would come within purpose of this section allowing a New York resident to exercise personal jurisdiction over an absent defendant for purposes of receiving support so long as New York was
matrimonial domicile of parties before their separation. Pearson v. Pearson, 1978, 97 Misc.2d 477, 411 N.Y.S.2d
807. Divorce
1002; Divorce
1052
New York court had no personal jurisdiction over husband in action brought by wife for support where husband
allegedly abandoned wife in Virginia and where husband was presently a resident of France; fact that parties had
resided in New York from 1943 to 1957 was insufficient to confer personal jurisdiction. Lieb v. Lieb, 1976, 86
Misc.2d 75, 381 N.Y.S.2d 757, affirmed 53 A.D.2d 67, 385 N.Y.S.2d 569. Husband And Wife
308
51. ---- Child custody and visitation, matrimonial actions
Mother's actions in New York state courts seeking enforcement of valid custody and visitation orders entered by
Florida courts with respect to children domiciled in New York were actions “within the state,” as required to
convey personal jurisdiction over mother under jurisdictional provisions of child protection statute. Matter of
Page 137
Sayeh R., 1997, 91 N.Y.2d 306, 670 N.Y.S.2d 377, 693 N.E.2d 724. Infants
2066
Mother's quest for affirmative relief in New York state courts, in form of enforcement of valid custody and visitation orders entered by Florida courts, together with her enlistment of aid of local police in attempt to enforce
her visitation rights in state, was sufficient to subject mother to long-arm jurisdiction of state courts with respect
to neglect petition alleging that her attempts to enforce Florida orders jeopardized children's mental and emo2066
tional health. Matter of Sayeh R., 1997, 91 N.Y.2d 306, 670 N.Y.S.2d 377, 693 N.E.2d 724. Infants
52. Paternity proceedings
Mother who made vague and unsubstantiated allegation that putative father lived in New York for unspecified
period of time failed to establish that putative father was former resident or domiciliary of state and that exercise
of personal jurisdiction was proper under statute allowing long-arm jurisdiction in family court proceeding involving demand for support, if claim for support accrued under laws of state, whether or not parent was any
longer resident or domiciliary of state. Shirley D. v. Carl D. (2 Dept. 1996) 224 A.D.2d 60, 648 N.Y.S.2d 650.
36
Children Out-of-wedlock
Court lacked subject-matter jurisdiction over paternity proceeding involving child born in Seattle, Washington,
to resident of that city, and person no longer resident or to be found in New York, absent allegation that petitioner was ever present in New York, or that parties had sexual intercourse resulting in conception there. Rebecca
B.W. v. Stephen B., 1986, 131 Misc.2d 651, 501 N.Y.S.2d 272. Children Out-of-wedlock
36
Change in terminology of this section, by substituting words “claim for” for “obligation to pay,” extends benefit
of long-arm jurisdiction to paternity actions. Gordon J.Y. v. Erin L.M., 1984, 124 Misc.2d 677, 477 N.Y.S.2d
579. Children Out-of-wedlock
36
Jurisdiction could not be exercised over alleged father in paternity proceeding pursuant to rule allowing personal
jurisdiction over nonresident defendant in matrimonial actions or Family Court proceedings, since mother's entitlement to support from alleged father for her child had not yet been legally established. Anonymous v. Anonymous, 1980, 104 Misc.2d 611, 428 N.Y.S.2d 608. Children Out-of-wedlock
36
53. Pleadings
Arrestee's allegations that Delaware local police department issued warrants, executed warrants, sought extradition in New York, and made New York court appearances, were conclusory nonfact-specific jurisdictional allegation that were insufficient, without any additional factual detail, to plead facts supporting a prima facie case of
specific personal jurisdiction under New York's long-arm statute on basis that department regularly solicited
business, or engaged in any other persistent course of conduct in New York in negligence and gross negligence
action arising after Delaware State Police (DSP) checked the wrong address for arrestee and local police department erroneously issued a warrant for his arrest for failure to re-register as a sex offender. Doe v. Delaware
State Police, 2013, 2013 WL 1431526. Federal Courts
94
Page 138
New York corporate sellers' allegations that California former chief executive officer (CEO) of California corporate buyer fraudulently misrepresented in e-mails sent from California to New York that sellers would be paid
under two contracts for sale of pizza boxes in California and that sellers purportedly failed to fully perform under contracts were not sufficient to support exercise of personal jurisdiction over CEO, under revenue requirements of New York's long-arm statute, since sellers did not allege that CEO regularly did business or solicited
business in New York, engaged in any other persistent course of conduct in New York, derived substantial revenue from goods used or consumed or services rendered in New York, or derived substantial revenue from interstate or international commerce. Mangia Media Inc. v. University Pipeline, Inc., 2012, 846 F.Supp.2d 319. Fed94
eral Courts
Pleadings sufficiently alleged that Kuwaiti defendant was a principal of New York shipper under the terms of
the bill of lading contract with New York shipping company, and therefore was considered to have consented to
jurisdiction under New York's long-arm statute on the basis of contract's forum selection clause. Maersk, Inc. v.
86
Neewra, Inc., 2008, 554 F.Supp.2d 424. Federal Courts
Allegations of Kuwaiti defendant's involvement, either as a principal or a co-conspirator in alleged shipping
frauds, established prima facie case of personal jurisdiction over Kuwaiti defendant under New York's long-arm
statute in suit arising out of a series of international shipping frauds; either defendant attended a meeting connected with a fraud or he did not attend the meeting, in which case he lied under oath when he submitted his affidavit in order to trick the court as to his identity, and to shield a codefendant from liability. Maersk, Inc. v.
Neewra, Inc., 2008, 554 F.Supp.2d 424. Federal Courts
86
Allegations that principal in foreign investment funds violated his fiduciary duties to funds in connection with
the making and management of side-by-side investments contemplated by operating agreement and in his dealings with one fund's general partner failed to make out a prima facie case for the exercise of personal jurisdiction against funds under New York long arm statute for aiding and abetting principal's breaches of fiduciary
duty; pleadings did not allege that claims arose out of the transaction by either of any business in New York or
that either fund committed tortious acts outside the state. International Equity Investments, Inc. v. Opportunity
Equity Partners, Ltd., 2007, 475 F.Supp.2d 456. Federal Courts
82
To establish personal jurisdiction over foreign defendant on conspiracy theory under New York long-arm statute, plaintiff's conspiracy allegations must be based upon direct or circumstantial evidence, or upon reasonable
inferences therefrom. In re Med-Atlantic Petroleum Corp., 1999, 233 B.R. 644. Courts
32.5(2)
54. Raising defense of lack of jurisdiction
There was no procedural requirement that plaintiff affirmatively plead and prove facts sufficient to establish
long-arm jurisdiction over out-of-state defendant, but, rather, lack of long-arm jurisdiction had to be raised by
defendant in opposition to plaintiff's summary judgment motion. Cadle Co. v. Ayala (2 Dept. 2008) 47 A.D.3d
919, 850 N.Y.S.2d 563. Courts
32.5(2); Judgment
183
Virginia domiciliary, adjudged to be owner of real property, preserved claim that court lacked personal jurisdic-
Page 139
tion, in suit by putative owner seeking to recover property taxes paid on property, by asserting lack of jurisdiction as affirmative defense when answering complaint, even though domiciliary had also counterclaimed, alleging that suit was malicious and frivolous; counterclaim was related to plaintiff's claim and thus required to be
brought, to avoid collateral estoppel if counterclaim was raised later. N.A.S. Holdings, Inc. v. Pafundi (3 Dept.
37(3)
2004) 12 A.D.3d 751, 784 N.Y.S.2d 218. Courts
55. Burden of proof, generally
New York resident had to establish jurisdiction over nondomiciliary pursuant to New York's long-arm statute by
preponderance of evidence, where New York resident had been afforded extensive jurisdictional discovery.
76.1
PaineWebber Inc. v. Westgate Group, Inc., 1990, 748 F.Supp. 115. Federal Courts
Plaintiff bears burden of proving that court has jurisdiction over the defendant. Birmingham Fire Ins. Co. of
Pennsylvania v. KOA Fire & Marine Ins. Co., Ltd., 1983, 572 F.Supp. 962. See, also, Silverman v. Worsham
Bros. Co., Inc., D.C.N.Y.1984, 595 F.Supp. 959; Birmingham Fire Ins. Co. of Pennsylvania v. KOA Fire &
Marine Ins. Co., Ltd., D.C.N.Y. 1983, 572 F.Supp. 969; Trafalgar Capital Corp. v. Oil Producers Equipment
Corp., D.C.N.Y.1983, 555 F.Supp. 305; China Union Lines, Ltd. v. American Marine Underwriters, Inc.,
D.C.N.Y.1978, 454 F.Supp. 198; Louis Marx & Co., Inc. v. Fuji Seiko Co., Ltd., D.C.N.Y.1978, 453 F.Supp.
385; Merkel Associates, Inc. v. Bellofram Corp., D.C.N.Y.1977, 437 F.Supp. 612; Pavlo v. James,
D.C.N.Y.1977, 437 F.Supp. 125; G.S.C. Associates, Inc. v. Rogers, D.C.N.Y.1977, 430 F.Supp. 148; Security
Nat. Bank v. Ubex Corp. Ltd., D.C.N.Y.1975, 404 F.Supp. 471. Federal Courts
96
Plaintiff has burden of establishing by preponderance of the evidence that a defendant is subject to personal jurisdiction under this section. Bialek v. Racal-Milgo, Inc., 1982, 545 F.Supp. 25. See, also, Pneuma-Flo Systems,
Inc. v. Universal Machinery Corp., D.C.N.Y.1978, 454 F.Supp. 858. Federal Courts
96
As the parties seeking to assert personal jurisdiction over non-domiciliary, plaintiffs bore the burden of proof on
such issue. Ying Jun Chen v. Lei Shi (2 Dept. 2005) 19 A.D.3d 407, 796 N.Y.S.2d 126. Courts
35
56. Motion to dismiss cause of action
If court relies on pleadings and affidavits alone, plaintiff need only make prima facie showing of jurisdiction in
order to defeat motion to dismiss. Slapshot Beverage Co., Inc. v. Southern Packaging Machinery, Inc., 1997,
96
On motion to dismiss, plaintiffs bear burden of proving jurisdiction, but pleadings and affidavits are to be considered in light most favorable to them. Rios v. Marshall, 1981, 530 F.Supp. 351. Federal Courts
34
Patient failed to make prima facie showing that trial court could exercise personal jurisdiction over physician
pursuant to the long-arm statute, and, thus, dismissal of patient's medical malpractice action, insofar as asserted
against physician, was warranted on ground of lack of personal jurisdiction. Lang v. Wycoff Heights Medical
Center (2 Dept. 2008) 55 A.D.3d 793, 866 N.Y.S.2d 313. Pretrial Procedure
554
Page 140
Plaintiffs met burden of establishing, on non-domiciliary defendant's motion to dismiss for lack of personal jurisdiction, that facts might exist to exercise personal jurisdiction over non-domiciliary and made sufficient start
to warrant further discovery on the issue of personal jurisdiction over him in personal injury action. Ying Jun
683
Chen v. Lei Shi (2 Dept. 2005) 19 A.D.3d 407, 796 N.Y.S.2d 126. Pretrial Procedure
The burden on plaintiffs on non-domiciliary defendant's motion to dismiss for lack of jurisdiction does not entail
making a prima facie showing of personal jurisdiction; rather, the plaintiffs need only demonstrate that facts
“may exist” to exercise personal jurisdiction over the defendant. Ying Jun Chen v. Lei Shi (2 Dept. 2005) 19
683
A.D.3d 407, 796 N.Y.S.2d 126. Pretrial Procedure
Plaintiffs made insufficient showing of personal jurisdiction to overcome motion to dismiss complaint on jurisdictional grounds, where neither complaint nor plaintiffs' opposition papers set forth even conclusory allegations
regarding prospective basis upon which lower court could exercise in personam jurisdiction over defendant; although plaintiffs noted that jurisdiction could often be obtained through potential defendant's parent or subsidiary corporation, they wholly failed to even allege that any such corporation existed in present case. Mandel v.
684
Busch Entertainment Corp. (2 Dept. 1995) 215 A.D.2d 455, 626 N.Y.S.2d 270. Pretrial Procedure
57. Service of process
Sole act by nonresident defendants of paying for process to be issued in New York in connection with defendants' prior Texas state-court action was insufficient to subject defendants to personal jurisdiction under provision
of New York long-arm statute making jurisdiction appropriate when person transacted business within New
York. 3H Enterprises, Inc. v. Dwyre, 2001, 182 F.Supp.2d 249. Federal Courts
76.15
If conditions of New York long-arm statute are met, service may be made outside New York in the same manner
as service is made within the state. American Institute of Certified Public Accountants v. Affinity Card, Inc.,
1998, 8 F.Supp.2d 372. Process
83
Service of process on Palestine Liberation Organization's (PLO) permanent observer to the United Nations and
head of its activities in New York was sufficient to properly effect service on PLO, in that the PLO was “doing
business” in New York under New York long-arm statute such that it was “present” in New York, and thus it
was reasonable to conclude that the observer was authorized to accept service, even though the observer had not
expressly been authorized to accept service. Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave
Achille Lauro in Amministrazione Straordinaria, 1990, 739 F.Supp. 854, appeal granted 921 F.2d 21, vacated on
other grounds 937 F.2d 44, on remand 795 F.Supp. 112. International Law
10.43
Valid service of process, by itself, does not suffice to establish personal jurisdiction over a foreign corporation.
Holness v. Maritime Overseas Corp. (1 Dept. 1998) 251 A.D.2d 220, 676 N.Y.S.2d 540. Corporations And Business Organizations
3263
58. Jurisdictional discovery
Page 141
Acquiring corporation was not entitled to jurisdictional discovery to determine whether outside counsel for
shareholders of acquired corporation derived substantial revenue from goods used or services rendered in New
York, or from interstate or international commerce, as required to assert personal jurisdiction over non-resident
counsel based on their alleged commission of a tortious act outside the state that injured it in New York, pursuant to New York's long-arm statute, where it failed to assert factual allegations to support personal jurisdiction,
but, rather, merely made a generalized request to conduct discovery that was more akin to a fishing expedition.
1275.5
Leviton Mfg. Co., Inc. v. Reeve, 2013, 2013 WL 504020, amended. Federal Civil Procedure
On motion to dismiss for lack of personal jurisdiction, additional discovery was not warranted in computer services franchising company's action against former franchisee, alleging that website created and maintained by
franchisee constituted the transaction of business within New York for purposes of state long-arm jurisdiction,
where complaint and facts in record established that website was not specifically directed to New York users
alone, and that the site was not commercial in nature. Rescuecom Corp. v. Hyams, 2006, 477 F.Supp.2d 522.
1275.5
Federal Civil Procedure
Tennis umpires made a sufficient start toward establishing personal jurisdiction over administrator of officiating
for worldwide governing body for tennis, under New York statutes providing for jurisdiction over a defendant
who committed a tortious act outside new York which caused injury within New York, to warrant discovery on
issue of personal jurisdiction, where first effect of administrator's alleged discriminatory behavior was experienced by umpires in New York, and administrator's alleged discriminatory conduct occurred in New York.
Hollins v. U.S. Tennis Ass'n, 2006, 469 F.Supp.2d 67. Federal Civil Procedure
96
Tennis umpires made a sufficient start toward establishing personal jurisdiction over worldwide governing body
for tennis, under New York statutes providing for jurisdiction over a defendant engaged in a continuous and systematic course of doing business in New York, or transacting business within New York, to warrant discovery
on issue of personal jurisdiction, where umpires alleged that governing body sanctioned tennis matches held annually in New York and employed tennis umpires for those matches, and there was a substantial nexus between
umpires' claims of discrimination and business governing body transacted in New York. Hollins v. U.S. Tennis
Ass'n, 2006, 469 F.Supp.2d 67. Federal Civil Procedure
96
Further discovery was warranted, to allow shooting victim, as plaintiff, to acquire evidence to establish more
factors for determining personal jurisdiction over out of state firearms retailer, since elements for determining
personal jurisdiction in such a case were fact-intensive. Johnson v. Bryco Arms, 2004, 304 F.Supp.2d 383. Federal Civil Procedure
1275.5
Employee, who was allegedly injured by tissue rewinder while working in New York plant, could conduct limited discovery on issues of whether Italian manufacturer of rewinder “transacted business” in New York, contracted to “supply goods or services” in state, “reasonably expected” its alleged tortious acts of negligently
designing rewinder to have consequences in New York, and generated “substantial revenue” from interstate or
international commerce, so as to support exercise of personal jurisdiction over manufacturer in negligence and
products liability action under New York's long arm statute. Traver v. Officine Meccaniche Toshci SpA, 2002,
Page 142
233 F.Supp.2d 404. Federal Civil Procedure
1275.5
Allegations that company that bought and sold mortgages and its principal were injured in New York by having
their Texas business operations curtailed and related New York litigation ended, and that Texas attorney allegedly responsible for such injuries derived substantial revenue from interstate commerce and should have, and
did, expect his actions to have substantial impact in New York, were sufficient to entitle company and principal
to jurisdictional discovery on issue of whether personal jurisdiction existed over attorney, in action for abuse of
process, under provision of New York long-arm statute allowing for jurisdiction over nonresident committing
tortious act outside of New York and causing injury within that state. 3H Enterprises, Inc. v. Dwyre, 2001, 182
79
F.Supp.2d 249. Federal Courts
For purposes of former employees' motion to dismiss complaint against them for lack of personal jurisdiction,
corporation and its subsidiary had met their light burden under New York law of showing nonfrivolous position
and sufficient start on establishing personal jurisdiction, and further limited discovery on issue of personal jurisdiction was warranted; plaintiffs had shown that defendants might still have been employees of theirs at time of
New York meetings related to employees' new business venture and that business might have been transacted
and torts committed during time period in which meetings were held. PST Services, Inc. v. Larson, 2004, 221
F.R.D. 33. Federal Civil Procedure
96
Opportunity of plaintiffs' co-counsel to depose nonresident federal firearms licensee in a case unrelated to
plaintiffs' action on behalf of shooting victim was not a basis for denying jurisdictional discovery to plaintiffs
for purposes of establishing personal jurisdiction under New York long-arm statute, based on tortious acts outside the state causing injury in state and the nonresident deriving substantial revenue from goods used or consumed in state; even assuming that information gleaned by plaintiffs' co-counsel during course of unrelated litigation could be imputed to plaintiffs, licensee had not been a named party in the earlier action and New York's
jurisdiction over him therefore had not been at issue. Williams v. Beemiller, Inc. (4 Dept. 2012) 100 A.D.3d
143, 952 N.Y.S.2d 333, leave to appeal denied 103 A.D.3d 1190, 959 N.Y.S.2d 85, opinion amended on reargument 103 A.D.3d 1191, 962 N.Y.S.2d 834. Pretrial Procedure
23
Allegations in complaint filed on behalf of shooting victim were sufficient to warrant further discovery regarding personal jurisdiction under New York long-arm statute, based on tortious acts outside the state causing injury in state and the nonresident deriving substantial revenue from goods used or consumed in state; complaint
alleged that nonresident federal firearms licensee unlawfully sold the subject gun in Ohio, that the gun was later
used to shoot and injure victim in New York, that the gun was among at least 140 handguns that licensee sold to
New York convicted felon or his straw purchasers over a relatively short period of time, and that felon engaged
in gun trafficking in New York. Williams v. Beemiller, Inc. (4 Dept. 2012) 100 A.D.3d 143, 952 N.Y.S.2d 333,
leave to appeal denied 103 A.D.3d 1190, 959 N.Y.S.2d 85, opinion amended on reargument 103 A.D.3d 1191,
962 N.Y.S.2d 834. Pretrial Procedure
23
Plaintiff, who founded and ran California corporation which purportedly engaged in missions to recover humans
and human remains at disaster sites, and corporation were not entitled to jurisdictional discovery in defamation
action against residents of New Mexico, where it did not appear from complaint or affidavits that facts essential
Page 143
to justify opposition to motion to dismiss might exist but could not presently be stated. Copp v. Ramirez (1
Dept. 2009) 62 A.D.3d 23, 874 N.Y.S.2d 52, leave to appeal denied 12 N.Y.3d 711, 882 N.Y.S.2d 397, 909
36.1
N.E.2d 1235. Pretrial Procedure
Argument of plaintiff, who founded and ran California corporation which purportedly engaged in missions to recover humans and human remains at disaster sites, and corporation that trial court's ruling that it lacked personal
jurisdiction over defendants, who were residents of New Mexico, in defamation action was premature because it
did not allow discovery on "full scope" of defendants' contacts with forum state was unpreserved for appellate
review, where argument was raised for first time on appeal. Copp v. Ramirez (1 Dept. 2009) 62 A.D.3d 23, 874
N.Y.S.2d 52, leave to appeal denied 12 N.Y.3d 711, 882 N.Y.S.2d 397, 909 N.E.2d 1235. Appeal And Error
185(1)
Further discovery was not warranted on issue of court's long-arm jurisdiction over out-of-state insured in liability insurers' action for declaration that they had no duty to defend or indemnify insured in out-of-state action
when insurers did not make a sufficient start in demonstrating that insured had requisite minimum contacts with
jurisdiction. Insurance Co. of North America v. EMCOR Group, Inc. (1 Dept. 2004) 9 A.D.3d 319, 781
N.Y.S.2d 4. Pretrial Procedure
37
Individual assignment system (IAS) court properly exercised its discretion in limiting jurisdictional discovery to
30 days prior to filing of complaint, since relevant inquiry was whether defendants were doing business in New
York at time action was brought. Edelman v. Taittinger, S.A. (1 Dept. 2004) 8 A.D.3d 121, 778 N.Y.S.2d 484.
Pretrial Procedure
25
General contractor's allegation that general liability policy issued to subcontractor by out-of-state insurer named
general contractor as additional insured was sufficient to warrant further discovery on issue of whether insurer
was subject to personal jurisdiction under “transacts business” provision of long-arm statute; certificate of insurance raised question of fact as to whether insurer knowingly insured New York corporation with respect to work
performed by subcontractor on New York construction project. Bunkoff General Contractors Inc. v. State Auto.
Mut. Ins. Co. (3 Dept. 2002) 296 A.D.2d 699, 745 N.Y.S.2d 247. Pretrial Procedure
37
Burden of establishing personal jurisdiction under long-arm statute does not entail making a prima facie showing of personal jurisdiction; rather, plaintiff need only demonstrate that it made a sufficient start to warrant further discovery, which is within Supreme Court's discretion to grant. Bunkoff General Contractors Inc. v. State
Auto. Mut. Ins. Co. (3 Dept. 2002) 296 A.D.2d 699, 745 N.Y.S.2d 247. Courts
35
In order to require jurisdictional discovery in medical provider's action to recover no-fault benefits for medical
services rendered to passenger in insured vehicle, provider needed to make more than conclusory allegations,
and needed to submit some tangible evidence to substantiate its allegations that insurer, while unauthorized to do
business in New York, was either issuing or delivering insurance contracts to state residents or corporations authorized to do business in the state, or was engaged in any other transaction of business and that action arose out
of that transaction of business. NYC Medical and Neurodiagnostic, P.C. v. Republic Western Ins. Co., 2004, 8
Misc.3d 33, 798 N.Y.S.2d 309. Pretrial Procedure
24
Page 144
New York manufacturer's preliminary showing, that customer ordered some goods from New York, was not sufficient to require Illinois customer to submit to jurisdictional discovery; discovery to look for customer's ownership of property in New York, advertising in New York, or staff, agents, or telephones in New York would have
been “fishing expedition,” it would have required customer to participate in burdensome and expensive disclosure, and it would have contravened purpose of rules limiting extra-territorial personal jurisdiction. Spencer Lam39
inating Corp. v. Denby, 2004, 5 Misc.3d 200, 783 N.Y.S.2d 220. Courts
Shareholder asserting derivative complaint was not entitled, upon out-of-state defendant's motion to dismiss for
lack of personal jurisdiction, to conduct discovery in hope of discovering contacts between defendant and forum;
rather, upon shareholder's concession that he was presently unaware of any particular contacts, complaint
against defendant had to be dismissed for lack of personal jurisdiction. Frankel v. American Film Technologies,
25; Pretrial Procedure
554
Inc., 1998, 177 Misc.2d 279, 675 N.Y.S.2d 837. Pretrial Procedure
59. Hearing
Trial court should have held hearing to determine nature and extent of cruise company president's activities in
New York prior to dismissing action for lack of personal jurisdiction, particularly where cruise company and
dance company had already entered into contract to develop dance cruises before cruise company president's
New York activities related to the cruise took place. Stardust Dance Productions, Ltd. v. Cruise Groups Intern.,
Inc. (3 Dept. 2009) 63 A.D.3d 1262, 881 N.Y.S.2d 192. Pretrial Procedure
678
Trial court erred in determining without hearing that personal jurisdiction over California corporation existed,
where parties submitted sharply conflicting proof concerning where oral agreement at issue was made. Cliffstar
Corp. v. California Foods Corp. (4 Dept. 1998) 254 A.D.2d 760, 677 N.Y.S.2d 864. Corporations And Business
Organizations
3296
60. Default judgment
Although allegations against Venezuelan securities firm and its chief executive officer, if true, satisfied jurisdictional requirements of New York's long-arm statute, district court should have determined whether defendants
had in fact done what was alleged in complaint before entering default judgment against them. Credit Lyonnais
Securities (USA), Inc. v. Alcantara, C.A.2 (N.Y.)1999, 183 F.3d 151. Federal Courts
97
61. Postponement
Author's suit asserting declaratory claims against Saudi Arabian citizen, who had obtained default judgment
against author in libel lawsuit filed in England, did not warrant postponement on ground that legislature was
considering amendment to New York's long-arm statute that could confer jurisdiction over Saudi citizen, since
passage of bill was entirely of uncertain speculation, and if new bill was signed into law, plaintiff could file new
action or move to reopen judgment and amend complaint. Ehrenfeld v. Mahfouz, C.A.2 (N.Y.)2008, 518 F.3d
102. Federal Courts
86
61.3. Res judicata
Page 145
Earlier dismissals in state and federal courts, for lack of personal jurisdiction, of actions brought by original
seller of diamond against nonresident buyer in resale transaction, had res judicata effect on issue of whether jurisdiction existed under New York's long-arm statute, though the dismissals were not adjudications on the merits
of a claim, where original seller did not claim that the facts relevant to nonresident defendant's amenability to
New York long-arm jurisdiction had changed since prior cases had been decided. Stengel v. Black, C.A.2
570(9); Judgment
(N.Y.)2012, 486 Fed.Appx. 181, 2012 WL 2346226, Unreported. Judgment
828.9(5)
61.5. Waiver
By failing to contend that there was no personal jurisdiction over the corporate defendants in their cross-motion
to dismiss plaintiff's breach of contract action on the ground of lack of personal jurisdiction, individual defendants waived their challenge to whether the corporate defendants were subject to personal jurisdiction. Klein v.
37(1)
Educational Loan Servicing, LLC (2 Dept. 2010) 71 A.D.3d 957, 897 N.Y.S.2d 220. Courts
62. Review
Whether provision of New York's long-arm statute conferring jurisdiction over non-domiciliary who transacted
business within state, if cause of action arose from non-domiciliary's state transactions, permitted exercise of
personal jurisdiction in New York author's declaratory judgment action challenging enforceability of foreign default judgment in United States over Saudi Arabian citizen who obtained default judgment in English libel lawsuit was unsettled question of New York law that was significant, implicated important public policy for state,
and was likely to be repeated, and therefore certification of question to New York Court of Appeals was warranted. Ehrenfeld v. Mahfouz, C.A.2 (N.Y.)2007, 489 F.3d 542, certified question accepted 9 N.Y.3d 838, 840
N.Y.S.2d 754, 872 N.E.2d 866, certified question answered 9 N.Y.3d 501, 851 N.Y.S.2d 381, 881 N.E.2d 830,
answer to certified question conformed to 518 F.3d 102. Federal Courts
392
II. ACTS BY AGENT OR REPRESENTATIVE
<Subdivision Index>
Acts in corporate capacity, corporate personnel 111
Acts of principal imputed to agent 101
Agent as plaintiff 102
Allegations required, co-conspirators 107
Attorneys 104
Authority to bind principal, determination of agency relationship 98
Benefit to principal, determination of agency relationship 95
Bootstrap doctrine, acts by agent or representative 102
Brokers 105
Burden of proof 100, 108
Burden of proof - Co-conspirators 108
Burden of proof - Determination of agency relationship 100
Clubs and associations 103
Page 146
Co-conspirators 106-109
Co-conspirators - In general 106
Co-conspirators - Allegations required 107
Co-conspirators - Burden of proof 108
Co-conspirators - Sufficiency of evidence 109
Construction and application 91
Corporate personnel 110-115
Corporate personnel - In general 110
Corporate personnel - Acts in corporate capacity 111
Corporate personnel - Directors 113
Corporate personnel - Fiduciary shield doctrine 114
Corporate personnel - Officers 115
Corporate personnel - Primary actor, generally 112
Dealers and distributors 116
Determination of agency relationship 92-100
Determination of agency relationship - In general 92
Determination of agency relationship - Authority to bind principal 98
Determination of agency relationship - Benefit to principal 95
Determination of agency relationship - Burden of proof 100
Determination of agency relationship - Dominion or control 97
Determination of agency relationship - Knowledge or consent 96
Determination of agency relationship - Particular purposeful activities 94
Determination of agency relationship - Purposeful activities 93
Determination of agency relationship - Request of principal 99
Directors, corporate personnel 113
Dominion or control, determination of agency relationship 97
Executors and administrators 117
Fiduciary shield doctrine, corporate personnel 114
Freight forwarders 118
Government officers or employees 119
Independent contractors 120
Knowledge or consent, determination of agency relationship 96
Licensees and licensors 121
Limited partnerships 125
Officers, corporate personnel 115
Parent and subsidiary corporations 122-123
Parent and subsidiary corporations - In general 122
Parent and subsidiary corporations - Particular parent and subsidiary corporations 123
Particular parent and subsidiary corporations 123
Particular purposeful activities, determination of agency relationship 94
Partners 124-125
Partners - In general 124
Partners - Limited partnerships 125
Pleadings 130
Pleadings, co-conspirators 107
Page 147
Predecessor and successor entities 129
Primary actor, generally, corporate personnel 112
Purposeful activities, determination of agency relationship 93
Request of principal, determination of agency relationship 99
Sales representative 126
Shareholders 127
Spouses 128
Subsidiary corporations, acts by agent or representative 122-123
Successor entities, acts by agent or representative 129
Sufficiency of evidence, co-conspirators 109
91. Construction and application
Corporation may act as an agent for an individual for purposes of New York long-arm statute authorizing the exercise of jurisdiction over nondomiciliaries for tort and contract claims arising from a defendant's transaction of
business in the state. First Capital Asset Management, Inc. v. Brickellbush, Inc., 2002, 218 F.Supp.2d 369, on
13.6(4); Courts
13.6(6)
reconsideration 219 F.Supp.2d 576, affirmed 385 F.3d 159. Courts
Just as actions of corporate agent may be sufficient to confer jurisdiction on corporation, corporation can act as
agent for individual for purposes of establishing jurisdiction under New York long-arm statute. Reynolds Corp.
v. National Operator Services, Inc., 1999, 73 F.Supp.2d 299. Courts
13.6(4)
Co-conspirator may be “agent” as that term is used within New York long-arm statute providing that a New
York court may exercise personal jurisdiction over any nondomiciliary who in person or through agent commits
tortious act in state. Cleft of the Rock Foundation v. Wilson, 1998, 992 F.Supp. 574. Courts
13.6(7)
Under New York law, a formal agency relationship is not necessary to impute the acts of the agent to a defendant in order to bring the defendant within the long-arm statute when he is being sued by a third-party. Jaffe v.
Boyles, 1985, 616 F.Supp. 1371. See, also, Mayer v. Josiah Wedgwood & Sons, Ltd., D.C.N.Y.1985, 601
F.Supp. 1523; Kristinus v. H. Stern Com. E. Ind. S.A., D.C.N.Y.1977, 433 F.Supp. 303; PPS, Inc. v. Jewelry
Sales Representatives, Inc., D.C.N.Y.1975, 392 F.Supp. 375. Courts
13.6(1)
Under this section, for purposes of determining whether actions of New York subsidiaries can be attributed to
foreign parent corporation under agency theory, courts look to realities rather than formalities of agency to decide whether business has been transacted through agent. Bulova Watch Co., Inc. v. K. Hattori & Co., Ltd.,
1981, 508 F.Supp. 1322. Courts
13.6(9)
The term “agent” as used in a jurisdictional sense under this section is broader than the meaning given in the
normal “principal-agent” concept. Merkel Associates, Inc. v. Bellofram Corp., 1977, 437 F.Supp. 612. See, also,
Eliah v. Ucatan Corp., D.C.N.Y.1977, 433 F.Supp. 309. Federal Courts
76.1
Jurisdiction over non-domiciliary may be obtained, under the “contracting” or “transacting business” prong of
Page 148
New York's long-arm statute, where non-domiciliary has transacted business through an agent, notwithstanding
absence of formal agency relationship. In re Med-Atlantic Petroleum Corp., 1999, 233 B.R. 644. Courts
13.6(1)
92. Determination of agency relationship, acts by agent or representative--In general
In order to be considered an agent of defendant for purposes of personal jurisdiction under New York law, the
putative agent must have acted in the State for the benefit of, and with the knowledge and consent of, the nonresident defendant, and the nonresident defendant must have exercised some control over the activities of the putative agent. RSM Production Corp. v. Fridman, 2009, 643 F.Supp.2d 382, affirmed 387 Fed.Appx. 72, 2010
13.6(1)
WL 2838582. Courts
In order to establish an agency relationship for the purposes of New York's long-arm statute, alleged agent must
have acted in the state for the benefit of, and with the knowledge and consent of, the non-resident principal;
while the principal need not exercise absolute control over the decisions or acts of the putative agent, a sufficient
amount of control may involve the ability of the principal to influence such acts or decisions by virtue of the
parties' respective roles. Maersk, Inc. v. Neewra, Inc., 2008, 554 F.Supp.2d 424. Courts
13.6(1); Federal
Courts
76.20; Principal And Agent
1
For corporation to be considered an agent of corporate officer for purposes of personal jurisdiction under New
York's long-arm statute, plaintiff must allege (1) that corporation engaged in purposeful activities in New York
in relation to transaction underlying action, (2) that corporation's activities were performed for officer's benefit,
(3) that corporation's activities were performed with officer's knowledge and consent, and (4) that officer exercised some control over corporation. Beatie and Osborn LLP v. Patriot Scientific Corp., 2006, 431 F.Supp.2d
367. Courts
13.6(4)
Under New York law, in-state actor is “agent” of non-resident, for purpose of establishing personal jurisdiction
over non-resident, if he or she acted in state for benefit of, and with knowledge and consent of, non-resident
principal; principal need not have exercised absolute control over decisions or acts of alleged agent, but must at
least have had ability to influence such acts or decisions by virtue of parties' respective roles. Cavu Releasing,
LLC. v. Fries, 2005, 419 F.Supp.2d 388. Courts
13.6(1)
Determination of whether nonresident defendant has transacted business in New York “through an agent,” so as
to support jurisdiction over nonresident under long-arm statute, does not require a formal agency relationship;
rather, inquiry is into whether agent acted in New York for benefit of, and with knowledge and consent of, nonresident principal. Yurman Designs, Inc. v. A.R. Morris Jewelers, L.L.C., 1999, 41 F.Supp.2d 453, reconsideration denied 60 F.Supp.2d 241. Courts
13.6(1)
In order to be considered an agent for jurisdictional purposes under New York long-arm statute, purported agent,
whether an individual or a corporation, must have acted in New York for the benefit of, with knowledge and
consent of, and under some control by, the nonresident principal. Levisohn, Lerner, Berger & Langsam v. Medical Taping Systems, Inc., 1998, 10 F.Supp.2d 334. Courts
13.6(1)
Page 149
Formal trappings of agency are not as important as realities of situation, in deciding whether party qualifies as
“agent” of out-of-state principal under New York long-arm statute. 5-Star Management, Inc. v. Rogers, 1996,
13.6(1)
940 F.Supp. 512. Courts
To constitute an “agent” for purposes of New York's long-arm statute, alleged agent must have engaged in purposeful activities in New York State for benefit of and with knowledge and consent of the nondomiciliary and
the nondomiciliary must exercise some element of control over the agent. Teachers Ins. and Annuity Ass'n of
America v. Butler, 1984, 592 F.Supp. 1097. See, also, Birmingham Fire Ins. Co. of Pennsylvania v. KOA Fire &
76.20
Marine Ins. Co., Ltd., D.C.N.Y. 1983, 572 F.Supp. 962. Federal Courts
Personal jurisdiction in breach of contract suit against defendant nonresident corporation could be predicated under this section providing for personal jurisdiction over a nondomiciliary who in person or through an agent
transacts any business within the state, where agent who transacted business in New York was acting on behalf
of defendant in soliciting, negotiating and entering into the contract, and where the alleged solicitations and negotiations occurred in the state, the action arose from those acts, and the acts were sufficiently purposeful to invoke the benefits and protection of this section. Capitol Cabinet Corp. v. Interior Dynamics, Ltd., 1982, 541
81
Where one defendant foreign corporation was agent of the other, and where agent and principal were united in
same transaction, finding of jurisdiction over the one compelled finding of jurisdiction over the other, under this
section. China Union Lines, Ltd. v. American Marine Underwriters, Inc., 1978, 454 F.Supp. 198. Federal Courts
82
In deciding whether it can exercise personal jurisdiction over non-domiciliary, on theory that non-domiciliary
has utilized agent to transact business in New York, courts focus on realities of relationship in question, to determine whether the alleged agent acted in New York for benefit of, and with knowledge and consent of, nonresident principal; if so, then fiduciary shield doctrine is not available to permit non-resident principal to defeat
jurisdiction under New York's long-arm statute. In re Med-Atlantic Petroleum Corp., 1999, 233 B.R. 644. Courts
13.6(1); Courts
13.6(5)
Plaintiff provided sufficient evidence to warrant further discovery to determine whether boarding school program operated by New York company was agent of Connecticut operator of program which was affiliated with,
and received all of its student referrals from, New York company, for purposes of determining whether long-arm
personal jurisdiction existed over Connecticut operator. Morgan ex rel. Hunt v. A Better Chance, Inc. (1 Dept.
2010) 70 A.D.3d 481, 895 N.Y.S.2d 374. Pretrial Procedure
36.1
Employer was agent of foreign affiliate, under corporate presence doctrine, allowing exercise of personal jurisdiction over non-New York entity with presence in New York by virtue of doing business in New York, as required for service upon employer to suffice as service upon foreign affiliate in employee's action to recover allegedly unpaid salary and commissions, where employer and affiliate were commonly owned separate legal entities, and employer was established to do all business that affiliate could do by its own officials if present in
New York. Arbeeny v. Kennedy Executive Search, Inc., 2011, 31 Misc.3d 494, 921 N.Y.S.2d 784. Courts
Page 150
13.6(9)
To be considered agent for purposes of conveying personal jurisdiction, under New York law, individual or entity must have acted for benefit of and with knowledge and consent of foreign principal, and principal must have
exercised some control over agent. Societe Generale v. Florida Health Sciences Center, Inc., 2003, 2003 WL
13.6(1)
22852656, Unreported. Courts
93. ---- Purposeful activities, determination of agency relationship, acts by agent or representative
Where foreign insurer appointed local firm merely to survey and report amount of damages, and not to pay or reject claims, designation of firm did not constitute “purposeful activity” by foreign insurer necessary for exercise
of long-arm jurisdiction by New York. Ringers' Dutchocs, Inc. v. S. S. S. L. 180, C.A.2 (N.Y.)1974, 494 F.2d
80
678. Federal Courts
“Purposeful activities,” under New York Long-Arm Statute, are those with which a defendant, through volitional
acts, avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and
protections of its laws; such acts may be contrasted with random, fortuitous, or attenuated contacts, or unilateral
activity of another party or a third person. Capitol Records, LLC v. VideoEgg, Inc., 2009, 611 F.Supp.2d 349,
90 U.S.P.Q.2d 1720. Courts
13.3(4); Courts
13.6(1)
Plaintiff need not establish a formal agency relationship between corporation and individual defendant officer to
subject officer to personal jurisdiction under New York's long-arm statute; rather, plaintiff need only convince
court that corporation engaged in purposeful activities in New York in relation to underlying transaction for the
benefit of and with the knowledge and consent of officer, and that officer exercised some control over corporation in the matter. Beatie and Osborn LLP v. Patriot Scientific Corp., 2006, 431 F.Supp.2d 367. Courts
13.6(4)
Under New York law, formal agency relationship is not required to establish that out-of-state defendant acted
through his agent in state, conferring personal jurisdiction to courts in state over defendant; plaintiffs need only
convince court that agent engaged in purposeful activities in state in relation to plaintiffs' transaction for benefit,
and with knowledge and consent, of defendant, and that defendant exercised some control over agent. Louros v.
Cyr, 2001, 175 F.Supp.2d 497. Courts
13.6(1)
In attempting to establish that Maryland corporation transacted business in New York as agent for individual
corporate directors so that corporation's actions were attributable to directors, for purposes of establishing jurisdiction over directors under New York long-arm statute, plaintiff need not establish formal agency relationship,
but need only establish that corporation engaged in purposeful activities in New York and acted with knowledge
and consent of individual directors, and that directors exercised some control over company in the matter. Reynolds Corp. v. National Operator Services, Inc., 1999, 73 F.Supp.2d 299. Courts
13.6(6)
To exercise personal jurisdiction over defendant under New York long-arm statute, defendant's phone calls and
mailings to the state must serve to project a defendant into New York in such a manner that the defendant pur-
Page 151
posefully avails himself of the protections and benefits of New York Law. Roper Starch Worldwide, Inc. v. Rey13.3(4)
mer & Associates, Inc., 1998, 2 F.Supp.2d 470. Courts
To qualify as out-of-state principal's agent, whose contacts may be imputed to principal under New York longarm statute, alleged “agent” must have engaged in purposeful activities in New York for benefit of and with
knowledge and consent of principal, and principal must exercise some element of control over alleged agent.
13.6(1)
5-Star Management, Inc. v. Rogers, 1996, 940 F.Supp. 512. Courts
To confer personal jurisdiction in New York over nondomiciliary corporation by reason of nondomiciliary's
agent's acts which are imputed to nondomiciliary as its own acts in New York “through an agent,” acts performed by agent must be sufficient to constitute purposeful activity undertaken with knowledge and consent of
nondomiciliary. Dero Enterprises, Inc. v. Georgia Girl Fashions, Inc., 1984, 598 F.Supp. 318. Federal Courts
82
Nonresident property managers' acts of making phone calls and sending e-mails to its offices in New York, and
representing real estate broker at industry trade show in New York, were not purposeful acts constituting the
transacting of business in New York, as required to support exercise of jurisdiction over managers under longarm statute, consistent with due process, in action seeking brokerage fees allegedly earned in connection with
procurement of tenants for out-of-state shopping centers, absent showing of substantial relationship between acts
and claim asserted. Daniel B. Katz & Associates Corp. v. Midland Rushmore, LLC (2 Dept. 2011) 90 A.D.3d
977, 937 N.Y.S.2d 236. Constitutional Law
3965(5); Courts
13.3(11)
94. ---- Particular purposeful activities, determination of agency relationship, acts by agent or representative
Assignee of copyright in motion picture made prima facie showing of personal jurisdiction over nonresident infringement defendant, under “transacting business” prong of New York long-arm statute; financer who had unsuccessfully negotiated distribution deal in forum was allegedly acting as defendant's agent. Cavu Releasing,
LLC. v. Fries, 2005, 419 F.Supp.2d 388. Copyrights And Intellectual Property
79
District court had personal jurisdiction over account manager for foreign bank under New York law, in action by
depositors for violations of Racketeer Influenced and Corrupt Organizations Act (RICO), breach of contract, unjust enrichment, and conversion, based on activities carried on within state by agents of bank; marketers solicited depositors' participation in New York, resulting in wire transfers to bank, account manager knew, approved
of, and benefitted from activities, since he initiated establishment of bank, prepared individual account balances,
and benefitted financially, and defendant exercised some control over agents, since he instructed them on obtaining powers of attorney from depositors and on wiring deposits to bank. Louros v. Cyr, 2001, 175 F.Supp.2d 497.
Federal Courts
76.35
New York court's exercise of personal jurisdiction over Italian manufacturer and its owner in distributor's action
alleging unfair competition and trademark infringement did not violate due process, where defendants purposefully sent agent to New York to perform alleged acts to divert business in New York away from distributor.
Mario Valente Collezioni, Ltd. v. Confezioni Semeraro Paolo, S.R.L., 2001, 174 F.Supp.2d 170. Constitutional
Law
Page 152
3965(4); Trademarks
1558
Personal jurisdiction did not exist over corporation's principal under New York's long-arm statute under theory
that principal was corporation's agent, given that principal's only forum contact was to cause corporation to file
trademark infringement action, which did not constitute purposeful activity in the state. H.S.W. Enterprises, Inc.
76.20
v. Woo Lae Oak, Inc., 2001, 171 F.Supp.2d 135. Federal Courts
Principals of introducing broker were subject to personal jurisdiction in New York in investors' Racketeer Influenced and Corrupt Organizations Act (RICO) action based on alleged conspiracy to artificially inflate copper futures prices, even if defendants did not regularly engage in business in New York; defendants' acts in United
Kingdom were committed with specific purpose of manipulating copper prices on Comex division of New York
Merchantile Exchange, and defendants traveled frequently to Tokyo, New York and other parts of United States
76.35
to further conspiracy. In re Sumitomo Copper Litigation, 2000, 120 F.Supp.2d 328. Federal Courts
Under New York long-arm statute, Tennessee retailer's alleged unauthorized sale of New York jewelry designer's product to Delaware retailer did not make Tennessee retailer agent of Delaware retailer, as required to confer jurisdiction over Delaware retailer in designer's copyright infringement and unfair competition action, absent
evidence that fee paid by Delaware retailer was specifically for purchase of product by Tennessee retailer in
New York. Yurman Designs, Inc. v. A.R. Morris Jewelers, L.L.C., 1999, 41 F.Supp.2d 453, reconsideration
denied 60 F.Supp.2d 241. Copyrights And Intellectual Property
79; Federal Courts
81
Swiss investment management firm and its agent were subject to personal jurisdiction under New York's longarm statute in pension fund's securities fraud action against them, arising from fund's loss of $9.3 million that it
paid to purchase “prime” European bank note that later proved non-existent, as fund made prima facie showing
that defendants derived substantial revenue from international commerce and committed tortious acts outside of
New York that they knew, or reasonably should have known, would have consequences within New York; firm's
brochure described firm's participation in major financial markets across globe, agent admitted to having worked
“throughout the years” with firms involved in international commerce, amended complaint depicted agent as active participant in fraudulent appropriation of fund's assets placed with bank, and, because agent knew or should
have known that money belonged to fund, he should have expected that his alleged misrepresentation that purchase of note in question was imminent would be relayed to fund in New York, for which firm would also be liable based upon their agency relationship. Local 875 I.B.T. Pension Fund v. Pollack, 1998, 992 F.Supp. 545.
Federal Courts
86
Officer of Massachusetts corporate used car dealership was subject to personal jurisdiction in New York, under
New York's long-arm statute on basis of his purposeful activities in transaction of business in New York, in
breach of contract and fraud action brought by New York dealer, where officer personally initiated proposed relationship with plaintiff dealer, was continuously engaged in negotiations, and traveled to New York to complete
agreement and assist in start-up of plaintiff's operation. Champion Motor Group, Inc. v. Visone Corvette of Massachusetts, Inc., 1998, 992 F.Supp. 203. Federal Courts
76.20
Participation by individuals located in New York in experiments in which subject was without her knowledge
Page 153
injected with plutonium in 1946 at request of physician who, while working for federal government, directed
that subject be injected in New York and that personnel at university hospital located in New York conduct experiments constituted “purposeful activity” carried out on behalf of physician in New York, so that physician
came within reach of New York long arm statute, even though physician had not resided in New York since
1940 and did not engage in any tortious acts in New York. Stadt v. University of Rochester, 1996, 921 F.Supp.
76.25
1023. Federal Courts
Plaintiff made adequate showing that defendant which marketed and distributed pepper spray had engaged in
business activity related to cause of action for benefit of and with knowledge and consent of nonresident principal, and that principal exercised some control over alleged agent for purposes of New York long-arm statute; alleged agent promoted sales, provided training and essentially did every thing principal would do if it sold its
product in New York in its own right, bills of lading revealed that although product was sold by alleged agent to
police, product was shipped directly from principal, and business card presented appeared to indicate that alleged agent was marketing division of principal. Murphy v. Cuomo, 1996, 913 F.Supp. 671. Federal Courts
82
Putative finders seeking fees in connection with corporate acquisition established prima facie case of personal
jurisdiction over officers of acquired corporation who lived and worked in England under New York long arm
statute, based upon allegations that New York based investment banking firm was acting as their agent during
acquisition and that activities engaged in by firm constituted conduct out of which cause of action arose. Deem
v. Lockheed Corp., 1989, 749 F.Supp. 1230, reargument denied. Federal Courts
96
West Indian medical school was subject to personal jurisdiction in New York, by virtue of either its own activities or its relationship with an agent in New York who handled nearly every element of school's administrative
affairs with respect to North American students, which comprised approximately 70% of the student body. Kosta
v. St. George's University School of Medicine, 1986, 641 F.Supp. 606. Federal Courts
86
By attempting to establish agency relationship with New York resident, employed in New York, which would
require nondomiciliary defendant to deal on behalf of client with New York employer and with New York financial institutions, defendant purposefully availed itself of privilege of conducting activities in forum state and,
thus, district court in forum state had personal jurisdiction over defendant. Roundball Enterprises, Inc. v.
Richardson, 1985, 616 F.Supp. 1537. Federal Courts
76.10
Alleged funneling of money from New York bank account to Argentinian domiciliary employed as senior officer at plaintiff's Argentinian subsidiary was insufficient to invoke personal jurisdiction over officer on basis on
transacting business within the state. DirecTV Latin America, LLC v. Pratola (1 Dept. 2012) 94 A.D.3d 628,
942 N.Y.S.2d 528, leave to appeal denied 19 N.Y.3d 812, 951 N.Y.S.2d 722, 976 N.E.2d 251. Courts
13.3(11)
Pennsylvania insurer had sufficient purposeful activities in New York that bore substantial relationship to subject matter of action against insurer and insurance broker for reformation of contracts of insurance and to recover damages for breach of contract and negligent misrepresentation, so that insurer availed itself of benefits and
Page 154
protections of New York's laws, as required for exercise of personal jurisdiction, under New York's long-arm
statute, where insurer transacted business in New York by engaging in 12-year business relationship with New
York insurance broker who procured numerous policies on behalf of insurer in accordance with insurer's specifications, including specific policies at issue in action, and insurer engaged in frequent communication by telephone, e-mail, and fax transmissions with broker regarding policies. Transportation Ins. Co. v. Simplicity, Inc.
13.5(14)
(2 Dept. 2009) 61 A.D.3d 963, 879 N.Y.S.2d 479. Courts
Appearance in New York to negotiate terms of note by note beneficiary's son, who was acting on behalf of beneficiary, was sufficiently purposeful activity to provide New York court with personal jurisdiction over beneficiary, who was Great Britain resident, in declaratory judgment action commenced by note issuer. San Ysidro
13.3(10)
Corp. v. Robinow (1 Dept. 2003) 1 A.D.3d 185, 768 N.Y.S.2d 191. Courts
New York court did not have personal jurisdiction over defendant Colorado corporations; testimony of corporate
agent and language of letter agreement refuted plaintiff's claim that some or all of the agreement's terms were
negotiated at single exploratory meeting of parties in New York, and lack of purposeful activity by corporate defendants in New York demonstrated that exercise of personal jurisdiction over them would not comport with notions of fair play and substantial justice. Leiderman Associates v. Robotool Ltd. (2 Dept. 1989) 154 A.D.2d 515,
546 N.Y.S.2d 137. Constitutional Law
3965(3); Courts
13.4(3); Courts
32.5(1)
Where, at request of nondomiciliary defendant, person solicited plaintiffs in state for purposes of entering into
business proposition with defendant and such person arranged meeting between parties out of state, received instructions from defendant regarding transaction and delivered relevant documents from defendant to plaintiffs in
state, defendant, through such person, had engaged in purposeful activity and transacted business within state so
as to subject himself to personal jurisdiction of courts of state. Stark v. Spitz (2 Dept. 1972) 38 A.D.2d 966, 331
13.3(11)
Vessel owner was not subject to personal jurisdiction in New York in seaman's action to recover for injuries resulting from accident aboard ship while in international waters, even though owner had agent in New York who
approved payments for repairs made to vessel, where agent did not specifically direct repairs, repairs themselves, or any failure to make those repairs, were acts or omissions that occurred outside of state, and owner had
no office in New York, no bank account or property in New York, and no employees permanently stationed in
New York, and agent expended only one or two percent of his time on work related to owner. Saudi v. Marine
Atlantic, Ltd., C.A.2 (N.Y.)2009, 306 Fed.Appx. 653, 2009 WL 76503, Unreported. Seamen
29(5.5)
95. ---- Benefit to principal, determination of agency relationship, acts by agent or representative
Under New York law, administrative services corporation which formed shell corporation in New York for sole
purpose of establishing its presence in New York, in order to allow it to obtain worker's compensation coverage
in New York for employees that were transferred to it and then leased back to its small business clients in other
states, acted as agent of those businesses in obtaining coverage, and thus its contacts with New York were attributable to those businesses for purposes of establishing long-arm jurisdiction. Oriska Ins. Co. v. Power P.E.O.,
Page 155
Inc., 2004, 352 F.Supp.2d 291. Federal Courts
82
Mother's filing of allegedly false criminal complaint against father in state could not be imputed to nonresident
attorneys and deputy sheriff for purposes of exercising personal jurisdiction over them in father's action for abuse of process, even if father presented prima facie case of conspiracy, and even if mother acted on deputy's advice; only benefit was to mother for favorable child support settlement, nothing indicated benefit to nonresident
defendants, and there was thus no viable theory of agency. Heinfling v. Colapinto, 1996, 946 F.Supp. 260. Fed76.20
eral Courts
Commander of Chemical Corps, who was ultimately responsible for program that furnished synthetic mescaline
compound which killed psychiatric patient when injected as part of chemical warfare experiments and who may
have personally benefited from cover-up carried out by defendants in New York, and project officer for psychiatric institute's drug testing contract with Army, who may also have personally benefited from cover-up carried
out by New York defendants and who apparently committed at least one act within New York to cover up
Army's involvement, were subject to personal jurisdiction according to prima facie case made out by administratrix of estate of psychiatric patient pursuant to New York statute which authorizes exercise of personal jurisdiction over nondomiciliary who commits tortious act within New York in person or through agent. Barrett v.
76.25
U.S., 1986, 646 F.Supp. 1345. Federal Courts
Mere receipt by nonresident of benefit or profits from contract performed by others in New York is not an act by
the recipient in the state sufficient to confer jurisdiction under this section. Ferrante Equipment Co. v. LaskerGoldman Corp., 1970, 26 N.Y.2d 280, 309 N.Y.S.2d 913, 258 N.E.2d 202. Courts
13.3(10)
Even if personal participation in auction by nonresident defendant, against whom recovery was sought for
amount bid on two paintings at auction by defendant, did not amount to transaction of business within this section, where auctioneer's employee's sole function during auction was to assist defendant, who transmitted bids
over open telephone line, and to carry out defendant's instructions, defendant had transacted business in state
“through an agent” and was thus subject to jurisdiction of state courts. Parke-Bernet Galleries, Inc. v. Franklyn,
1970, 26 N.Y.2d 13, 308 N.Y.S.2d 337, 256 N.E.2d 506. Auctions And Auctioneers
6; Courts
13.6(2)
Activities of representative of nondomiciliary will be attributed to nondomiciliary for purpose of long-arm jurisdiction if nondomiciliary requested performance of activities in forum state and those activities benefit it, regardless of whether representative acted as agent or independent contractor. Cato Show Printing Co., Inc. v. Lee
(4 Dept. 1981) 84 A.D.2d 947, 446 N.Y.S.2d 710. See, also, East New York Sav. Bank v. Republic Realty
Mortg. Corp., 1978, 61 A.D.2d 1001, 402 N.Y.S.2d 639. Courts
13.6(1)
96. ---- Knowledge or consent, determination of agency relationship, acts by agent or representative
Massachusetts nonprofit corporation that entered into professional services agreement with Massachusetts corporation did not knowingly engage in ongoing contractual relationship with Massachusetts corporation's parent,
a New York corporation, so as to confer jurisdiction under New York's long arm statute, where it was not aware
that it was dealing with a corporation other than the subsidiary. Unlimited Care, Inc. v. Visiting Nurse Ass'n of
Page 156
Eastern Massachusetts, Inc., 1999, 42 F.Supp.2d 327. Federal Courts
79
For the most part, president of company which New York law firm agreed to represent on intellectual property
law issues did not act as agent of other officers, from whom law firm sought to recover for allegedly participating in fraudulent conveyances designed to defeat firm's right to fees, when president journeyed to New York to
negotiate retainer agreement; since all but one of these other officers was not associated with company at time of
president's actions, president's contacts with New York could not be attributed to these other officers, except as
to officer who was member of company at time, for purpose of permitting court to exercise personal jurisdiction,
on agency theory, under New York long-arm statute. Levisohn, Lerner, Berger & Langsam v. Medical Taping
76.5
Systems, Inc., 1998, 10 F.Supp.2d 334. Federal Courts
Each out-of-state coconspirator must have been aware of effects in New York of its activity before that coconspirator may be subjected to personal jurisdiction in New York. Daniel v. American Bd. of Emergency Medicine, 1997, 988 F.Supp. 127, disapproved in later appeal 428 F.3d 408. Courts
13.6(7)
Although net effect of Japanese buying agent's New York visits eventually would inure to benefit of Japanese
toy manufacturer, the buying agent was not the manufacturer's agent for purpose of New York long-arm statute
absent showing that manufacturer was aware of any of the arrangements made at New York meetings until it received the purchase orders or that it was aware of buying agent's four trips into the forum before the fact or even
consented to having any business done in New York on its behalf, and buying agent was an independent entity
and acted for other manufacturers. Louis Marx & Co., Inc. v. Fuji Seiko Co., Ltd., 1978, 453 F.Supp. 385. Federal Courts
82
In action arising from debt restructuring transaction, defendant's undisputed testimony that he had visited New
York to advise another defendant with respect to the subject transaction, that over the years he had acted as other
defendant's principal, had been kept abreast of developments in their business through regular telephone calls to
New York, and had knowledge of what other defendant was doing and consented to it, though not necessarily indicative of formal agency relationship, was sufficient to subject him to state's jurisdiction as to the complainedof transaction. Venizelos v. Gregofam Empresas Comerciales, S.A. (1 Dept. 1997) 239 A.D.2d 265, 657
13.5(12)
Author of book, which purported to depict defendant movant's life, was movant's agent for the purpose of publishing the book in New York, where the author acted for the benefit of and with the knowledge and consent of
movant, and where movant retained some element of control over the author's activities; and since it was established that the author had transacted business within New York with respect to the book's publication, movant
therefore transacted business within the state “through an agent,” sufficient to empower the courts of New York
to exercise jurisdiction over movant under this section. Legros v. Irving, 1973, 77 Misc.2d 497, 354 N.Y.S.2d 47
. Courts
13.6(2)
97. ---- Dominion or control, determination of agency relationship, acts by agent or representative
Mere status as an alleged trustee of an entity that owned a stake in a foreign corporation was insufficient to sug-
Page 157
gest that the corporation or others acted in New York at trustee's direction and control, so as to subject trustee to
personal jurisdiction in New York courts. Phillips v. Reed Group, Ltd., 2013, 2013 WL 3340293. Federal Courts
76.20
As a matter of law, where there is joint control of a business enterprise, similar to that existing in a partnership
or joint venture, enough control has been shown to establish prima facie this particular element of agency to satisfy long-arm jurisdiction under the New York long-arm statute. National Union Fire Ins. Co. of Pittsburgh, PA.
13.6(1)
v. BP Amoco P.L.C., 2004, 319 F.Supp.2d 352. Courts
Judgment debtor's behavior in New York state was not so controlled by Swiss uncle as to satisfy control element
of New York's long-arm test for exercise of personal jurisdiction over nondomiciliary co-conspirator, on judgment creditors' civil Racketeer Influenced and Corrupt Organizations Act (RICO) claims against debtor and
uncle; creditors alleged that uncle had unchallenged authority within family and called meeting at which conspiracy began, but creditors failed to show any degree of control by uncle over debtor's specific in-state acts in
furtherance of conspiracy and that any of debtor's actions were for benefit of uncle. First Capital Asset Management, Inc. v. Brickellbush, Inc., 2002, 218 F.Supp.2d 369, on reconsideration 219 F.Supp.2d 576, affirmed 385
86
F.3d 159. Federal Courts
No evidence indicated that out-of-state hospitals exercised discretion or control over accrediting organization for
emergency room physicians and, thus, there was no basis for finding personal jurisdiction over out-of-state hospitals in New York in antitrust action arising out of refusal to permit physicians to take examination for certification as emergency room physicians. Daniel v. American Bd. of Emergency Medicine, 1997, 988 F.Supp. 127,
disapproved in later appeal 428 F.3d 408. Federal Courts
96
Jurisdiction could not be asserted over Puerto Rico resident under New York long-arm statute on agency theory
in case alleging that resident wrongfully procured proceeds of Federal Employees Group Life Insurance policy;
in paying policy proceeds, New York insurer did not act as Puerto Rico resident's agent, nor did she exercise any
control over insurer. Jacobs v. U.S., 1992, 794 F.Supp. 509. Federal Courts
76.20
New York mortgage broker acted as “agent” of California limited partnership within meaning of New York
long-arm statute where partnership designated broker to act on its behalf to obtain desired financing and exercised complete control over various proposals, and thus, in view of extensive negotiations in New York City and
provision that agreement was to be performed in New York and should be construed under laws of New York,
partnership was properly before District Court sitting in New York in prospective lender's action for specific
performance of financing agreement. Teachers Ins. and Annuity Ass'n of America v. Butler, 1984, 592 F.Supp.
85
Activities of New York independent agents who worked on commission for sale of nonresident corporation's
products, who paid their own expenses, who could not finalize order for corporation's products and who were
not subject to corporation's direct control could not constitute a basis for jurisdiction in action brought in federal
district court in New York against the corporation. Loria & Weinhaus, Inc. v. H. R. Kaminsky & Sons, Inc.,
82
Page 158
In determining whether local sales representative is for jurisdictional purposes an “agent” whose activities are
attributable to manufacturer, rather than an independent entity whose activities are not so attributable, significant factor is degree of control that manufacturer retains to accept or reject orders secured by local representative,
to set terms of sale, and to establish conditions of payment. PPS, Inc. v. Jewelry Sales Representatives, Inc.,
58
1975, 392 F.Supp. 375, 185 U.S.P.Q. 374. Process
New York law requires that a principal exercise some dominion and control over its agent before conduct of the
agent is deemed that of the principal for purposes of jurisdiction. J. Baranello & Sons v. Hausmann Industries,
76.1
Inc., 1980, 86 F.R.D. 151. Federal Courts
New York did not have long-arm jurisdiction over foreign corporation in insurance dispute on theory that domestic company was acting as its agent when it purchased insurance policies at issue, where there was no evidence that foreign corporation exercised control over domestic company with respect to its purchase of insurance.
OneBeacon America Ins. Co. v. Newmont Mining Corp. (1 Dept. 2011) 82 A.D.3d 554, 918 N.Y.S.2d 470.
13.6(9)
Courts
To obtain personal jurisdiction over a nondomiciliary defendant pursuant to the “transacting business” portion of
New York long-arm statute, activities in New York of a representative of nondomiciliary may be attributed to
nondomiciliary if nondomiciliary requested the performance of those activities and those activities benefit nondomiciliary, regardless of whether representative acted as an agent or independent contractor; critical factor is
the degree of control nondomiciliary exercises over representative. Alan Lupton Associates, Inc. v. Northeast
Plastics, Inc. (4 Dept. 1984) 105 A.D.2d 3, 482 N.Y.S.2d 647. Courts
13.3(11)
Foreign corporation did not have significant forum state contact by soliciting resident corporation's business
through middleman as agent where foreign corporation exercised no control over middleman, middleman's original solicitation of resident corporation was made before middleman had spoken to foreign corporation or discovered existence of foreign corporation's press, and thus middleman could not have been foreign corporation's
agent in soliciting resident corporation to buy press. Cato Show Printing Co., Inc. v. Lee (4 Dept. 1981) 84
A.D.2d 947, 446 N.Y.S.2d 710. Courts
13.6(2)
Evidence established that though contract denominated plaintiff's intestate to be a licensee of defendant, defendant retained such domination and control over intestate's activities as to make intestate in substance agent of defendant, and hence New York court could exercise personal jurisdiction over nondomiciliary defendant. Hodom
v. Stearns (4 Dept. 1969) 32 A.D.2d 234, 301 N.Y.S.2d 146, appeal dismissed 25 N.Y.2d 722, 307 N.Y.S.2d
225, 255 N.E.2d 564. Courts
13.6(2)
98. ---- Authority to bind principal, determination of agency relationship, acts by agent or representative
Even if Swiss law provides that acts of mere contract employee who is neither manager nor director of corporation do not bind corporation, investors' prima facie showing of personal jurisdiction over Swiss corporation in
securities fraud case based on acts of its alleged agent was not thereby defeated; although corporation claimed
that alleged agent was not included on official list of those whose acts could bind corporation, that issue would
Page 159
affect not only jurisdiction, but merits as well. Local 875 I.B.T. Pension Fund v. Pollack, 1998, 992 F.Supp. 545
86
. Federal Courts
New York federal district court could exercise personal jurisdiction over South Dakota corporation under New
York long-arm statute in lawsuit brought by corporation's former law firm to recover unpaid balance of attorney
fees; corporation permitted third party to attend meeting on its behalf held in New York to discuss representation
and agreed to be bound by whatever decisions third party made at meeting, notwithstanding that litigation for
which law firm was hired was prosecuted in Maryland. Pennie & Edmonds v. Austad Co., 1988, 681 F.Supp.
84
Common ownership of corporate affiliates did not give rise to valid inference of agency for purpose of asserting
jurisdiction under New York long-arm statute, where relationship between affiliates was that of major distributor
to manufacturer, and the one did not have power to bind the other. Mayer v. Josiah Wedgwood & Sons, Ltd.,
86
1985, 601 F.Supp. 1523, 225 U.S.P.Q. 776. Federal Courts
That agent of subcharterer of vessel signed bill of lading in New York on behalf of foreign corporate owner of
vessel did not amount to “purposeful activity” in New York on part of owner, where owner had not asked
subcharterer's agent to act for it in New York, bill was issued in New York solely for convenience of subcharterer and shipper, and, as to owner, issuance of bill in New York was purely fortuitous; thus owner's role in issuance of bill of lading did not give federal district court in New York jurisdiction over owner by virtue of this
section, in cargo buyer's suit to recover for damage to cargo allegedly suffered during voyage from Louisiana to
Iran. Tehran v. S. S. Philippine President Garcia, 1979, 477 F.Supp. 726. Federal Courts
83
Agency relationship did not exist between Vermont ski resort and New York ski shops for purposes of personal
jurisdiction over ski resort, even though ski resort gave free passes to shops that displayed its posters and brochures, where there was no evidence that shops had authority to contractually bind ski resort. Sedig v. Okemo
Mountain (2 Dept. 1994) 204 A.D.2d 709, 612 N.Y.S.2d 643. Courts
13.6(2); Principal And Agent
3(1)
99. ---- Request of principal, determination of agency relationship, acts by agent or representative
New York corporation was not Indiana resident's “agent,” but was engaged by general partner to assist Indiana
resident and others to finance investment in Texas limited partnership, and, therefore, Indiana resident was not
transacting business in New York through an agent for purposes of determining whether Indiana resident was
subject to personal jurisdiction in New York. First City Sav. Bank v. Keener, 1988, 685 F.Supp. 58. Federal
Courts
76.15
Publication and distribution by one defendant of magazine wherein plaintiff's photograph appeared advertising
second defendant's suntan products was properly attributable to second defendant for jurisdictional purposes
where, in performing such purposeful in-state activity, first defendant was acting for and in behalf of second defendant and, though it was not clear exactly how second defendant arranged for advertisement to appear in
magazine, publication was assumedly accomplished by contract and, thus, first defendant was acting at second
Page 160
defendant's request pursuant to agreement and, obviously, second defendant benefitted economically from pro82
motion of its product. Eliah v. Ucatan Corp., 1977, 433 F.Supp. 309. Federal Courts
In a suit by a third party against a nonresident in which suit is alleged that nonresident's representative acted
within New York on nonresident's behalf, court must determine whether such nonresident requested performance of that purposeful activity in New York and whether such an instate activity benefitted him; if this twopronged test is satisfied, in-state activity of representative is attributable to nonresident. Eliah v. Ucatan Corp.,
131
1977, 433 F.Supp. 309. Principal And Agent
Where the claimed jurisdictional basis over a nondomiciliary defendant consists of the acts of an agent, the
plaintiff must show that the defendant principal requested the agent to perform purposeful acts in New York for
13.6(1)
the principal's benefit. Abbate v. Abbate (2 Dept. 1981) 82 A.D.2d 368, 441 N.Y.S.2d 506. Courts
100. ---- Burden of proof, determination of agency relationship, acts by agent or representative
On motion to dismiss for lack of personal jurisdiction, under New York's long-arm statute authorizing exercise
of jurisdiction over nondomiciliary defendant for tort and contract claims arising from transaction of business in
the state, by corporation acting as agent for defendant, plaintiffs must make a prima facie showing that corporations acted for the benefit of, with the knowledge and consent of, and under some control by defendant. First
Capital Asset Management, Inc. v. Brickellbush, Inc., 2002, 218 F.Supp.2d 369, on reconsideration 219
F.Supp.2d 576, affirmed 385 F.3d 159. Federal Courts
96
In attempting to establish that a corporation in New York was acting as agent of nondomiciliary defendants so
that its actions were attributable to them and supported New York's assertion of jurisdiction over defendants, the
plaintiff was not required to establish a formal agency relationship between the New York corporation and the
defendants, but only had to convince the court the alleged agent engaged in purposeful activities in New York in
relation to the plaintiff's transaction with benefit of and with the knowledge and consent of the defendants, and
that the defendants exercised some control in the matter over the alleged agent. Kreutter v. McFadden Oil Corp.,
1988, 71 N.Y.2d 460, 527 N.Y.S.2d 195, 522 N.E.2d 40. Courts
13.6(2)
A showing of agency for jurisdictional purposes will not be inferred from the mere existence of a parentsubsidiary relationship. Richbell Information Services, Inc. v. Jupiter Partners, L.P. (1 Dept. 2003) 309 A.D.2d
288, 765 N.Y.S.2d 575, issued 2003 WL 22182861. Courts
13.6(9)
101. Acts of principal imputed to agent, acts by agent or representative
Under New York law, corporation can act as the agent of a corporate officer and thus subject the officer to personal jurisdiction under state's long-arm statute. Beatie and Osborn LLP v. Patriot Scientific Corp., 2006, 431
13.6(4)
Under New York law, revenues from interstate commerce derived by corporation could not be attributed to its
employee, in determining whether employee, who was not resident of New York, derived revenue from inter-
Page 161
state commerce, so as to be subject to personal jurisdiction in New York. PC COM, Inc. v. Proteon, Inc., 1995,
76.25
Mere fact that agent provides services for principal does not mean that any state in which principal does business should be able to assert jurisdiction over that principal's agent. Birmingham Fire Ins. Co. of Pennsylvania v.
13.6(4)
KOA Fire & Marine Ins. Co., Ltd., 1983, 572 F.Supp. 962. Courts
Under New York law, the acts of a principal cannot subject its agent to personal jurisdiction. Holland v. Fahne76.20
stock & Co., Inc., 2003, 2003 WL 21697880, Unreported. Federal Courts
Corporation transacting business or committing tort in New York need not be alter ego of out-of-state corporate
officer in order for corporation's acts to subject officer to personal jurisdiction in New York; rather, jurisdiction
exists if corporation acted as officer's agent. Time Inc. v. Simpson, 2002, 2002 WL 31844914, Unreported.
13.6(4)
Courts
102. Agent as plaintiff, acts by agent or representative
When personal jurisdiction is asserted under “transacting business” provision of New York's long-arm statute
[N.Y. McKinney's CPLR 302] by agent against its principal, former cannot, for jurisdictional purposes, attribute
its activities in New York to the latter. New World Capital Corp. v. Poole Truck Line, Inc., 1985, 612 F.Supp.
166. See, also, Caballero Spanish Media, Inc. v. Betacom, Inc., D.C.N.Y.1984, 592 F.Supp. 1093; Wisehart, Friou & Koch v. Hoover, D.C.N.Y.1979, 473 F.Supp. 945; Sayles Biltmore Bleacheries, Inc. v. Soft-Fab Textile
Processors, Inc., D.C.N.Y.1977, 440 F.Supp. 1010; Traub v. Robertson-American Corp., 1975, 82 Misc.2d 222,
368 N.Y.S.2d 958. Federal Courts
76.20
For purposes of federal district court's jurisdiction pursuant to New York law governing jurisdiction by acts of
nondomiciliary, exception to bootstrap doctrine for exclusive agents who either work for no other principal or
engage in continuing course of dealing with principal was not applicable in context of brief, limited contractual
arrangement. I. Oliver Engebretson, Inc. v. Aruba Palm Beach Hotel & Casino, 1984, 587 F.Supp. 844. Federal
Courts
76.20
In determining whether foreign corporation was transacting business in state, under this section authorizing exercise of personal jurisdiction over nondomiciliaries who “transact any business within the state”, activities of
plaintiff employee of defendant in furtherance of employment contract were to be considered as those of defendant employer and constituted requisite transacting of business so that court had jurisdiction in employee's action
for alleged breach. Schneider v. J & C Carpet Co. (1 Dept. 1965) 23 A.D.2d 103, 258 N.Y.S.2d 717. Courts
13.6(2)
Rejection of the “boot strap” doctrine of an agent's reliance on his own activities, rather than those of alleged
client to establish jurisdiction, applies to independent contractors and to nonexclusive general agents. Ladenburg, Thalmann & Co., Inc. v. Scalleat, 1976, 86 Misc.2d 503, 383 N.Y.S.2d 168. Courts
13.6(1)
Page 162
Where the agent and not a third party sues the principal, the agent's acts will confer jurisdiction over the principal under this section only if the agency was an exclusive one. Hertz, Newmark and Warner v. Fischman, 1967,
13.6(1)
103. Clubs and associations, acts by agent or representative
Union member, in his action against employer, local and international unions for alleged breach of collective
bargaining agreement and duty of fair representation, failed to demonstrate agency relationship between local
and international unions sufficient to make local union agent of international union for purposes of invoking
long-arm jurisdiction over international union. Baldwin v. Poughkeepsie Newspapers, Inc., 1976, 410 F.Supp.
1080
648. Labor And Employment
While defendant Delaware corporation, which had its principal office in Illinois, did not have sufficient contacts
with New York to sustain a finding of jurisdiction, in that, inter alia, defendant had no offices or business facilities within New York, nevertheless acts of merchandisers association to which defendant belonged, in representing defendant in New York, would have to be attributed to defendant, with the result that contract between manufacturers association and plaintiff corporation, and association's activities in connection with plaintiff, established that the association “transacted business” in New York sufficient to sustain a finding of jurisdiction over
defendant Delaware corporation under this section. Arcata Graphics Corp. v. Murrays Jewelers & Distributors,
82
Where no parent subsidiary relationship existed between association of manufacturers organized under laws of
Illinois and which had no license to do business in New York, and manufacturer's group insurance trust fund
whose purpose was to make low cost group policy life insurance available to employees of member companies,
the elements of a joint enterprise were lacking, and no partnership between them was formed, the individual acts
of one could not be imputed to the other in determining presence in New York for jurisdictional purposes. Reger
v. National Ass'n of Bedding Mfrs. Group Ins. Trust Fund, 1975, 83 Misc.2d 527, 372 N.Y.S.2d 97. Courts
13.6(9)
104. Attorneys, acts by agent or representative
Actions taken by client's attorney, in contacting client's former attorney to obtain his consent to sale of client's
partnership interest to nonresident corporation, could not be imputed to corporation, for purposes of obtaining
personal jurisdiction over corporation under New York's long arm statute, where attorney was working in his
sole capacity as client's attorney. Whitaker v. Fresno Telsat, Inc., 1999, 87 F.Supp.2d 227, affirmed 261 F.3d
196. Federal Courts
79
Personal jurisdiction pursuant to New York's “transacting business” long-arm statute was vicariously established
over nondomiciliary former partners of attorneys' dissolved law firm, under principles of agency law, through attorneys' activities in forum on behalf of client on whose behalf bankruptcy trustee brought legal malpractice
claim. Durkin v. Shea, 1997, 957 F.Supp. 1360, stay vacated 1998 WL 74304. Federal Courts
76.20
Page 163
Attorneys' activities in sending letter to manufacturer and its customers, ordering them to cease and desist
selling certain notebook computers, were attributable to manufacturer's former president, who was resident of
Taiwan, for purpose of exercising jurisdiction over former president under New York long-arm statute, because
activities were on former president's behalf and were of benefit to him. Modern Computer Corp. v. Ma, 1994,
86
862 F.Supp. 938, 32 U.S.P.Q.2d 1586. Federal Courts
Managing general partner's testimony that he was aware of and was interested in what was transpiring in New
York prior to time he became a principal in transaction was insufficient to deem limited partners' attorney his
“agent” when attorney appeared in New York nor did he adopt and ratify attorney's negotiations in New York
when he subsequently joined in the deal so as to render him subject to personal jurisdiction under this section.
96
Plaza Realty Investors v. Bailey, 1979, 484 F.Supp. 335. Federal Courts
Maker of note had sufficient contacts with New York to be subject to court's personal jurisdiction in connection
with suit thereon, where maker had appointed New York attorney as agent to secure additional financing for
partnership into which maker had bought with note. Barclays American/Business Credit, Inc. v. Boulware (1
Dept. 1989) 151 A.D.2d 330, 542 N.Y.S.2d 587. Courts
13.5(12)
Nondomiciliary husband was subject to the in personam jurisdiction of the state courts for committing a tortious
act in the state through the misrepresentations of his attorney, who had been directed by husband to travel from
Pennsylvania to New York and persuade husband's ex-wife to accept his terms for an agreement modifying divorce decree with respect to amount of child support and alimony. Abbate v. Abbate (2 Dept. 1981) 82 A.D.2d
368, 441 N.Y.S.2d 506. Child Support
507
105. Brokers, acts by agent or representative
Resolving in purchaser's favor factual doubts regarding the level of broker's participation in teleconferences with
another broker located in New York, negotiating the sale and purchase of diesel oil, broker's involvement
rendered District Court's exercise of personal jurisdiction over it proper under New York's long-arm statute.
Musket Corp. v. PDVSA Petroleo, S.A., 2009, 657 F.Supp.2d 436. Federal Courts
79
New York broker did not act as “agent,” within meaning of this section, of Colorado partnership and one of its
general partners in negotiating proposed sale of shopping center and, therefore, there was no basis for personal
jurisdiction over the partnership and partner in action seeking damages for alleged fraud and breach of warranty
in connection with the proposed transaction. Pasame Realty Corp. v. Ridge Village Partnership, 1983, 568
85
New York had jurisdiction over broker's action against purchaser of property located in Connecticut to recover
real estate brokerage commission, given substantial relationship between parties' New York meeting and
broker's claim that purchaser's representative had agreed to pay a commission to broker. Charles H. Greenthal
Commercial Corp. v. Equity Residential Properties Trust (1 Dept. 2002) 300 A.D.2d 47, 751 N.Y.S.2d 181.
Courts
13.5(3)
Page 164
Broker's employee, in taking nonresident buyer's stock purchase order over the phone, did not become buyer's
agent within New York for jurisdictional purposes. Barington Capital Group, L.P. v. Arsenault (1 Dept. 2001)
13.6(2)
281 A.D.2d 166, 721 N.Y.S.2d 58. Courts
The acts of independent broker, which represented many different companies on a commission basis, did not
constitute acts of so-called principal, the defendant nondomiciliary corporation which broker represented, and
did not create a basis for jurisdiction of broker's contract action against defendant under this section. A. Millner
13.6(2)
Co. v. Noudar, Lda. (1 Dept. 1966) 24 A.D.2d 326, 266 N.Y.S.2d 289. Courts
106. Co-conspirators, acts by agent or representative--In general
Exercise of personal jurisdiction over foreign holding company, which was parent of co-defendant domestic cigarette manufacturer, was not warranted under New York long-arm statute based on allegation that holding company was member of conspiracy to conceal and misrepresent health risks from smoking; major events in alleged
conspiracy took place before holding company existed, and plaintiffs failed to argue that holding company was
successor of an entity that was involved in those events. Laborers Local 17 Health and Ben. Fund v. Philip Mor86
ris, Inc., 1998, 26 F.Supp.2d 593. Federal Courts
In an appropriate case the acts of the coconspirator may be attributed to a defendant for purpose of obtaining
personal jurisdiction over defendant. Louis Marx & Co., Inc. v. Fuji Seiko Co., Ltd., 1978, 453 F.Supp. 385.
See, also, Ghazoul v. International Management Services, Inc., D.C.N.Y.1975, 398 F.Supp. 307; Lehigh Valley
Industries, Inc. v. Birenbaum, D.C.N.Y.1975, 389 F.Supp. 798, affirmed 527 F.2d 87; Socialist Workers Party v.
Attorney General of U.S., D.C.N.Y.1974, 375 F.Supp. 318. Federal Courts
76.10
Acts of co-conspirator may be attributed to defendant in appropriate case, for purposes of obtaining personal jurisdiction over defendant under New York long-arm statute. In re Med-Atlantic Petroleum Corp., 1999, 233 B.R.
644. Courts
13.6(7)
Out-of-state defendant may be held responsible, for jurisdictional purposes under the New York long-arm statute, for acts of co-conspirator in carrying out activities in New York in accordance with conspiracy. In re MedAtlantic Petroleum Corp., 1999, 233 B.R. 644. Courts
13.6(7)
Pursuant to alleged conspiracy between vice-president of New York corporation and Japanese corporation, vicepresident was Japanese defendants' “agent” in New York and in that context acts performed by vice-president
conferred jurisdiction over Japanese defendants in action alleging defendants conspired to defraud the New York
corporation. Travelers Indem. Co. v. Inoue (1 Dept. 1985) 111 A.D.2d 686, 490 N.Y.S.2d 506. Federal Courts
86
Part of charterer corporation's eleventh cause of action in suit against its carrier on insurance bond providing
“employee dishonesty coverage,” charter agent, and two individual defendants was conspiratorial conduct of
agent, individuals and charterer's employees and officers who were employed at charterer's office in New York,
and thus acts of coconspirators, who in law were agents of charter agent and individual defendants, were acts of
Page 165
charter agent and individuals, and were sufficient, within meaning of this section, to confer in personam jurisdiction on individuals and their corporation. Prudential Lines, Inc. v. Firemen's Ins. Co. of Newark, N. J. (1
13.5(14); Courts
13.6(7)
107. ---- Allegations required, co-conspirators, acts by agent or representative
Although under New York law acts of co-conspirator of out-of-state defendant may subject that out-of-state defendant to personal jurisdiction in New York, plaintiffs must allege facts demonstrating prima facie conspiracy,
and must allege facts warranting inference that defendants were members of conspiracy. Universal Marine Med96
ical Supply, Inc. v. Lovecchio, 1998, 8 F.Supp.2d 214. Federal Courts
Acts of conspirator may be attributed to coconspirator to obtain personal jurisdiction over latter under New York
law; mere allegation of conspiracy, however, does not suffice for purposes of long-arm statute, as, at minimum,
plaintiff must allege specific facts that, if proven, would demonstrate defendant's membership in conspiracy.
Soltex Polymer Corp. v. Fortex Industries, Inc., 1984, 590 F.Supp. 1453. See, also, Singer v. Bell,
D.C.N.Y.1984, 585 F.Supp. 300; Clark v. U.S., D.C.N.Y.1979, 481 F.Supp. 1086; Merkel Associates, Inc. v.
Bellofram Corp., D.C.N.Y.1977, 437 F.Supp. 612; Chemical Bank v. World Hockey Ass'n, D.C.N.Y.1975, 403
94
New York Federal District Court lacked jurisdiction over nonresident individual defendants charged with precipitating breach of plaintiff's management contract with corporation, in absence of any indication of factual
support for jurisdictional allegations that conspiracy existed, that individual defendants were acting in furtherance of their own interests rather than what they conceived in good faith to be interest of their corporate employer, or that employees sent to New York in furtherance of alleged conspiracy were acting as agents of individual
defendants rather than of corporate employer. Unicon Management Corp. v. Koppers Co., 1966, 250 F.Supp.
850. Federal Courts
88
108. ---- Burden of proof, co-conspirators, acts by agent or representative
To warrant the inference that a defendant was a member of the conspiracy for purposes of exercising personal
jurisdiction under New York's long-arm statute, plaintiffs must show that: (1) the defendant had an awareness of
the effects in New York of its activity; (2) the activity of the co-conspirators in New York was to the benefit of
the out-of-state conspirators; and (3) the co-conspirators acting in New York acted at the direction or under the
control or at the request of or on behalf of the out-of-state defendant. Maersk, Inc. v. Neewra, Inc., 2008, 554
13.6(7)
To warrant the inference that a defendant was a member of the conspiracy, as would establish personal jurisdiction under New York's long-arm statute, plaintiffs must show that (1) defendant had an awareness of the effects
in New York of its activity, (2) the activity of the co-conspirators in New York was to the benefit of the outof-state conspirators, and (3) the co-conspirators acting in New York acted at the direction or under the control
of or at the request of or on behalf of the out-of-state defendant. In re Terrorist Attacks on September 11, 2001,
2005, 392 F.Supp.2d 539, affirmed 538 F.3d 71, certiorari denied 129 S.Ct. 2859, 174 L.Ed.2d 576. Courts
13.6(7)
Page 166
For New York's long-arm statute to provide a basis for personal jurisdiction in a civil conspiracy action, the
plaintiffs are not required to establish the existence of a formal agency relationship between the defendants and
their putative co-conspirators. In re Terrorist Attacks on September 11, 2001, 2005, 349 F.Supp.2d 765, on reconsideration in part 392 F.Supp.2d 539, affirmed 538 F.3d 71, certiorari denied 129 S.Ct. 2859, 174 L.Ed.2d
13.6(7)
576, affirmed 714 F.3d 118, petition for certiorari filed 2013 WL 4970379. Courts
To warrant the inference that an out-of-state defendant was a member of a conspiracy, as required for a court to
exercise personal jurisdiction under New York's long-arm statute on the basis of the acts of co-conspirators in
New York, plaintiffs must show that: (1) the defendant had an awareness of the effects in New York of its activity; (2) the activity of the co-conspirators in New York was to the benefit of the out-of-state conspirators; and
(3) the co-conspirators acting in New York acted at the direction or under the control or at the request of or on
behalf of the out-of-state defendant. In re Terrorist Attacks on September 11, 2001, 2005, 349 F.Supp.2d 765, on
reconsideration in part 392 F.Supp.2d 539, affirmed 538 F.3d 71, certiorari denied 129 S.Ct. 2859, 174 L.Ed.2d
13.6(7)
576, affirmed 714 F.3d 118, petition for certiorari filed 2013 WL 4970379. Courts
Under New York law, to establish jurisdiction over a nondomiciliary defendant on the basis of the New York
acts of a co-conspirator, the plaintiff must (1) establish a prima facie case of conspiracy, (2) allege specific facts
warranting the inference that the defendant was a member of the conspiracy, (3) demonstrate the commission of
a tortious act in New York, and (4) demonstrate the requisite agency relationship between the nondomiciliary
defendant and the in-state tortfeasor. First Capital Asset Management, Inc. v. Brickellbush, Inc., 2002, 218
F.Supp.2d 369, on reconsideration 219 F.Supp.2d 576, affirmed 385 F.3d 159. Courts
13.6(7); Courts
32.5(2)
The requisite relationship, to establish personal jurisdiction over nondomiciliary defendant on the basis of New
York acts of a co-conspirator, under New York's long-arm statute, is established by a showing that: (1) the defendant had an awareness of the effects in New York of its activity; (2) the activity of the co-conspirator was to
the benefit of the out-of-state conspirator; and (3) the co-conspirator acting in New York acted at the direction or
under the control or at the request or on behalf of the out-of-state defendant. First Capital Asset Management,
Inc. v. Brickellbush, Inc., 2002, 218 F.Supp.2d 369, on reconsideration 219 F.Supp.2d 576, affirmed 385 F.3d
159. Courts
13.6(7)
Requisite relationship between non-resident defendant and its New York co-conspirators is established, for purpose of determining personal jurisdiction, by showing that (1) defendant had awareness of effects in New York
of its activity; (2) activity of co-conspirators in New York was to benefit of out-of-state conspirators; and (3) coconspirators acting in New York acted at direction or under control, or at request of or on behalf of non-resident
defendant. Best Cellars Inc. v. Grape Finds at Dupont, Inc., 2000, 90 F.Supp.2d 431, 54 U.S.P.Q.2d 1594.
Courts
13.6(7)
To impute conduct to out-of-state coconspirator, for purposes of establishing personal jurisdiction under statute
that permits assertion of jurisdiction over those who commit torts in New York, plaintiff must show that each
defendant had awareness of effects in New York of its activity, that activity of coconspirators in New York was
to the benefit of each out-of-state conspirator as to whom personal jurisdiction is sought, and that coconspirators
Page 167
acting in New York acted “at the direction or under the control,” or “at the request of or on behalf of” nonresident defendants. Daniel v. American Bd. of Emergency Medicine, 1997, 988 F.Supp. 127, disapproved in later
76.20
appeal 428 F.3d 408. Federal Courts
Antitrust plaintiff need not demonstrate formal agency relationship between defendant and its alleged coconspirators to impute activity of co-conspirator in New York for jurisdictional purposes, whether coconspirator was physically within New York or not, to non-resident defendant, if plaintiff shows that defendant
had awareness of effects of conspiracy in New York, that activity of co-conspirators in New York was to benefit
out-of-state co-conspirators, and that co-conspirators who acted in New York acted at direction, under control, at
request, or on behalf of out-of-state defendants. Daniel v. American Bd. of Emergency Medicine, 1997, 988
76.20
F.Supp. 127, disapproved in later appeal 428 F.3d 408. Federal Courts
109. ---- Sufficiency of evidence, co-conspirators, acts by agent or representative
No evidence indicated that out-of-state hospitals had any knowledge that conduct of their alleged coconspirators
would have any effect in New York and, thus, there was no basis for asserting personal jurisdiction over hospitals for participating in alleged conspiracy to deprive physicians of emergency room certification; even if hospitals knew that requiring certification affected physicians in every state, and even if some physicians practicing at
hospitals were affiliated with various emergency medicine professional organizations, nonresident hospitals
would not have perceived that their hiring requirements would affect physicians outside state in which each hospital was located. Daniel v. American Bd. of Emergency Medicine, 1997, 988 F.Supp. 127, disapproved in later
appeal 428 F.3d 408. Federal Courts
96
Record established that plaintiff had not made a “sufficient start” towards showing that nonresident defendants
were coconspirators with other defendants in making misrepresentations or in soliciting customers in New York
or that their connection with enterprise in Texas and the activities there might have been responsible for other
transaction of business in New York or for tort committed in New York so as to permit exercise of in personam
jurisdiction. Heisel v. Safran (4 Dept. 1986) 120 A.D.2d 969, 503 N.Y.S.2d 464. Courts
13.6(7)
110. Corporate personnel, acts by agent or representative--In general
Under New York long-arm statute, individual defendant may be subject to specific personal jurisdiction based
on his actions in his corporate capacity only when plaintiff can show that the corporation was acting as individual defendant's agent. Duravest, Inc. v. Viscardi, A.G., 2008, 581 F.Supp.2d 628. Courts
13.6(4)
Under New York law, court which had personal jurisdiction over non-resident companies could also exercise
personal jurisdiction over their president and controlling shareholder, on theory that companies were merely acting as his agents. Thomas Pub. Co. v. Industrial Quick Search, Inc., 2002, 237 F.Supp.2d 489. Federal Courts
76.20
In examining a nondomiciliary's contacts with New York, the acts of a corporation can be attributed to individuals under an agency theory for purposes of long-arm statute; plaintiff is not required to show formal agency rela-
Page 168
tionship between defendant and corporate agent, but rather must show that the agent transacting business engaged in purposeful activity in the state (1) that related to the transaction underlying the lawsuit, (2) that was
taken for the benefit and with the knowledge of defendant, and (3) over which defendant exercised some control.
13.6(4)
H.S.W. Enterprises, Inc. v. Woo Lae Oak, Inc., 2001, 171 F.Supp.2d 135. Courts
Under New York law, even when corporate officer's contacts with forum are insufficient to establish personal
jurisdiction over officer, long-arm jurisdiction over corporation can be imputed to officer so long as corporation
can be deemed to have acted in forum as corporate officer's agent such that actions are attributable to officer.
13.6(4)
Packer v. TDI Systems, Inc., 1997, 959 F.Supp. 192. Courts
Court did not have personal jurisdiction over treasurer of Tennessee company that was allegedly infringing
trademark; there was no evidence that treasurer had anything to do with sales or advertisements shown in New
York. Alpha International, Inc. v. T-Reproductions, Inc., 2003, 2003 WL 21511957, Unreported. Trademarks
1558
111. ---- Acts in corporate capacity, corporate personnel, acts by agent or representative
New York's long-arm statute did not confer personal jurisdiction over Panamanian corporation, in judgment
creditors' action against judgment debtor and his relatives, alleging that defendants conspired to hinder collection of judgment, although creditors alleged that corporation was alter ego of debtor's uncle; creditors cited no
authority for argument that corporation was uncle's alter ego, and thus that uncle's jurisdictional contacts were
attributable to corporation under principles of agency. First Capital Asset Management, Inc. v. Brickellbush,
Inc., 2002, 218 F.Supp.2d 369, on reconsideration 219 F.Supp.2d 576, affirmed 385 F.3d 159. Federal Courts
86
Corporations acted for benefit of, with knowledge and consent of, and under some control of Swiss uncle of
judgment debtor, as would support exercise of personal jurisdiction over uncle, under New York long-arm statute authorizing exercise of jurisdiction over nondomiciliaries for tort and contract claims arising from uncle's
transaction of business in state, on judgment creditors' fraudulent conveyance claims; witness testified that he
and another acted as corporate agents, that uncle had knowledge of and consented to corporations' activities, and
that corporations acted ultimately for uncle's benefit. First Capital Asset Management, Inc. v. Brickellbush, Inc.,
2002, 218 F.Supp.2d 369, on reconsideration 219 F.Supp.2d 576, affirmed 385 F.3d 159. Federal Courts
86
Fact that promoter, a New York resident, had business dealings with Indiana non-profit corporation hosting
beauty pageant, and made promises to pageant producer about promotion of pageant, did not make promoter an
agent of the corporation, as would render corporation subject to personal jurisdiction under New York's longarm statute in producer's breach of contract action against corporation. Anderson v. Indiana Black Expo, Inc.,
82
Fact that promoter, a New York resident, paid producer of beauty pageant money in connection with production
of pageant hosted by Indiana non-profit corporation did not make promoter an agent of the corporation, as would
render corporation subject to personal jurisdiction under New York's long-arm statute in producer's breach of
Page 169
contract action against corporation. Anderson v. Indiana Black Expo, Inc., 2000, 81 F.Supp.2d 494. Federal
82
Courts
Canadian corporation was not transacting business in New York, for purpose of long-arm jurisdiction, where although it developed word processing equipment at issue in breach of warranty action, it had sold the units to another in Canada in connection with acquisition of 15 percent of the other's shares and the other, in turn, sold
equipment to plaintiff and developer's name was not used in connection with the sale; fact that entity which sold
units to plaintiff may have been formed by former employees of developer did not support inference that seller
was an agent of the developer and neither did post sale representations made to buyer in Texas by developer's
employee or use of developer's offices, the only place subject units were being used at the time, to train
plaintiff's personnel. Morse Typewriter Co., Inc. v. Samanda Office Communications Ltd., 1986, 629 F.Supp.
86
Under this section where former executive vice-president of magazine and book distributor was acting in his
corporate capacity when he allegedly made oral promise to pay publisher's printing bill if printer shipped
magazines, jurisdiction could not be asserted over former executive vice-president, in his individual capacity, in
action brought by printer to recover outstanding printing and shipping bills for services rendered to publisher.
Goshen Litho, Inc. v. Kohls, 1983, 582 F.Supp. 1561. Federal Courts
76.20
Corporate officer acting on corporate business in foreign state does not thereby become amenable to suit in his
or her personal capacity in that jurisdiction. Trafalgar Capital Corp. v. Oil Producers Equipment Corp., 1983,
555 F.Supp. 305. See, also, Grove Press, Inc. v. Central Intelligence Agency, D.C.N.Y.1980, 483 F.Supp. 132;
Louis Marx & Co., Inc. v. Fuji Seiko Co., Ltd., D.C.N.Y.1978, 453 F.Supp. 385; Lehigh Valley Industries, Inc.
v. Birenbaum, D.C.N.Y.1975, 389 F.Supp. 798, affirmed 527 F.2d 87; Path Instruments Intern. Corp. v. Asahi
Optical Co., D.C.N.Y.1970, 312 F.Supp. 805. Federal Courts
76.20
Former officers and directors who had in New York executed on behalf of dissolved corporation an underwriting
agreement which in its prefatory clause designated addressee as the underwriter and the undersigned as the corporation and which in its body set forth rights and obligations of the underwriter and the corporation were not
subject to jurisdiction of New York in suit for breach of agreement on basis of out-of-state service of process on
theory that they transacted business in New York for their own personal benefit and profit. Schenin v. Micro
Copper Corp., 1967, 272 F.Supp. 523. Federal Courts
76.20
Conclusory allegations that individual was agent for nonresident corporation were insufficient to establish that
individual engaged in purposeful activities in New York for benefit of corporation or that corporation exercised
sufficient control over individual to make him their agent, and thus plaintiff failed to establish that New York
court had personal jurisdiction over nonresident corporation. Polansky v. Gelrod (3 Dept. 2005) 20 A.D.3d 663,
32.5(2)
Civil defendant's status as officer of corporate defendant which might be subject to jurisdiction of state did not
render defendant personally subject to such jurisdiction, where defendant had no other contacts with state. Baran
Computer Services, Ltd. v. First Bank of Maury County (2 Dept. 1988) 143 A.D.2d 63, 531 N.Y.S.2d 315.
Courts
Page 170
13.6(4)
Corporation which allegedly solicited, without authorization, subscriptions to a publisher's magazines was not
the agent of its principal, so as to allow the New York long-arm statute to reach the principal; there was no
showing that the principal had any personal involvement in the events giving rise to the publisher's claims or
that the alleged acts took place with his knowledge and consent; the principal explained that the corporation had
no employees because most of its services were performed by outside vendors, and there was no evidence that
the principal exercised control over a vendor or had any personal involvement in any decisions made by or actions taken by the vendor. Time, Inc. v. Simpson, 2003, 2003 WL 23018890, Unreported. Federal Courts
76.25
112. ---- Primary actor, generally, corporate personnel, acts by agent or representative
Former Florida licensees' owner, as a primary actor in transactions that gave rise to contract and trademark
claims asserted by New York nautical services corporation, was subject to personal jurisdiction of New York
federal court under New York state long-arm statute. Sea Tow Services Intern., Inc. v. Pontin, 2007, 472
76.20
Personal jurisdiction over individual defendants employed by a non-domiciliary corporation was appropriate under New York state long-arm statute, where the out-of-state corporate officers were primary actors in the transactions in New York that gave rise to the litigation, and not merely some corporate employees who played no
part in it. Sea Tow Services Intern., Inc. v. Pontin, 2007, 472 F.Supp.2d 349. Federal Courts
76.20
Corporate officer of Canadian trademark infringement defendant was not subject to personal jurisdiction of federal court sitting in New York; officer had not transacted business in state in his individual capacity, allegedly
infringing website, though registered in officer's name, was owned by corporation, and there was no allegation
that officer was “primary actor” in matters in question. Merck & Co., Inc. v. Mediplan Health Consulting, Inc.,
2006, 425 F.Supp.2d 402, 79 U.S.P.Q.2d 1744, reconsideration denied 431 F.Supp.2d 425, 80 U.S.P.Q.2d 1540.
Trademarks
1559
To make a prima facieshowing of control over a corporation's transactions in New York by a corporate officer,
as will support personal jurisdiction over officer, under New York's long-arm statute, a plaintiff's allegations
must sufficiently detail the officer's conduct so as to persuade the court that the officer was a primary actor in
the specific matter in question; control cannot be shown based merely upon officer's title or position within the
corporation, or upon conclusory allegations that the officer controls the corporation. ADP Investor Communication Services, Inc. v. In House Attorney Services, Inc., 2005, 390 F.Supp.2d 212. Courts
13.6(4); Courts
32.5(2)
Before a defendant corporation may be found to be acting as the agent of a corporate officer, for purpose of determining personal jurisdiction over the officer, under New York's long-arm statute, courts require that the officer be a primary actor in the transaction carried out by the corporation. ADP Investor Communication Services, Inc. v. In House Attorney Services, Inc., 2005, 390 F.Supp.2d 212. Courts
13.6(4)
Page 171
Under New York long-arm statute, plaintiffs seeking to establish jurisdiction over out-of-state corporate officer
must sufficiently detail officer's conduct so as to persuade court that officer was primary actor in specific matter
in question; control cannot be shown based merely upon officer's title or position within corporation, or upon
conclusory allegations that officer controls corporation. In re Sumitomo Copper Litigation, 2000, 120 F.Supp.2d
13.6(4); Courts
32.5(2)
328. Courts
To establish that individual corporate directors exercised control over corporations's actions, so that corporation's actions were attributable to directors for purposes of establishing jurisdiction over directors under New
York long-arm statute, plaintiff must allege with sufficient detail that directors were primary actors in allegations that gave rise to action, which cannot be established by conclusory allegations or be based solely on directors' corporate titles. Reynolds Corp. v. National Operator Services, Inc., 1999, 73 F.Supp.2d 299. Courts
13.6(4); Courts
32.5(2)
To find that corporation is acting as agent of corporate officer, such that corporation's activities can subject officer to personal jurisdiction under “doing business” prong of New York long-arm statute, officer must be a
“primary actor” in transaction carried out by corporation, meaning that officer had knowledge of, and consented
to, transaction carried out by corporation and exercised some control over corporation. Champion Motor Group,
Inc. v. Visone Corvette of Massachusetts, Inc., 1998, 992 F.Supp. 203. Federal Courts
76.20
113. ---- Directors, corporate personnel, acts by agent or representative
Under New York's long-arm statute, district court had jurisdiction over member of employer's board of directors
who resided in Italy, where employee alleged that board member was found, had agents, and transacted business
in New York. Robins v. Max Mara, U.S.A., Inc., 1996, 923 F.Supp. 460, reconsideration denied 1996 WL 88565
. Federal Courts
94
114. ---- Fiduciary shield doctrine, corporate personnel, acts by agent or representative
Officers of franchisor who were part of franchisor's purposeful activities in New York in selling franchises and
who benefitted from those transactions and exercised exclusive control over the franchisor were subject to longarm jurisdiction in New York on basis of having transacted business there, despite claim that they were mere
agents of the corporation; fiduciary shield doctrine did not apply. Retail Software Services, Inc. v. Lashlee,
C.A.2 (N.Y.)1988, 854 F.2d 18. Federal Courts
76.20
Nondomiciliary deceased who was general manager of nondomiciliary corporation for which New York residents were contractual agents was not protected by his fiduciary capacity from suit in New York in which it was
charged that the New York residents were also personal agents of the deceased in a scheme to divert commissions from sales of corporate products to deceased's designees. U.S. v. Montreal Trust Co., C.A.2 (N.Y.)1966,
358 F.2d 239, certiorari denied 86 S.Ct. 1366, 384 U.S. 919, 16 L.Ed.2d 440, rehearing denied 86 S.Ct. 1858,
384 U.S. 982, 16 L.Ed.2d 693. Federal Courts
76.20
Plaintiff, a New York resident who allegedly had been denied equity interest in limited liability company (LLC)
Page 172
in lieu of direct compensation, as promised by shareholders of Colorado corporation, and who had brought suit
in New York for breach of contract against corporation, sufficiently alleged, under Colorado law, that owners of
Colorado corporation had disregarded corporation's separate existence, as required to pierce corporate veil to
impose liability on individual shareholders, subjecting them to personal jurisdiction under New York's long-arm
statute; plaintiff alleged that in their business dealings, shareholders acted in their own personal interest rather
than in the best interest of the corporation, that shareholders together created a shell LLC in order to induce numerous individuals to work for free for the corporation, and that both defendants personally benefited from this
conduct which occurred in New York state. Phillips v. Reed Group, Ltd., 2013, 2013 WL 3340293. Corporations
76.20
and Business Organizations
Fiduciary shield doctrine, which protects individuals from exercise of jurisdiction if their contacts with forum
state are solely in corporate capacity, is unavailable to defeat jurisdiction under New York's long-arm statute.
Champion Motor Group, Inc. v. Visone Corvette of Massachusetts, Inc., 1998, 992 F.Supp. 203. Courts
13.6(5)
With abandonment of fiduciary shield doctrine in New York, it is no longer necessary to pierce the corporate
veil or find that corporation is alter ego of individual officers in order to subject them to jurisdiction on basis of
corporation's contacts in New York. Kinetic Instruments, Inc. v. Lares, 1992, 802 F.Supp. 976, 25 U.S.P.Q.2d
76.20
New York fiduciary shield doctrine protected alleged franchisor's nonresident corporate officer who acted in
corporate capacity from being amenable to suit in individual capacity alleging fraud arising out of alleged franchise arrangement. Wallach Marine Corp. v. Donzi Marine Corp., 1987, 675 F.Supp. 838. Courts
13.6(6)
All actions of officers of foreign companies upon which assertion of jurisdiction under New York law were
premised occurred in those individuals' capacity as officers of their respective companies, and therefore, under
fiduciary-shield doctrine, such contacts could not subject them to district court's jurisdiction under New York
long-arm statute, N.Y.McKinney's CPLR 302(a). Nordic Bank PLC v. Trend Group, Ltd., 1985, 619 F.Supp.
542. See, also, Thomson McKinnon Securities, Inc. v. Hamiltonian Industries, Inc., D.C.N.Y.1985, 610 F.Supp.
5. Federal Courts
86
Under New York's fiduciary-shield doctrine an individual who has contact with the state only by virtue of his
acts as a fiduciary of a corporation may be shielded from personal jurisdiction, but if the corporation is a mere
shell for its owner, the owner's actions shall be viewed as being his own interest, and he will not be shielded
from personal jurisdiction. Lancer Products Inc. v. Rally Accessories, Inc., 1984, 597 F.Supp. 440. Federal
Courts
76.20
Where corporation for which individual defendant purports to act is merely shell he created to further his own
personal interests, he may not invoke fiduciary shield doctrine to preclude exercise of personal jurisdiction over
him under long-arm statute. Soltex Polymer Corp. v. Fortex Industries, Inc., 1984, 590 F.Supp. 1453. Federal
Courts
76.20
Page 173
Plaintiff by submitting documents showing that individual defendant at times had total ownership and control of
corporate network, that he was at times president and sole director of some of the corporations and that their
funds were directed to his personal use succeeded in making prima facie showing which would preclude application of “fiduciary shield” doctrine of New York law, under which activity in New York by corporate officer for
corporate business purposes provides basis for jurisdiction over corporation but not over individual, and it was
not necessary for plaintiff to show that corporate veil should be pierced, in view of plaintiff's allegations, nor
was plaintiff required to show that every transaction of business by the corporations, or even the transaction on
which case at bar was based, benefitted such individual defendant personally. Puerto Rico Maritime Shipping
76.20
Authority v. Almogy, 1981, 510 F.Supp. 873. Federal Courts
Under this section, activities of a corporate officer taken on behalf of the corporate employer are protected by
so-called fiduciary shield and will not automatically subject the officer to personal jurisdiction of New York
courts; the doctrine, however, is flexible and should not be woodenly applied. Kinstler v. Saturday Evening Post
76
Co., 1981, 507 F.Supp. 113, 212 U.S.P.Q. 596. Courts
The fiduciary shield doctrine could not be used to insulate a corporate agent over whom jurisdiction was sought,
who had not physically entered New York but had acted on behalf of nondomiciliary corporations transacting
business in New York; the defendant was a primary actor in the transaction with the plaintiff in New York and
represented two corporations during their participation in purposeful corporate acts in New York and thus was
not entitled to be relieved from responding to the plaintiff's claims that he acted improperly in representing the
corporations. Kreutter v. McFadden Oil Corp., 1988, 71 N.Y.2d 460, 527 N.Y.S.2d 195, 522 N.E.2d 40. Courts
13.6(6)
Fiduciary shield doctrine does not preclude the assertion of personal jurisdiction over an agent who commits a
tort while acting in the state on behalf of a corporation. Hasbro Bradley, Inc. v. Coopers & Lybrand (1 Dept.
1986) 121 A.D.2d 870, 503 N.Y.S.2d 792. Courts
13.6(6)
As general rule, fiduciary shield doctrine protects out-of-state corporate officer from being subject to jurisdiction of state courts for tortious acts committed outside state, unless officer was acting in his own personal interest rather than on behalf of corporation. Sheldon v. Kimberly-Clark Corp. (2 Dept. 1984) 105 A.D.2d 273,
482 N.Y.S.2d 867. See, also, Conniff v. Dodd, Mead & Co., D.C.N.Y.1984, 593 F.Supp. 266; Agra Chemical
Distributing Co., Inc. v. Marion Laboratories, Inc., D.C.N.Y.1981, 523 F.Supp. 699. Courts
13.6(6)
115. ---- Officers, corporate personnel, acts by agent or representative
For corporation to be considered an agent of its corporate officer for purposes of specific personal jurisdiction
under New York long-arm statute, plaintiff must allege (1) that corporation engaged in purposeful activities in
New York in relation to the transaction, (2) that corporation's activities were performed for the benefit of officer,
(3) that corporation's activities were performed with officer's knowledge and consent, and (4) that officer exercised some control over corporation. Duravest, Inc. v. Viscardi, A.G., 2008, 581 F.Supp.2d 628. Courts
13.6(4)
Page 174
New York law firm's former corporate client did not act as agent for its former chief executive officer (CEO) for
purposes of subjecting former CEO to personal jurisdiction in New York in firm's action for, inter alia, tortious
interference with contract, even though former CEO conceded that he was principally involved in negotiating
former client's retainer agreement with firm and was subsequently involved in firm's representation of former
client, given absence of allegation by law firm that former client's activities were performed for former CEO's
76.20
benefit. Beatie and Osborn LLP v. Patriot Scientific Corp., 2006, 431 F.Supp.2d 367. Federal Courts
Although “fiduciary shield” doctrine does not apply in New York to insulate corporate officer from long-arm
jurisdiction for acts taken on corporation's behalf, plaintiff still must show either that officer's own contacts with
state satisfy long-arm statute's requirements or that court's jurisdiction over corporation should be imputed to officer under agency theory. Merck & Co., Inc. v. Mediplan Health Consulting, Inc., 2006, 425 F.Supp.2d 402, 79
13.6(5)
U.S.P.Q.2d 1744, reconsideration denied 431 F.Supp.2d 425, 80 U.S.P.Q.2d 1540. Courts
Under New York law, although personal jurisdiction over a corporation is normally premised upon jurisdiction
over an individual defendant through agency principles, the opposite is also possible: a corporation can act as
the agent of a corporate officer so that its activities in New York can subject the officer to jurisdiction. ADP Investor Communication Services, Inc. v. In House Attorney Services, Inc., 2005, 390 F.Supp.2d 212. Courts
13.6(4); Federal Courts
82
Under New York law, officer and fifty percent shareholder of corporation was chargeable with corporation's
acts, for purpose of determining court's personal jurisdiction over her. 777388 Ontario Ltd. v. Lencore Acoustics
Corp., 2001, 142 F.Supp.2d 309. Federal Courts
76.20
Under New York law, officers of corporation, which allegedly acted as their agent, were chargeable with corporation's acts, for purpose of determining court's personal jurisdiction over them. 777388 Ontario Ltd. v. Lencore
Acoustics Corp., 2001, 142 F.Supp.2d 309. Federal Courts
76.20
Under New York's long-arm statute, court had specific personal jurisdiction over officers and directors of introducing broker in investors' Racketeer Influenced and Corrupt Organizations Act (RICO) action based on broker's
alleged activities in New York to artificially inflate copper futures prices, where broker traded copper on Comex
division of New York Merchantile Exchange, defendants each knew of, consented to, and benefitted from these
transactions and holdings, Commodity Futures Trading Commission (CFTC) special accounts form named officers as persons controlling trading in broker's account, and both officers traveled to New York to conduct business related to trading on Comex, and met with alleged co-conspirators. In re Sumitomo Copper Litigation,
76.20
Under New York law, Texas corporation's contacts with New York were insufficient to establish long-arm jurisdiction over corporation that could be imputed to corporation's officer in contract action arising out of guaranty
between Pennsylvania corporation and its corporate officer and Texas corporation and its corporate officer;
Texas corporation's contacts with state had only attenuated relationship to allegations in complaint. Packer v.
TDI Systems, Inc., 1997, 959 F.Supp. 192. Federal Courts
79
Page 175
District court could not exercise personal jurisdiction over individual members of medical certification board in
antitrust action brought in New York, where members were not New York residents, and did not have any contacts with New York except as officers or directors of the board. Daniel v. American Bd. of Emergency Medi969
cine, 1992, 802 F.Supp. 912. Antitrust And Trade Regulation
Corporations' president acted as agent on behalf of corporations and corporations' vice-president when he
entered into various security agreements, for purpose of determining whether corporations and vice-president
were subject to personal jurisdiction in New York under New York long-arm statute; defendants had signed
agreement authorizing president to bind them to security agreements. Paribas Corp. v. Shelton Ranch Corp.,
76.20
Corporate officers were, prima facie, subject to personal jurisdiction, under New York's long-arm statute, with
respect to state claims against them, on basis of acts committed outside New York which injured rights holders
within the state, or doing of business and engaging in persistent course of conduct in New York; moreover, attendance at meetings constituted transacting business in New York. In re Union Carbide Corp. Consumer
Products Business Securities Litigation, 1987, 666 F.Supp. 547. Federal Courts
76.20
There is no constitutional violation in subjecting corporate officers to New York State personal jurisdiction
where they have committed tort in New York as an agent of nonresident corporation or where they have committed tort outside New York as agent of nonresident corporation and injury has occurred in New York and there
are sufficient independent personal contacts with New York to support jurisdiction. Merkel Associates, Inc. v.
Bellofram Corp., 1977, 437 F.Supp. 612. Federal Courts
76.20
President of New Jersey employer was within personal jurisdiction of New York federal district court under
New York long-arm statute, in New York employee benefit plans' action against employer and president for unpaid contributions, where employer performed work in New York and president, as employer's representative,
was required to make contributions to plans, which maintained offices in New York. Mason Tenders Dist. Council Welfare Fund v. M & M Contracting & Consulting, 2000, 193 F.R.D. 112. Federal Courts
76.20
New York courts had personal jurisdiction over individual officers of corporation who had allegedly committed
actions in New York which, if established, would constitute common-law fraud, regardless of whether managers
were on business of their employers while they were in New York. CPC Intern. Inc. v. McKesson Corp., 1987,
13.6(6)
Absent evidence that president of foreign corporate sales agency as individual engaged in any activity whatsoever in state, president was not subject to jurisdiction of state court. Laufer v. Ostrow, 1982, 55 N.Y.2d 305, 449
N.Y.S.2d 456, 434 N.E.2d 692. Courts
13.6(4)
That foreign defendants owned stock and exercised control over corporate defendant, without more, was insufficient basis to make corporate defendant's president an agent of foreign defendants for jurisdictional purposes.
American Barrick Resources Corp. v. Canarim Inv. Corp. Ltd. (1 Dept. 1989) 153 A.D.2d 546, 544 N.Y.S.2d
838. Courts
Page 176
13.6(4)
Non-profit advisory association for excess and surplus lines brokers, created by statute, made no showing that
officer of insurance company individually performed business activities in New York, rather than merely as employee or agent of company, precluding court's personal jurisdiction over officer, under state's long-arm statute,
in association's action seeking to enforce excess-line law. Excess Line Ass'n of New York v. Waldorf & Asso13.6(4)
ciates, 2013, 40 Misc.3d 759, 965 N.Y.S.2d 831. Courts
Federal district court, sitting in New York and presiding over breach of contract and fraud suit, had personal jurisdiction, under New York long-arm statute and consistent with due process, over officer and director of corporation that was subject to New York jurisdiction, when officer and director assumed role in negotiation of contract at issue in present case. Regency Capital, LLC v. Corpfinance Intern., Inc., 2003, 2003 WL 22400200, Un3965(10); Federal Courts
76.20
reported. Constitutional Law
Court had personal jurisdiction, under New York long-arm statute, over head officer of company that was allegedly engaging in trademark infringement by displaying trademark on its Internet website after revocation of
license; in addition to his position in company, officer had been original licensee of trademark, shared domicile
with company's headquarters and personally signed direct mailer advertisement displaying trademark following
revocation. Alpha International, Inc. v. T-Reproductions, Inc., 2003, 2003 WL 21511957, Unreported. Trademarks
1560
In a personal jurisdiction analysis, the revenues of corporation are disregarded in determining whether a corporate officer, as an employee, derives substantial revenue from interstate commerce, in absence of prima facie
showing that the corporate acts were attributable to the officer under a theory of agency or an alter ego relationship. Ahava Food Corp. v. Donnelly, 2002, 2002 WL 31757449, Unreported. Courts
13.6(4)
116. Dealers and distributors, acts by agent or representative
Federal district court sitting in New York had personal jurisdiction over Italian manufacturer of mens' overcoats
and its owner, sued by New York distributor for breach of contract, trademark infringement and unfair competition, under state long-arm statute conferring jurisdiction when tortious act was committed within state by agent
of defendant; there was evidence that English distributor, acting as manufacturer's agent, falsely informed New
York buyers that New York distributor was no longer the source of overcoats in question. Mario Valente
Collezioni, Ltd. v. Confezioni Semeraro Paolo, S.R.L., 2000, 115 F.Supp.2d 367, affirmed 264 F.3d 32, on remand 174 F.Supp.2d 170. Federal Courts
86; Trademarks
1558
Under New York law, Swiss corporation, which manufactured allegedly infringing gear-cutting machine, was
subject to personal jurisdiction in New York, even though corporation sold its machines through independent
distributor; technical service employee of corporation went to New York to assist in operation of machine, and
corporation's chief executive officer (CEO) had been to New York and had been seen at facility while machine
was in use. Gleason Works v. Klingelnberg-Oerlikon Geartec Vertriebs-GmbH, 1999, 58 F.Supp.2d 47. Patents
288(3)
Page 177
Foreign candy manufacturer's distributor was not “agent” of manufacturer within meaning of provision of New
York long-arm statute permitting exercise of jurisdiction over nondomiciliary who commits tortious act within
state through agent, as required to exercise personal jurisdiction over manufacturer in trademark infringement
action; although distributor allegedly sold infringing lollipops in New York that were marked for sale in United
States, there was no evidence it knew sales could be expected in New York. Topps Co., Inc. v. Gerrit J. Verburg
1558
Co., 1997, 961 F.Supp. 88, 42 U.S.P.Q.2d 1943. Trademarks
Role of New York resident corporation as long-time sole licensee and distributor for patent and as entity responsible for policing use of patent in the United States was sufficient to establish, prima facie, that it was
“agent” of Japanese patent owner for purposes of New York long-arm statute, and since corporation's activities
were directly related to dispute over validity and infringement of patent, district court had personal jurisdiction
by virtue of transaction of business by licensee. Dillard Dept. Stores, Inc. v. Application Art Laboratories Co.,
288(1)
1992, 787 F.Supp. 49, 22 U.S.P.Q.2d 1287. Patents
Where defendant New York corporation was German corporation's exclusive distributor in the United States,
New York corporation was supplied by German corporation at no expense with both brochures and advertising
which New York corporation used to solicit business for both corporations, and where the two corporations had
a principal officer in common throughout period involved in the litigation, German corporation was transacting
business in New York within meaning of this section. American Messer Corp. v. Travelers Indem. Co., 1968, 45
F.R.D. 265. Federal Courts
82; Federal Courts
86
Genuine issue of material fact existed as to whether German manufacturer of meat packing machine, which
caused user's injuries in New York, had sufficient minimum contacts with New York so as to be subject to longarm jurisdiction by virtue of contractual designation of exclusive distributor and promoter of machine for all territories of the United States and distributor's activities in servicing and repairing machines sold in New York and
distributor's activity in warranting machines, precluding summary judgment. Kappas v. T.W. Kutter, Inc. (1
Dept. 1993) 192 A.D.2d 402, 596 N.Y.S.2d 361. Judgment
181(33)
Bare fact that trucks manufactured by defendant were sold in New York through franchise dealers was insufficient to raise an inference of agency, thereby establishing that defendant was doing business in New York for
purpose of establishing jurisdiction under long-arm statute, where no evidence was proffered to show that franchise dealers were not separate corporate entities; in absence of common ownership, a valid inference of agency
could not be sustained. Krajewski v. Osterlund, Inc. (2 Dept. 1985) 111 A.D.2d 905, 490 N.Y.S.2d 609. Courts
13.6(2)
In action by New York retailer against British manufacturer for alleged breach of contract, contention that manufacturer did business in New York through agency of distributor so as to give court jurisdiction under this section relating to personal jurisdiction by acts of nondomiciliaries could not be sustained where distributor bought
goods from manufacturer which he then sold to others, including retailer, at an advanced price, which constituted the distributor an independent contractor of manufacturer, and mere fact that distributor in New York performed ministerial act of filing schedules with state of prices for British manufacturer did not constitute distributor an agent of manufacturer under this section relating to personal jurisdiction by acts of nondomiciliaries, ex-
Page 178
cept for the purpose of so doing. Standard Wine & Liquor Co. v. Bombay Spirits Co. (1 Dept. 1966) 25 A.D.2d
236, 268 N.Y.S.2d 602, motion denied 19 N.Y.2d 602, 278 N.Y.S.2d 391, 224 N.E.2d 886, affirmed 20 N.Y.2d
13.6(2)
13, 281 N.Y.S.2d 299, 228 N.E.2d 367. Courts
Nondomiciliary who engages in some purposeful activity in state is subject to in personam jurisdiction of New
York court, but where Missouri manufacturer allowed New York wholesaler to purchase substantial quantities of
its products for distribution throughout New York, was insufficient alone to support assertion of in personam
13.5(7)
jurisdiction over manufacturer. Wilsey v. Gavett, 1965, 49 Misc.2d 861, 268 N.Y.S.2d 688. Courts
There was sufficient evidence of common ownership, financial dependency, and common control of marketing
and operational policies of a manufacturer and distributor of luggage-related goods that the district court's undisputed personal jurisdiction, under New York law, over the distributor extended to the manufacturer. D. Klein &
Son, Inc. v. Good Decision, Inc., C.A.2 (N.Y.)2005, 147 Fed.Appx. 195, 2005 WL 361674, Unreported. Federal
82
Courts
117. Executors and administrators, acts by agent or representative
Government suing nondomiciliary executor for taxes allegedly owed by deceased and asserting jurisdiction under this section was required, on motion of executor to set aside service, to establish only prima facie tax related
transactions of deceased in New York in order to invoke jurisdiction of federal court under this section. U.S. v.
Montreal Trust Co., C.A.2 (N.Y.)1966, 358 F.2d 239, certiorari denied 86 S.Ct. 1366, 384 U.S. 919, 16 L.Ed.2d
440, rehearing denied 86 S.Ct. 1858, 384 U.S. 982, 16 L.Ed.2d 693. Internal Revenue
4874
New York district court lacked personal jurisdiction over Texas administrator of estate under New York longarm statute; administrator swore that he did not own, use, or possess real or personal property located in state,
that he had not ever contracted to supply goods or services in state, and that he had not done or transacted business in state related to alleged cause of action and none of acts alleged in complaint occurred in state. Ganoe v.
Lummis, 1987, 662 F.Supp. 718, affirmed 841 F.2d 1116, certiorari denied 108 S.Ct. 2848, 487 U.S. 1206, 101
L.Ed.2d 886, rehearing denied 109 S.Ct. 13, 487 U.S. 1250, 101 L.Ed.2d 964. Federal Courts
76.20
Settlor seeking to revoke trust made prima facie showing that foreign cotrustees were subject to personal jurisdiction of district court sitting in New York; it was alleged that lawyers who drew up trust agreement in New
York acted as agents of cotrustees, in that agreement allegedly favored cotrustees at settlor's expense. Harrison
v. Grobe, 1991, 135 F.R.D. 72, vacated.
The cause of action for accrued alimony and to enforce previously obtained judgments for arrears survived death
of husband and, inasmuch as the Supreme Court had jurisdiction over husband, it had personal jurisdiction over
his executors. Gordon v. Gordon (2 Dept. 1985) 110 A.D.2d 623, 487 N.Y.S.2d 574. Divorce
83
Surrogate's court would not enjoin executrix of mother's will, being probated in Israel, from proceeding with
probate proceedings; required request for affirmative relief was not made, Israel had most contacts with matter,
and comity favored denial of injunction. In re Cohen, 2004, 5 Misc.3d 869, 786 N.Y.S.2d 716. Courts
516
Page 179
California domiciliary in his capacity as executor in probate proceeding in New York was transacting business
within state and was subject to jurisdiction of New York court under this section. Mayer v. Goldhaber, 1969, 63
13.5(2)
Where during course of her trusteeship, the testatrix, a nondomiciliary, acting as a partner in New York partnership, transacted business within New York, and cause of action which sought an accounting of such proceedings
as trustee stemmed from activities while transacting such business, the testatrix, or her executrix, would be subject to New York jurisdiction. Johnson v. Jay, 1965, 45 Misc.2d 101, 255 N.Y.S.2d 705. Executors And Admin525; Trusts
254
istrators
Where limited partnership was executed in New York and provided that New York law should govern its construction, and business thereunder was conducted primarily in New York, and, after death of one general partner,
his executors transacted further business in New York, executor, having been personally served in New York, in
action by limited partner for return of capital contribution and for damages resulting from alleged conversion,
was subject to jurisdiction of New York courts, not only for deceased's transaction of business within state prior
to death, but also for his own transaction of business within state as executor both before and after expiration of
partnership agreement. Nexsen v. Ira Haupt & Co., 1964, 44 Misc.2d 629, 254 N.Y.S.2d 637. Courts
13.5(2); Courts
13.5(4)
118. Freight forwarders, acts by agent or representative
In suit by ocean carrier to recover freight for transatlantic carriage of certain trucks against New Jersey corporation as shipper and Iranian corporation as consignee, New Jersey corporation which engaged New York corporation to act as freight forwarder in which capacity New York corporation prepared bill of lading for shipment and
presented bill to the carrier for execution, after execution of bill of lading, New York corporation negotiated it
for New Jersey corporation's account against letter of credit at the New York bank, thereafter New York corporation prepared export declaration and arranged for delivery of the trucks, New Jersey corporation transacted
business through an agent within the state and was subject to in personam jurisdiction under this section. MedSpan Shipping Services, Ltd. v. Jerry Jones Mack, Inc., 1978, 442 F.Supp. 904. Admiralty
27
Where nondomiciliary truck distributor acting for purchaser of trucks and seeking to the shipment of trucks from
United States sent cable to New York freight forwarder containing necessary information for shipment, required
rates and, in effect, asking that forwarder make a booking for account of distributor, for jurisdictional purposes
of this section, freight forwarder in allegedly making oral booking with plaintiff shipowner was acting as distributor's agent giving court jurisdiction over distributor in suit for breach of contract. Orient Mid-East Lines, Inc.
S.S. Orient Liner v. Albert E. Bowen, Inc., 1969, 297 F.Supp. 1149. Federal Courts
76.10
119. Government officers or employees, acts by agent or representative
Secretary of Defense was amenable to process under New York's long-arm statute in prisoner's habeas proceeding challenging his detention in South Carolina as an “enemy combatant;” all of the activities salient to prisoner's claim were completed or initiated by Secretary or his agents in the Southern District of New York where
Secretary sent Defense Department (DOD) personnel to remove prisoner from New York facility, detain him,
Page 180
and transfer him to South Carolina. Padilla v. Rumsfeld, C.A.2 (N.Y.)2003, 352 F.3d 695, certiorari granted 124
S.Ct. 1353, 540 U.S. 1173, 157 L.Ed.2d 1226, reversed and remanded 124 S.Ct. 2711, 542 U.S. 426, 159
632.1
L.Ed.2d 513. Habeas Corpus
United States District Court for the Southern District of New York had no personal jurisdiction over federal government officers in Missouri in suit for false arrest, etc., where the latter had done nothing themselves to bring
themselves within this section and where New York officers in making arrest in New York were not acting as
agents of such Missouri officers. Marsh v. Kitchen, C.A.2 (N.Y.)1973, 480 F.2d 1270. Federal Courts
76.20
Immigration and Naturalization Service (INS) District Director in Louisiana, as petitioner's custodian in Louisiana, was not subject to district court's personal jurisdiction in habeas proceeding by virtue of New York's long639
arm jurisdiction statute. Carvajales-Cepeda v. Meissner, 1997, 966 F.Supp. 207. Habeas Corpus
District Court in New York lacked personal jurisdiction under New York long-arm statute over FBI director
with respect to suit arising from entry into and search of apartment building in New York, where director was
not present at the scene, submitted affidavit disassociating himself from the decision-making process in the case,
and it was not shown that individual defendants who allegedly did commit tortious acts within the state were
acting as the director's “personal agents.” Adelona v. Webster, 1987, 654 F.Supp. 968. Federal Courts
76.35
Personal jurisdiction was not available over former United States Attorney General under New York long-arm
statute based simply on fact that United States Attorney and Assistant United States Attorney were acting as
agents for the United States government in connection with alleged wrong complained of, without any showing
that they were Attorney General's personal agents; repudiating Clark v. United States, 481 F.Supp. 1086,
S.D.N.Y. Barbera v. Smith, 1987, 654 F.Supp. 386. Federal Courts
76.20
Responsibility of Director of Federal Bureau of Prisons for management of federal prison system, including prison in New York was insufficient to satisfy New York's long-arm statute and provide personal jurisdiction over
director, absent allegations or evidence of any direct actions taken by director within the state. Lee v. Carlson,
1986, 645 F.Supp. 1430, affirmed 812 F.2d 712. Federal Courts
76.35
In suit brought by multistate corporation challenging the constitutionality of the multistate tax compact, acts of
commission tax auditors in New York had to be attributed to the individual commissioners, and such acts therefore served as the basis of jurisdiction over the commissioners as well as over the commission itself; accordingly, service on the individual commissioners in their home states was proper under the “transacting business”
provision of this section. U. S. Steel Corp. v. Multistate Tax Commission, 1973, 367 F.Supp. 107. Federal
Courts
76.20
Court of Appeals would decline to answer certified questions concerning whether Immigration and Naturalization Service (INS) District Director was subject to long-arm jurisdiction in New York; alternative possibilities
Page 181
for obtaining jurisdiction made it unlikely that questions were dispositive, and issue was unlikely to arise in state
court. Yesil v. Reno, 1998, 92 N.Y.2d 455, 682 N.Y.S.2d 663, 705 N.E.2d 655, opinion after certified question
392
declined 175 F.3d 287. Federal Courts
120. Independent contractors, acts by agent or representative
National marketing organization, which was a New York corporation, which had, inter alia, been paid by automobile club, a nonprofit California corporation, by commission for solicitation of advertising for club's
magazine, which had employed and managed its own salesmen and maintained its own offices in California, was
an independent contractor, and thus was not an agent of club for purposes of obtaining personal jurisdiction over
club in New York in action brought by marketing organization for compensation allegedly due on advertising
solicited for magazine published by club. Sales Arm, Inc. v. Automobile Club of Southern California, 1975, 402
82
“Quality control employee” of foreign corporation, who worked out of his home in New Jersey and did not take
orders or accept payment, could not be considered a New York agent or employee for purposes of jurisdiction.
Al Negelberg & Co. v. Trans Fresh Corp. (1 Dept. 1972) 39 A.D.2d 538, 331 N.Y.S.2d 45. Courts
13.6(2)
121. Licensees and licensors, acts by agent or representative
Jurisdiction could be asserted over licensees under New York's long-arm statute, even though licensees did not
negotiate or execute licensing agreements with licensor in New York and rarely, if ever, travelled to New York
to meet with licensor regarding performance of contracts, when licensees had professional organization in New
York to act as their agent in representing their collective interests with licensor, which wholly undercut lack of
frequent trips by licensees to New York. Agency Rent A Car System, Inc. v. Grand Rent A Car Corp., C.A.2
(N.Y.)1996, 98 F.3d 25, 40 U.S.P.Q.2d 1455. Federal Courts
76.5
Evidence showing individual defendant's almost complete identification with corporation which had been granted exclusive worldwide license and authority to use individual defendant's name in a nationwide campaign to
solicit sale of franchises, his right to control the promotion of his name, and the expected economic gain he was
to receive adequately established that corporation was individual defendant's agent for purpose of exploiting
commercial value of his name within purview of this section providing a basis for jurisdiction over any person
who in person or through an agent commits a tortious act without state causing injury to personal property within state. Doumaux v. Gurney, 1973, 363 F.Supp. 1209. Federal Courts
76.10
Nationally famous dancer, a nondomiciliary, who for a fee licensed New York corporation to use his name for
dancing studio and advertising which was so handled as to give impression that the studio was the alter ego of
dancer, was subject to jurisdiction of New York court in suit by customer of New York dancing studio under this
section relating to commission of tortious act in state through agent. Lodge v. Western New York Dance Studios, Inc., 1967, 53 Misc.2d 803, 279 N.Y.S.2d 756. Courts
13.6(8)
122. Parent and subsidiary corporations, acts by agent or representative--In general
Page 182
Under New York law, to establish that a subsidiary is an agent of a parent for purposes of establishing personal
jurisdiction over the parent, the plaintiff must show that the subsidiary does all the business which the parent
corporation could do were it in a jurisdiction by its own officials; this test requires a court to examine whether
the subsidiaries' presence in the jurisdiction's market is in lieu of the parent and, also, whether the parent would
have to enter the market directly if the subsidiaries were absent because the market is too important to the par13.6(9)
ent's welfare. Uebler v. Boss Media AB, 2006, 432 F.Supp.2d 301. Courts
Under New York law, a subsidiary must be functioning as either an agent or a mere department of a foreign parent company in order to subject the parent company to personal jurisdiction based on the in-state activities of the
13.6(9)
subsidiary. Uebler v. Boss Media AB, 2006, 432 F.Supp.2d 301. Courts
Under New York law, to establish that a local subsidiary is an agent of a foreign parent, such that the parent may
be sued in New York based on the contacts of its subsidiary, the subsidiary must be shown to do all the business
which the parent corporation could do were it in New York by its own officials. Caremark Therapeutic Services
v. Leavitt, 2005, 405 F.Supp.2d 454. Federal Courts
82
Under New York law, a corporation may be sued in New York based on the contacts of its parent or subsidiary
when the relationship between the parent and subsidiary validly suggests the existence of an agency relationship
or the parent controls the subsidiary so completely that the subsidiary may be said to be simply a department of
the parent. Caremark Therapeutic Services v. Leavitt, 2005, 405 F.Supp.2d 454. Federal Courts
82
Under New York long-arm statute, to establish jurisdiction over parent company for acts of its subsidiary, there
must be common ownership between corporations, and other factors include: (1) financial dependency of subsidiary on parent; (2) degree to which parent interferes in subsidiary's affairs; (3) failure to observe corporate
formalities; and (4) degree of control over marketing and operational policies of subsidiary exercised by parent.
Uebler v. Boss Media, AB, 2005, 363 F.Supp.2d 499. Courts
13.6(9)
Under New York's long-arm statute, mere ownership of a wholly-owned New York subsidiary by a foreign parent company is insufficient to confer personal jurisdiction over the parent. Snyder v. Ply Gem Industries, Inc.,
2001, 200 F.Supp.2d 246. Courts
13.6(9)
Notwithstanding that systematic activities of subsidiary or agent in state may subject foreign principal to personal jurisdiction, additional factors beyond parent-subsidiary relationship itself are needed to establish personal
jurisdiction over foreign parent corporation. Andrulonis v. U. S., 1981, 526 F.Supp. 183. Federal Courts
82
Mere ownership by a parent company of a subsidiary that is subject to personal jurisdiction is insufficient to establish jurisdiction over the parent. Moreau v. RPM, Inc. (2 Dept. 2005) 20 A.D.3d 456, 799 N.Y.S.2d 113.
Courts
13.6(9)
Page 183
Existence of an agency upon which a finding of long-arm jurisdiction may be predicated may not be inferred
from the mere existence of a parent-subsidiary relationship. Insurance Co. of North America v. EMCOR Group,
13.6(9)
Inc. (1 Dept. 2004) 9 A.D.3d 319, 781 N.Y.S.2d 4. Courts
Plaintiff's showing of defendants' parent-subsidiary relationship, without more, did not provide sufficient connection between parent and any New York activity to warrant assertion of personal jurisdiction over parent.
13.6(9)
Sone v. Tsumura (1 Dept. 1995) 222 A.D.2d 231, 634 N.Y.S.2d 689. Courts
Systematic activities of a subsidiary or agent in New York may subject a foreign principal to personal jurisdiction, and mere formal separation between parent and subsidiary corporation is not enough to avoid this result,
but the activities must amount to more than a mere parent-subsidiary relationship; subsidiary's acts confer jurisdiction over parent either where the subsidiary performs all the business which the parent could do were it in
New York by its own officials or where the parent's control over the subsidiary's activities are so complete that
the subsidiary is, in fact, merely a department of the parent. Re v. Breezy Point Lumber Co., 1983, 118 Misc.2d
206, 460 N.Y.S.2d 264. See, also, Mayer v. Josiah Wedgwood & Sons, Ltd., D.C.N.Y.1985, 601 F.Supp. 1523;
13.6(9)
Sunrise Toyota, Ltd. v. Toyota Motor Co., D.C.N.Y.1972, 55 F.R.D. 519. Courts
Under New York law, subsidiary shares personal jurisdictional status of its corporate parent only if there is common ownership and companies' have failed to maintain their separate corporate identities. Societe Generale v.
Florida Health Sciences Center, Inc., 2003, 2003 WL 22852656, Unreported. Courts
13.6(9)
123. ---- Particular parent and subsidiary corporations, acts by agent or representative
Supplier failed to make a prima facie showing that Michigan holding company, which indirectly owned Mexican
purchaser through its ownership of purchaser's corporate parent, was alter ego of purchaser for purposes of obtaining personal jurisdiction over holding company under New York long-arm statute in breach of contract action; facts supported a finding that holding company operated independently of purchaser and its corporate parent, and had no significant control over purchaser. Taylor Devices, Inc. v. Walbridge Aldinger Co., 2008, 538
82; Federal Courts
86
Activities of foreign online casino systems supplier's subsidiary in jurisdiction were sufficient to establish personal jurisdiction over supplier under “transacting business” prong of New York long arm statute; subsidiary
collected money from online gambling activities and distributed it among supplier and other subsidiaries, which
was evidence that it functioned as an integral part of supplier's operation, and annual report of supplier described
subsidiary as “carrying out” activities of certain divisions of supplier, such that absent the existence of the subsidiary, the supplier would have performed those activities itself. Uebler v. Boss Media AB, 2006, 432 F.Supp.2d
301. Federal Courts
82; Federal Courts
86
Court did not have personal jurisdiction over Oregon farming operations in agricultural cooperative's declaratory
judgment action regarding marketing agreement, since under transaction of business test, only factual basis for
claim that personal jurisdiction could be exercised was contention that farming operations transacted business in
New York through cooperative and its subsidiary. Pro-Fac Co-op., Inc. v. Alpha Nursery, Inc., 2002, 205
Page 184
76.15
Parent corporation's acquisition of corporation that employed Florida resident did not create contacts with New
York required by New York's long-arm statute, as required for district court to assert personal jurisdiction over
foreign corporations, although change of control provision of contract governed by New York law triggered disputed performance award provision, where dispute itself did not arise out of merger, but rather from interpretation of employment contract to determine appropriate computation of performance awards. Snyder v. Ply Gem
82
Industries, Inc., 2001, 200 F.Supp.2d 246. Federal Courts
Exercise of personal jurisdiction over foreign holding company, which was parent of domestic cigarette manufacturer that was its co-defendant in fraud case, was not authorized under New York long-arm statute based on
allegation that holding company was member of tobacco strategy review team (TSRT) that caused economic injuries in New York, since it was unclear what holding company's role in TSRT was and since holding company
did not sell, manufacture, or market cigarettes. Laborers Local 17 Health and Ben. Fund v. Philip Morris, Inc.,
86
Exercise of personal jurisdiction over foreign holding company, which was parent of co-defendant cigarette
manufacturer, was not warranted under New York long-arm statute based on allegation that holding company
conducted research for manufacturer on topics of smoking, disease, and addiction. Laborers Local 17 Health and
Ben. Fund v. Philip Morris, Inc., 1998, 26 F.Supp.2d 593. Federal Courts
86
District court sitting in New York lacked personal jurisdiction over Swiss parent of New Jersey subsidiary which
allegedly committed antitrust violation injuring New York plaintiff; though there was evidence that parent conducted business worldwide, there was no showing that parent was subsidiary's alter-ego, that it had purposeful
contacts within New York, or that it was a party to subsidiary's dealings with plaintiff. Perfumer's Workshop,
Ltd. v. Roure Bertrand du Pont, Inc., 1990, 737 F.Supp. 785. Antitrust And Trade Regulation
969
Except on theory of identity with first corporate defendant which allegedly made fraudulent transfer of its assets
to second corporate defendant, plaintiff did not sustain burden of proving personal jurisdiction over second corporate defendant absent showing that second corporate defendant had done anything construable as “doing business” or “transacting any business” in New York, within meaning of New York jurisdictional statutes [
N.Y.McKinney's CPLR 301, 302], and in view of inadequate showing as to whether jurisdiction could be asserted under New York long-arm statute [N.Y.McKinney's CPLR 302]. Totalplan Corp. of America v. Lure Camera
Ltd., 1985, 613 F.Supp. 451. Federal Courts
96
Subsidiary television station was “mere department” of parent nationwide communications corporation for jurisdictional purposes and thus parent was “doing business” in New York and subject to personal jurisdiction in the
United States District Court for the Southern District of New York in view of import of correspondence from
parent's vice president to television station's former national advertising sales representative to effect that representative was being terminated and replaced as parent's sales representative for its station and failure of representation and indemnification agreements between parent and successor sales representative to acknowledge separate existence of subsidiary television station apart from mere formality of parent-subsidiary relationship. Katz
Page 185
Agency, Inc. v. Evening News Ass'n, 1981, 514 F.Supp. 423, affirmed 705 F.2d 20. Federal Courts
82
District Court in New York had jurisdiction over Japanese parent corporation based on parent's penetration of
American market where purpose of subsidiaries was to market single product manufactured by parent, parent
continued to engage in market penetration and expansion that were its corporate raison d'etre, American market
was too important to parent's welfare to use independent and uncontrolled sales agents and distributors, entire
American sales of parent's production moved through subsidiaries, export market was crucial to parent, subsidiaries were means by which parent had established and sought to maintain its base, subsidiaries did for parent
everything that parent would have done were it in New York directly and cause of action alleged was integrally
related doing of business by parent within New York. Bulova Watch Co., Inc. v. K. Hattori & Co., Ltd., 1981,
82
Although Wisconsin corporation was not licensed to do business in New York it was subject to in personam jurisdiction by New York courts based on “presence” of its parent corporation, which was licensed to do business
in that state, where subsidiary was simply the production arm for certain specialized products sold by the parent,
with exception of one officer, the same officials served both corporations, parent provided personnel, management, etc., and services to subsidiary and financial transactions were carried on through master draft and depository system and both corporations functioned as an integral part of a united endeavor. DCA Food Industries Inc.
v. Hawthorn Mellody, Inc., 1979, 470 F.Supp. 574, 202 U.S.P.Q. 739. Federal Courts
82
In action against Florida corporation and New York corporation challenging Florida corporation's refusal to approve plaintiff's purchase of condominium apartment in Florida, personal jurisdiction could not be asserted over
Florida corporation under this section where Florida corporation existed solely to manage Florida condominiums, even though New York corporation had role in creation of Florida corporation and New York corporation
solicited purchasers in New York for Florida condominium apartments. Seegul v. A.C.N.Y. Agency Co., Inc.,
81
New Jersey telephone company was not subject to service under this section although its parent corporation was
in New York. Rivera v. New Jersey Bell Tel. Co., 1972, 340 F.Supp. 660. Corporations And Business Organizations
3266(7)
Representative of insurer syndicate that subscribed to fidelity bond that was part of comprehensive insurance
policy was subject to personal jurisdiction in New York, even though policy was purchased by Canadian corporation, where policy defined “Assured” to include corporation's subsidiaries, and subsidiary that sustained insured loss was New York resident. Hudson Ins. Co. v. Oppenheim (1 Dept. 2006) 35 A.D.3d 168, 827 N.Y.S.2d
16. Courts
13.5(14); Courts
13.6(9)
Parent corporation was not subject to personal jurisdiction under long-arm statute in personal injury action based
on allegedly defective product manufactured by subsidiary; parent did not finance subsidiary's day-to-day operations or control subsidiary's marketing or operational activities, did not manufacture any products, did not distribute any products in state, and had no contacts with the state. Moreau v. RPM, Inc. (2 Dept. 2005) 20 A.D.3d
456, 799 N.Y.S.2d 113. Courts
13.6(9)
Page 186
Subsidiary was not parent corporation's voluntary agent for service of process given that subsidiary was not doing all the business that parent would have performed in New York and, thus, could not be deemed to be mere
department or mere instrumentality of parent. Pappas & Marshall v. A.J. Ross Logistics, Inc. (2 Dept. 1995) 222
2544(7)
A.D.2d 424, 634 N.Y.S.2d 717. Corporations And Business Organizations
Court had personal jurisdiction over German subsidiary of American parent corporation; subsidiary was wholly
owned by parent, which exerted considerable control over subsidiary's executive personnel and its marketing
and operational policies, subsidiary was dependent on parent for infusions of working capital, and subsidiary's
acquisition of certain assets had been premised upon parent's commitment to expend substantial sums for working capital and for research and product development. Schubert v. Marwell (2 Dept. 1995) 218 A.D.2d 693, 630
13.6(9)
Personal jurisdiction was lacking to foreign corporations though one of them had a United States subsidiary,
where only plaintiff and the United States subsidiary entered into the relevant contract, foreign corporations did
not have any traditional indicia of corporate presence in New York, there was insufficient proof that subsidiary
was either agent or department of the foreign corporations, there was no proof that subsidiary performed business functions that foreign corporations could perform if they were present in New York, any tortious acts alleged by plaintiff occurred in Europe and caused injury in Europe, and there had been no interference by parent
corporation in selection of subsidiary's executive personnel and no failure to observe corporate formalities. Huxley Barter Corp. v. Considar, Inc. (1 Dept. 1995) 216 A.D.2d 24, 627 N.Y.S.2d 639. Courts
13.6(9)
Wholly owned subsidiary was not agent of nonresident parent for purposes of subjecting parent to long-arm jurisdiction in products liability and negligence action, where although there was complete stock control and overlapping directors and officers, subsidiary was not financially dependent on parent, parent charged market rates
for services it provided to subsidiary, parent observed corporate formalities and did not interfere in the recruitment and assignment of subsidiary's employees, parent did not control subsidiary's policies and day-to-day operations, and business of parent was different from business of subsidiary. Porter v. LSB Industries, Inc. (4 Dept.
1993) 192 A.D.2d 205, 600 N.Y.S.2d 867. Courts
13.6(9)
Where three local squadrons of the United States Power Squadrons had passed resolutions in favor of permitting
women membership, but could not do so because all regular members of local squadrons must also be members
of USPS, which prohibits women members, USPS, by perpetuating discriminatory practices in New York State,
was subject to the in personam jurisdiction of the State Division of Human Rights, notwithstanding USPS's
claim that it was not subject to long-arm jurisdiction because it is a foreign corporation separate and independent
of the local squadrons in New York. U. S. Power Squadrons v. State Human Rights Appeal Bd. (2 Dept. 1981)
84 A.D.2d 318, 445 N.Y.S.2d 565, appeal granted 57 N.Y.2d 607, 455 N.Y.S.2d 1026, 441 N.E.2d 1119, affirmed 59 N.Y.2d 401, 465 N.Y.S.2d 871, 452 N.E.2d 1199, reargument dismissed 60 N.Y.2d 682, 468
N.Y.S.2d 107, 455 N.E.2d 666, reargument dismissed 60 N.Y.2d 702, 468 N.Y.S.2d 1027, 455 N.E.2d 1267.
Civil Rights
1707
Wholly owned subsidiary of corporation that did business in New York was alter ego of the corporation, subjecting it to personal jurisdiction in New York, where subsidiary's primary asset was a casino website that had been
Page 187
purchased by the corporation pursuant to a decision by the corporation's chief executive officer, use of the website was handled from the corporation's New York offices, all of subsidiary's top employee's were hired by and
reported to corporation, and no formalities were observed to maintain a financial distinction between the entities. People ex rel. Vacco v. World Interactive Gaming Corp., 1999, 185 Misc.2d 852, 714 N.Y.S.2d 844. Courts
13.6(9)
In action brought by director and shareholder of a New York corporation involved in a joint venture with a New
York subsidiary of a multinational corporation, whose principal place of business was in Korea, against the various corporations and directors involved in the joint venture, in which it was alleged that defendants connived to
wreck the joint venture and to convert its assets to their individual benefit and profit, the New York Supreme
Court had personal jurisdiction over the joint venture corporation's nonresident directors, who were also employees of the subsidiary, even though the directors contended that their alleged tortious misconduct occurred out of
13.6(6); Courts
state. Kossoff v. Samsung Co. Ltd., 1984, 123 Misc.2d 177, 474 N.Y.S.2d 180. Courts
13.6(9)
Subsidiary corporation located in New Jersey, which purchased from Ohio corporation a gas regulator and valve
which later exploded after being sold to parent corporation which had filed a certificate of doing business in
New York, and which later resold the gauge and valve, “transacted business” in New York within meaning of
this section from which two causes of action arose, through the activities of its sole customer, its parent corporation, which concededly did business in New York. Gonzales v. Ametek, Inc., 1966, 50 Misc.2d 62, 269
N.Y.S.2d 616. Corporations And Business Organizations
3207
Newspaper publisher's ten percent ownership interest in co-defendant did not make the latter a mere department
of the former for jurisdictional purposes, and, thus, the district court properly analyzed each entity's contacts
with state separately. Realuyo v. Abrille, C.A.2 (N.Y.)2004, 93 Fed.Appx. 297, 2004 WL 605275, Unreported.
Federal Courts
79
Investor failed to make a prima facie showing that federal court had specific personal jurisdiction over Swedish
investment company under transacting business provision of New York long arm statute, on allegations that
company had subsidiary in New York, since subsidiary was inactive and was not involved in transactions underlying investor's claims. Landau v. New Horizon Partners, Inc., 2003, 2003 WL 22097989, Unreported. Federal
Courts
82; Federal Courts
86; Federal Courts
96
124. Partners, acts by agent or representative--In general
Under New York law, joint owners and directors of partnership and limited liability company were chargeable
with those business entities' acts, for purpose of determining court's personal jurisdiction over them. 777388
Ontario Ltd. v. Lencore Acoustics Corp., 2001, 142 F.Supp.2d 309. Federal Courts
76.20
General partner was acting as partnership's agent, whose contacts with New York could be imputed to partnership for purposes of permitting court to exercise long-arm jurisdiction over partnership in mortgage foreclosure
action, when general partner used New York real estate which he owned to secure mortgage financing on part-
Page 188
nership's behalf; partnership had to be deemed to have knowledge of and to have consented to partner's use of
his New York real estate as collateral, given evidence that, without such collateral, partnership could not have
85
obtained subject financing. 5-Star Management, Inc. v. Rogers, 1996, 940 F.Supp. 512. Federal Courts
District of Columbia law firms were subject to long-arm jurisdiction of New York court in connection with malpractice claims asserted by former clients against partner of law firms based on partner's drafting of agreements
to form New York partnerships for clients to own and operate New York properties, which were governed by
New York law as there was sufficient showing that partner acted for benefit of and with knowledge and consent
of law firms with which he was associated at time he drafted agreements for clients; all correspondence between
partner and clients was on law firms' stationary, both firms billed clients for partner's services, and another partner of one law firm worked on one partnership agreement. Schur v. Porter, 1989, 712 F.Supp. 1140. Federal
85
Courts
In action seeking to have transfers of certain stock and leaseholds declared null and void on grounds transactions
constituted self-dealing in violation of fiduciary obligations, federal court in New York could acquire personal
jurisdiction over partner pursuant to this section notwithstanding claim of partner that he conducted business
activities in New York merely as a general partner and not in his individual capacity. Krause v. Hauser, 1967,
85
Former partner's alleged failure to divulge “secret intentions” during execution of partnership contract did not
occur in New York and was not tortious act from which cause of action arose, and, thus, New York did not have
personal jurisdiction. Storch v. Vigneau (1 Dept. 1990) 162 A.D.2d 241, 556 N.Y.S.2d 342. Courts
13.5(4)
Non-partner employee who received share of profits from partnership lacked sufficient contacts with forum state
to warrant court's exercise of personal jurisdiction over him, and thus would be properly dismissed from diversity action brought by corporate partner against former partners, stemming from alleged failure to wind up
and liquidate partnership following dissolution; partnership agreement clearly excluded employee, and employee
was British subject who had visited forum state once in past twenty years. Afloat in France, Inc. v. Bancroft
Cruises Ltd., 2003, 2003 WL 22400213, Unreported. Federal Courts
86
up and liquidate partnership following dissolution, established that its claims arose out of business transacted in
forum state, as required to warrant court's exercise of personal jurisdiction over action; partner's accounting
claim examined entire period of partnership while it was operating in forum state, and partner's claims for
breach of fiduciary duty, fraud and negligent misrepresentation all arose out of same underlying facts as accounting claim. Afloat in France, Inc. v. Bancroft Cruises Ltd., 2003, 2003 WL 22400213, Unreported. Federal
Courts
76.15
up and liquidate partnership following dissolution, established that former partners transacted business in forum
state, as required to warrant court's exercise of personal jurisdiction over action; partnership had address and
telephone numbers in forum state, and former partner did substantial work on behalf of partnership from her
Page 189
home office in forum state. Afloat in France, Inc. v. Bancroft Cruises Ltd., 2003, 2003 WL 22400213, Unrepor76.15
ted. Federal Courts
125. ---- Limited partnerships, acts by agent or representative
Foreign corporation's status as a limited partner of partnership was insufficient to create long-arm jurisdiction
under New York law, in action by another limited partner for general partner's allegedly unauthorized transfer of
77.5
interest to corporation. JN Realty LLC v. Estate of Marvin, 2003, 268 F.Supp.2d 231. Federal Courts
Limited partner established that foreign corporation transacted business in New York, as required for court to
exercise jurisdiction over corporation under New York long-arm statute, in action by limited partner for allegedly unlawful transfer of general partner's transfer of interest in a partnership; corporation's president had numerous telephone contacts, correspondence, and in-person meetings with representatives of limited partner, and
agreement which made corporation a limited partner contained a choice of law provision providing for New
York law to govern disputes between shareholders. JN Realty LLC v. Estate of Marvin, 2003, 268 F.Supp.2d
79
231. Federal Courts
Limited partner established that its claims against foreign corporation were sufficiently related to corporation's
business in New York to permit court to exercise jurisdiction over corporation under New York long-arm statute; complaint arose out of general partner's transfer of interest in partnership to corporation and alleged mismanagement of partnership's assets by failing to provide necessary repairs to shopping center which partnership
was formed to manage, and much of corporation's business activities in New York related to affairs of partnership. JN Realty LLC v. Estate of Marvin, 2003, 268 F.Supp.2d 231. Federal Courts
79
In limited partner's diversity action for accounting, New York law did not permit exercise of personal jurisdiction over nonresident partnership and nonresident partners, even though nonparty purchaser of partnership property conducted business in New York, and some of limited partners of partnership were citizens of New York.
Pappas v. Arfaras, 1989, 712 F.Supp. 307. Federal Courts
85
Where managing general partner of maker of promissory note never personally appeared in New York, where
limited partners' attorney when he appeared in New York was not acting as partner's agent, where partner subsequently became general partner of limited partnership that owed obligation to New York-based trust, and
where, after he decided to take part in transaction, telephone calls were made from Florida to New York by
someone else acting on behalf of principals of transaction, partner's contacts were insufficient to constitute purposeful activity in New York required by due process clause, U.S.C.A.Const. Amend. 14 and this section, and
thus personal jurisdiction was lacking over partner in trust's action on note. Plaza Realty Investors v. Bailey,
85
Action of Oklahoma resident in investing, as a limited partner, in New York limited partnerships producing
movies in New York did not, of itself, constitute transaction of business in New York through an agent for purpose of subjecting Oklahoma resident to in personam jurisdiction in corporate general partner's suit to recover
for defamation and prima facie tort; in view of this section and provision of partnership agreement that limited
Page 190
partners did not have control over business activities it was necessary to show that defendant had exercised dom85
ination and control over activities of plaintiffs. Lynn v. Cohen, 1973, 359 F.Supp. 565. Federal Courts
In suit brought against general partner of Delaware limited partnership and limited partner, jurisdiction over limited partner was not conferred by its involvement as a limited partner in partnerships that did business in New
York, its consent to New York jurisdiction in other limited partnership agreements, or its assertion of a counterclaim against plaintiff in an unrelated New York arbitration. Barrett v. Toroyan (1 Dept. 2006) 28 A.D.3d 331,
13.6(8)
126. Sales representative, acts by agent or representative
Activities of South African airline's New York sales agent in soliciting business, booking reservations, accepting
and transmitting cash payments for air transportation to the airline and distributing public information on behalf
of the airline were sufficient to constitute “doing business” and was reasonably related to passengers' cause of
action; thus, district court had personal jurisdiction, pursuant to New York long-arm statutes, over South African
airline in action brought by passengers to recover for personal injuries allegedly suffered on domestic flight
within South Africa. McLoughlin v. Commercial Airways (Pty) Ltd., 1985, 602 F.Supp. 29. Federal Courts
82
Nonresident corporate manufacturer maintained sufficient control over sales activities that activities of exclusive
sales representative in State of New York were properly attributable to manufacturer, and manufacturer was
properly held to have transacted business in New York “through an agent”; and where various causes of action
arose out of such transaction of business, manufacturer was subject to personal jurisdiction under New York
long-arm statute. PPS, Inc. v. Jewelry Sales Representatives, Inc., 1975, 392 F.Supp. 375, 185 U.S.P.Q. 374.
Federal Courts
82
Exclusive sales agent could not be deemed an “agent” of foreign corporation it was representing so as to bring
such corporation within the “transacting business” provision of New York's long-arm statute for purposes of suit
by agent against corporation for commissions, where it appeared that plaintiff was not an “agent” in the strictest
sense of the word, but rather was an independent contractor, and since, under New York law, plaintiff could not
by virtue of its own acts in New York bootstrap jurisdiction by imputing those acts to defendant. Loria & Weinhaus, Inc. v. H. R. Kaminsky & Sons, Inc., 1978, 80 F.R.D. 494, motion granted 495 F.Supp. 253. Federal
Courts
82
Nondomiciliary manufacturer “transacted business” in New York, and was thus subject to New York courts' personal jurisdiction; manufacturer hired plaintiffs as its exclusive sales representatives and requested them to solicit sales of equipment in North America by virtue of their agency agreement, plaintiffs did solicit business in
New York on behalf of manufacturer, and manufacturer exercised control over plaintiffs by retaining right to accept or reject any sales they made. Barbarotto Intern. Sales Corp. v. Tullar (2 Dept. 1992) 188 A.D.2d 503, 591
13.6(2)
For purposes of state long-arm statute, evidence in fraud action established existence of agency relationship
Page 191
between out-of-state mortgagee and in-state investment advisor that promoted state residents' purchases of outof-state condominiums; advisor received commissions from mortgagee and provided documents necessary to obtain mortgages, some of which were executed at advisor's in-state office. Holmes v. First Meridian Planning
13.5(12)
Corp. (3 Dept. 1989) 155 A.D.2d 813, 547 N.Y.S.2d 928. Courts
Where New York franchisee acted as agent for Ohio corporation in supplying leads, contacting prospective franchisees, investigating and advising Ohio corporation as to feasibility of certain sites, etc., but was not an officer
or director of the Ohio corporation and had no power to enter into any contracts, his activities were not of such
degree as to justify finding that Ohio corporation was “present” for purposes of jurisdiction; franchisee was only
a sales representative whose primary function was to solicit business. Sheldon Estates v. Perkins Pancake House
13.6(2)
127. Shareholders, acts by agent or representative
Alleged acts of Belgian financial service company's largest shareholder, in sending e-mails and faxes to New
York in response to resident private equity firm's solicitation of business in Belgium, were insufficient to establish specific personal jurisdiction over shareholder under New York's long-arm statute in firm's action against
shareholder alleging breach of contract relating to firm's proposed acquisition of controlling interest in Belgian
company; employee of firm had reached out to and contacted shareholder in Netherlands regarding acquisition
of controlling interest in company, partially-executed letter agreements had been forwarded for final execution
by employee from New York to shareholder's capital's investment director in Netherlands, and all comments and
negotiations had been prepared by shareholder in Netherlands and letter agreements had been executed on behalf
of shareholder in Netherlands. Aquiline Capital Partners LLC v. FinArch LLC, 2012, 861 F.Supp.2d 378, appeal
dismissed. Federal Courts
86
Non-resident corporation was not subject to personal jurisdiction in New York, even though corporation was
solely owned by one individual who was also one of two shareholders in New York company, where there was
no evidence as to whether corporation controlled day-to-day financial operations or marketing and operational
activities of New York company, or whether entities shared common officers and directors or freely exchanged
employees. Blount v. Bovis Lend Lease LMB, Inc. (1 Dept. 2008) 49 A.D.3d 293, 853 N.Y.S.2d 53. Courts
13.6(9)
One who purposely purchases shares which result in his being one of the ten largest shareholders of a domestic
corporation does so with knowledge of the consequences if the corporation defaults, both with respect to liability
to unpaid employees of corporation and with respect to liability for fellow responsible shareholders for pro rata
contribution, and he cannot escape his proportionate share of those responsibilities by leaving the state and
thereby rendering ineffective process which subjects him to local jurisdiction. Havlicek v. Bach, 1976, 86
Misc.2d 1084, 385 N.Y.S.2d 750. Corporations And Business Organizations
1670; Process
72
128. Spouses, acts by agent or representative
Exercise of personal jurisdiction over Arizona resident under New York's long-arm statute was proper in suit
brought by New York-based corporation to collect on note signed by resident and her husband individually and
Page 192
on behalf of their wholly owned corporation where, although resident did not communicate with New York corporation regarding transaction or travel to New York, her husband acted as her agent in making such contacts;
jurisdiction could be asserted on basis of his activities inside state of New York for her benefit with her knowledge and consent, particularly where wife ratified his acts by signing note. Citicorp Intern. Trading Co., Inc. v.
76.30
Western Oil & Refining Co., Inc., 1989, 708 F.Supp. 86. Federal Courts
Federal district court lacked personal jurisdiction under New York long-arm statute over wife of one defendant
to action for breach of contract, and thus motion to amend complaint to add wife as additional party was denied,
where wife was Florida resident who had never been in New York and who had nothing to do with her husband's
business dealings. Tri-State Judicial Services, Inc. v. Markowitz, 1985, 624 F.Supp. 925. Federal Civil Proced251; Federal Courts
76.30
ure
129. Predecessor and successor entities, acts by agent or representative
Under New York law, foreign limited liability company (LLC) was “successor in interest” to foreign corporation, as required to subject LLC to jurisdiction in New York based on the activities of its predecessor, where
LLC was designed to be successor, it was the only company that existed under predecessor's name, and it continued operations of the corporation once corporation had been dissolved. Phillips v. Reed Group, Ltd., 2013, 2013
WL 3340293. Federal Courts
79
Acts of predecessor corporations could be attributed to successor corporation for the purpose of establishing jurisdiction under New York's long-arm statute where successor acquired all of the assets of predecessors, was
managed by the same team that previously managed predecessor, and operates from the same address as predecessor. Hughes v. BCI Intern. Holdings, Inc., 2006, 452 F.Supp.2d 290. Federal Courts
79
New York federal district court could not assert long-arm jurisdiction over various state guaranty associations in
action brought by a New York insurance agent to recover amounts on claims assigned to agent by policyholders
of defunct Missouri insurer in which agent alleged a breach of associations' statutory duties to pay claims of resident policyholders; making or receipt of assignments from policyholders could not form basis for exercise of in
personam jurisdiction by New York. Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 1989, 715 F.Supp. 94,
affirmed 896 F.2d 674. Federal Courts
76.35
Defendant Delaware corporation's purchase of Nevada corporation which may have been amenable to suit in
New York was viewed as an acquisition rather than a merger for purpose of determining whether defendant was
amenable to suit in New York under this section as a “successor-in-interest” in view of fact, inter alia, that public records of incorporating states did not show that a statutory merger had been effected. Schenin v. Micro Copper Corp., 1967, 272 F.Supp. 523. Federal Courts
77.5
Defendant nonresident corporations to which had been assigned contract which dealt with leasing of vending
machines and which stated that it was made in and to be construed according to New York law were amenable to
service of process in federal diversity action on contract under this section. Fidelity & Cas. Co. of New York v.
Life Companies, Inc., 1964, 36 F.R.D. 267. Corporations And Business Organizations
3269(1)
Page 193
Mere ratification of contract executed by predecessor that possessed jurisdictional ties to New York is insufficient, without more, to subject successor to personal jurisdiction in New York. Societe Generale v. Florida
76.30
Health Sciences Center, Inc., 2003, 2003 WL 22852656, Unreported. Federal Courts
130. Pleadings
Parent company that provided security deposit for financing sought by its subsidiary pleaded prima facie case,
based on agency theory under New York's long-arm statute, that personal jurisdiction existed in its action for,
inter alia, fraud and conversion with respect to attorney previously believed to be counsel for intended lender by
asserting that lender's representative visited company's New York offices to induce it to provide deposit, that attorney knew or should have known that company believed that he would hold deposit in escrow in accordance
with agreed-upon terms, and that attorney and representative were aware that attorney did not intend to hold deposit, but instead intended to disburse funds for his and representative's personal use. Emerald Asset Advisors,
76.20
LLC v. Schaffer, 2012, 895 F.Supp.2d 418. Federal Courts
Allegations that uncle of judgment debtor “traveled to New York in early May 1997 and met with his nephew”
in connection with the bankruptcy-related transactions underlying civil Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy claims against uncle and debtor lacked factual specificity necessary to establish prima facie showing of personal jurisdiction over uncle under New York statute which authorized the exercise of personal jurisdiction over nondomiciliaries for tort and contract claims arising from transactions of business in state. First Capital Asset Management, Inc. v. Brickellbush, Inc., 2002, 218 F.Supp.2d 369, on reconsideration 219 F.Supp.2d 576, affirmed 385 F.3d 159. Federal Courts
94
Complaint in patent infringement action made legally sufficient claim that corporation served as California corporate officer's agent in New York such that officer was subject to jurisdiction in federal court in New York;
complaint claimed that alleged patent infringement occurred with officer's knowledge and consent and for his
benefit and that officer exercised control over corporation. Kinetic Instruments, Inc. v. Lares, 1992, 802 F.Supp.
976, 25 U.S.P.Q.2d 1122. Patents
288(6)
Plaintiff in employment discrimination action was allowed to amend complaint to name proper defendant as parent of his employer's corporation during period of time when employee and other senior management employees
were terminated; amendment to complaint would not result in undue delay or prejudice to defendants and parent
may be subject to personal jurisdiction in New York based on acts of its subsidiary, though it was not New York
corporation, and, allegedly did not do business in New York. Agugliaro v. Brooks Bros., Inc., 1992, 802 F.Supp.
956. Federal Civil Procedure
392
Plaintiff alleged facts indicating that two individuals were acting as agent of corporate defendant for purposes of
exercise of long-arm jurisdiction by asserting that money raised by one agent was simply funneled into the corporate defendant and that monies advanced by agent to the corporate defendant were never paid back to the
agent. Cantor v. Life Alert, Inc., 1987, 655 F.Supp. 673. Federal Courts
94
III. TRANSACTION OF BUSINESS
Page 194
<Subdivision Index>
Accounts, banking, transaction of business, banking 223
Actions against client, legal services 255
Acts of insured, insurance 245
Advertisements, solicitation of business 288
Arbitration 220
Artistic endeavors 221
Banking 222-224
Banking - In general 222
Banking - Check collection 224
Banking - Deposits and accounts 223
Benefit and protection of laws, negotiation and execution of contract, transaction of business 210
Benefit and protection of laws, purposeful acts 191
Burden of proof 187, 194, 302
Burden of proof - Cause of action arising from transaction of business 187
Burden of proof - Generally 302
Burden of proof - Purposeful acts 194
Business license holder 225
Casual arrangements 174
Cause of action arising from transaction of business 176-187
Cause of action arising from transaction of business - In general 176
Cause of action arising from transaction of business - Burden of proof 187
Cause of action arising from transaction of business - Communications into state 183
Cause of action arising from transaction of business - Contracts 184
Cause of action arising from transaction of business - Determination 179
Cause of action arising from transaction of business - Elements 178
Cause of action arising from transaction of business - Fraud or misrepresentation 185
Cause of action arising from transaction of business - Legislative intent 177
Cause of action arising from transaction of business - Nexus or substantial relationship 180
Cause of action arising from transaction of business - Particular cases 186
Cause of action arising from transaction of business - Receipt of income 186.5
Cause of action arising from transaction of business - Single act 182
Cause of action arising from transaction of business - Sufficiency of contacts 181
Check collection, banking 224
Checks, generally, transaction of business 228
Choice of law agreements 164
Civil rights violations 226
Clubs and associations 227
Commercial nature of transaction 173
Commercial paper 228
Commodities trading 229
Communications into state 183, 192, 202, 207, 212-216
Communications into state - In general 212
Communications into state - Cause of action arising from transaction of business 183
Page 195
Communications into state - Contracts 202
Communications into state - Mailings 215
Communications into state - Negotiation and execution of contract 207
Communications into state - Purposeful acts 192
Communications into state - Sufficiency of communications into state 213
Communications into state - Telephone calls 214
Communications into state - Video conference 216
Conferences, visits to state 301
Construction with other laws 163
Contacts with state 243, 252
Contacts with state - Insurance 243
Contacts with state - Internet websites 252
Contracts 184, 195-204
Contracts - In general 195
Contracts - Cause of action arising from transaction of business 184
Contracts - Communications into state 202
Contracts - Factors for jurisdiction relating to contracts 196
Contracts - Insufficient contacts 204
Contracts - Ongoing contractual relationship 200
Contracts - Performance 197
Contracts - Performance by plaintiff 198
Contracts - Single act 201
Contracts - Sufficiency of contacts 203
Contracts - Supervision or control of performance 199
Control of performance, contracts, transaction of business, contracts 199
Conventions, visits to state 301
Conveyance of real property 264
Copyrights or patents or trademarks 230, 251, 270, 282, 294
Copyrights or patents or trademarks - Generally 230
Copyrights or patents or trademarks - Internet websites 251
Copyrights or patents or trademarks - Sales in state 270
Copyrights or patents or trademarks - Shipment or supply of goods 282
Copyrights or patents or trademarks - Solicitation of business 294
Corporate directors 231
Corporate officers, transaction of business 231.5
Course of business 171
Dealerships 238
Declaratory judgment 232
Defamation or libel 233
Deposits and accounts, banking 223
Determination 166, 179
Determination - Cause of action arising from transaction of business 179
Determination - Generally 166
Distribution agreements 234
Doing business distinguished 175
Page 196
Drafts, transaction of business 228
Due process 161, 189, 284
Due process - Generally 161
Due process - Purposeful acts 189
Due process - Solicitation of business 284
Electronic communication 183, 192, 202, 207, 212-216
Elements, cause of action arising from transaction of business 178
Elements of jurisdiction based on transaction of business 165
E-mail 183, 192, 202, 207
E-mail - Cause of action arising from transaction of business 183
E-mail - Contracts 202
E-mail - Negotiation and execution of contract 207
E-mail - Purposeful acts 192
E-mail 183, 192, 202, 207, 212-216
Employment 235
Equipment installation and repair 242
F.O.B. shipment, shipment or supply of goods 277
Factors for jurisdiction relating to contracts 196
Factual determination, transaction of business 166
Faxes 183, 192, 202, 207, 212-216
Forum selection agreements, transaction of business 164
Franchises 236
Fraud or misrepresentation 237
Fraud or misrepresentation, cause of action arising from transaction of business 185
Freight forwarders, shipment or supply of goods 280
Government officers and employees 239
Guaranties 240
Indemnification agreements 241
Installation and repair of equipment 242
Insufficient contacts 204, 279
Insufficient contacts - Contracts 204
Insufficient contacts - Shipment or supply of goods 279
Insurance 243-247
Insurance - Acts of insured 245
Insurance - Contacts with state 243
Insurance - Meetings 247
Insurance - Property or person within state 246
Insurance - Reinsurance 244
Integrated enterprises 248
Intellectual property 230
Interactivity spectrum, internet websites 250
Internet websites 249-252
Internet websites - In general 249
Internet websites - Contacts with state 252
Internet websites - Copyrights or patents or trademarks 251
Page 197
Internet websites - Passive/active analysis 250
Known destination in state, shipment or supply of goods 281
Leases 253
Legal services 254-256
Legal services - Actions against client 255
Legal services - Out of state law firm 256
Legal services - Retaining attorney in state 254
Legislative intent, cause of action arising from transaction of business 177
Libel, transaction of business 233
Licensing agreements 257
Loans 258
Local sales representative, solicitation of business 290
Mail solicitation of business 286
Mailings 183, 192, 202, 207, 215
Mailings - Cause of action arising from transaction of business 183
Mailings - Communications into state 215
Mailings - Contracts 202
Mailings - Negotiation and execution of contract 207
Mailings - Purposeful acts 192
Marketing, solicitation of business 287
Medical services 259
Meetings 208, 247, 299
Meetings - Insurance 247
Meetings - Negotiation and execution of contract 208
Meetings - Visits to state 299
Misrepresentation 237
Nature and quality of transactions, generally 167
Negotiable instruments, transaction of business 228
Negotiation and execution of contract 205-211
Negotiation and execution of contract - In general 205
Negotiation and execution of contract - Benefit and protection of laws 210
Negotiation and execution of contract - Communications into state 207
Negotiation and execution of contract - Meetings 208
Negotiation and execution of contract - Particular contracts 211
Negotiation and execution of contract - Place of signing contract 206
Negotiation and execution of contract - Preliminary negotiations 209
Nexus or substantial relationship, cause of action arising from transaction of business 180
Noncommercial or casual arrangements 174
Ongoing contractual relationship, contracts 200
Out of state law firm, legal services 256
Parent and subsidiary corporations 260
Particular advertisements, solicitation of business 289
Particular cases 186, 193, 218
Particular cases - Cause of action arising from transaction of business 186
Particular cases - Purposeful acts 193
Page 198
Particular cases - Totality of circumstances 218
Particular contracts, negotiation and execution of contract 211
Particular meetings, visits to state 300
Passive/active analysis, internet websites 250
Patents 230
Payment or transfer of money 261
Performance, contracts 197
Performance by plaintiff, contracts 198
Physical presence or absence, generally 172
Place of signing contract, negotiation and execution of contract 206
Preliminary negotiations, negotiation and execution of contract 209
Privilege of doing business in state 191, 210
Privilege of doing business in state - Negotiation and execution of contract 210
Privilege of doing business in state - Purposeful acts 191
Products liability 262, 269
Products liability - Generally 262
Products liability - Sales in state 269
Promissory notes, transaction of business 228
Property or person within state, insurance 246
Purchases in state 263
Purpose, visits to state 298
Purpose of contact, solicitation of business 285
Purposeful acts 188-194
Purposeful acts - In general 188
Purposeful acts - Benefit and protection of laws 191
Purposeful acts - Burden of proof 194
Purposeful acts - Communications into state 192
Purposeful acts - Due process 189
Purposeful acts - Particular cases 193
Purposeful acts - Single act 190
Real property 264
Receipt of income, cause of action arising from transaction of business, transaction of business 186.5
Recovery of fees, legal services 255
Registration of vehicle 265
Reinsurance 244
Retaining attorney in state, legal services 254
Retroactive application of section 162
RICO actions 266
Risk of loss, shipment or supply of goods 277
Sales in state 267-271
Sales in state - In general 267
Sales in state - Copyrights or patents or trademarks 270
Sales in state - Products liability 269
Sales in state - Sales through agents or subsidiaries 268
Sales in state - Sufficiency of contacts 271
Page 199
Sales through agents or subsidiaries, sales in state 268
Securities trading 272
Separation agreements 273
Settlement negotiations and agreements 274
Shareholders 275
Shipment or supply of goods 276-282
Shipment or supply of goods - In general 276
Shipment or supply of goods - Copyrights or patents or trademarks 282
Shipment or supply of goods - Freight forwarders 280
Shipment or supply of goods - Insufficient contacts 279
Shipment or supply of goods - Known destination in state 281
Shipment or supply of goods - Risk of loss 277
Shipment or supply of goods - Sufficiency of contacts 278
Signing, contracts, transaction of business 205-211
Single act 170, 182, 190, 201
Single act - Cause of action arising from transaction of business 182
Single act - Contracts 201
Single act - Generally 170
Single act - Purposeful acts 190
Single transaction of business, generally 167
Slander, transaction of business 233
Social calls, visits to state, transaction of business 297-301
Solicitation of business 283-295
Solicitation of business - In general 283
Solicitation of business - Advertisements 288
Solicitation of business - Copyrights or patents or trademarks 294
Solicitation of business - Due process 284
Solicitation of business - Local sales representative 290
Solicitation of business - Mail solicitation of business 286
Solicitation of business - Marketing 287
Solicitation of business - Particular advertisements 289
Solicitation of business - Purpose of contact 285
Solicitation of business - Sufficiency of contacts 295
Solicitation of business - Telephone listing 292
Solicitation of business - Telephone sales 291
Solicitation of business - Travel agents or reservation systems 293
Storage of goods 296
Subsidiary companies, transaction of business 260
Substantial relationship, cause of action arising from transaction of business 180
Sufficiency of communications into state 213
Sufficiency of contacts 181, 203, 271, 278, 295
Sufficiency of contacts - Cause of action arising from transaction of business 181
Sufficiency of contacts - Contracts 203
Sufficiency of contacts - Sales in state 271
Sufficiency of contacts - Shipment or supply of goods 278
Page 200
Sufficiency of contacts - Solicitation of business 295
Supervision or control of performance, contracts 199
Telephone 183, 192, 202, 207
Telephone - Cause of action arising from transaction of business 183
Telephone - Contracts 202
Telephone - Negotiation and execution of contract 207
Telephone - Purposeful acts 192
Telephone calls, communications into state 214
Telephone listing, solicitation of business 292
Telephone sales, solicitation of business 291
Time of commencement of action 169
Time of transaction 168
Torts, generally 219
Totality of circumstances 217-218
Totality of circumstances - In general 217
Totality of circumstances - Particular cases 218
Trade shows, conventions or conferences, visits to state 301
Trademarks 230
Travel agents or reservation systems, solicitation of business 293
Vehicle registration 265
Video conference, communications into state 216
Visits to state 297-301
Visits to state - In general 297
Visits to state - Meetings 299
Visits to state - Particular meetings 300
Visits to state - Purpose 298
Visits to state - Trade shows, conventions or conferences 301
Websites, transaction of business 249-252
161. Due process, generally, transaction of business
Exercise of jurisdiction under “transacting business” provision of New York's long-arm statute will comport
with the due process guarantees only if the defendant purposefully avails itself of the privilege of conducting
activities within New York, thus invoking the benefits and protections of its laws. ESI, Inc. v. Coastal Corp.,
3965(3); Courts
13.3(11)
Exercise of personal jurisdiction over single-parent captive insurance company that contracted in the Cayman Islands to insure professional liability risks in New York comported with due process in physician's action for declaratory judgment that company was obligated to indemnify him in underlying medical malpractice action, even
though company had no direct contacts with New York; minimum contacts requirement was met by policy language indicating that policy insured contract physicians of New York hospital at which alleged malpractice occurred, which was defined as “covered person,” and permitting action to proceed in New York comported with
notions of fair play and substantial justice, since remaining defendants and physician were either residents of
New York or authorized to do business in New York, and alleged basis for liability occurred in New York. Constantine v. Stella Maris Ins. Co., Ltd. (4 Dept. 2012) 97 A.D.3d 1129, 948 N.Y.S.2d 802, leave to appeal denied
Page 201
98 A.D.3d 1328, 953 N.Y.S.2d 179. Constitutional Law
3965(6); Courts
13.5(14)
162. Retroactive application of section, transaction of business
That plaintiff's claim arose and transaction of business by defendant occurred prior to enactment of this section
permitting exercise of personal jurisdiction over nondomiciliary did not preclude this section from governing in
70
case. U.S. v. Montreal Trust Co., 1964, 35 F.R.D. 216. Process
This section applied to action begun after its effective date but arising out of business transactions which occurred before effective date. Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc. (1 Dept. 1964) 21
A.D.2d 474, 251 N.Y.S.2d 740, affirmed 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68, certiorari denied 86
13.3(11)
S.Ct. 241, 382 U.S. 905, 15 L.Ed.2d 158. Courts
The 1979 amendment to this section by L.1979, c. 252, § 1, extending long-arm jurisdiction to nondomiciliaries
who make contracts to be performed in New York and then totally fail to perform created no new cause of action, but merely enlarged class of defendants and number of forums available to plaintiff to seek redress for
preexisting rights and it was remedial and not substantive; thus the amendment applied retroactively to suits
based on contracts made before it became effective. Pyramid Co. of Ithaca v. Original Great American Chocolate Chip Cookie Co., Inc., 1980, 102 Misc.2d 1056, 425 N.Y.S.2d 230. Courts
13.5(3)
“Transacting any business” provision of this section may be applied retroactively. Wilsey v. Gavett, 1965, 49
13.3(11)
This section permitting acquisition of personal jurisdiction over nondomiciliary arising out of transaction of any
business in New York may be retroactively applied to validate summons served before this chapter went into effect. William Rand, Inc. v. Joyas De Fantasia, S.A., 1964, 41 Misc.2d 838, 246 N.Y.S.2d 778. Process
49
This section providing that court may exercise personal jurisdiction over any nondomiciliary, as to a cause of action arising from any of the acts enumerated if, through an agent, he transacts any business within state was controlling even though cause of action accrued and the action commenced prior to effective date of this section.
Steele v. De Leeuw, 1963, 40 Misc.2d 807, 244 N.Y.S.2d 97. Courts
13.6(1)
163. Construction with other laws, transaction of business
Test for transacting business for venue purposes under the antitrust laws is coextensive with the test for personal
jurisdiction under this section. Agra Chemical Distributing Co., Inc. v. Marion Laboratories, Inc., 1981, 523
F.Supp. 699. Antitrust And Trade Regulation
969
164. Choice of law agreements, transaction of business
Party opposing enforcement of a forum selection clause in a contract must demonstrate exceptional facts explaining why he should be relieved from his contractual duty to litigate in specified forum. Mpower Communic-
Page 202
ations Corp. v. Voipld.com, Inc., 2004, 304 F.Supp.2d 473. Contracts
127(4)
Existence of forum selection clause in parties' contract calling for application of Virginia law had minimal significance in determining whether jurisdiction existed over Virginia defendant under “transacting business” section
of New York long-arm statute. Creative Socio-Medics, Corp. v. City of Richmond, 2002, 219 F.Supp.2d 300.
76.15
Federal Courts
Nonresident tool and die manufacturer had sufficient minimum contacts with New York to support the exercise
of personal jurisdiction in breach of contract action brought by pool manufacturer, under New York long-arm
statute; parties had previously entered into 13 separate agreements, which included forum selection clause that
specified action could be brought in New York, tool and die manufacturer was a sophisticated business entity,
who purposefully engaged in business activity with New York customers and services accounts on a continuous
79
basis. Loudon Plastics, Inc. v. Brenner Tool & Die, Inc., 1999, 74 F.Supp.2d 182. Federal Courts
Existence of New York choice of law clause in contract, while not sufficient standing alone to confer personal
jurisdiction, is relevant in determining whether nondomiciliary transacted business in New York for purposes of
New York's long-arm statute. Kahn Lucas Lancaster, Inc. v. Lark Intern. Ltd., 1997, 956 F.Supp. 1131. Courts
13.3(11)
Federal district court sitting in New York lacked personal jurisdiction over New Jersey customer in breach of
contract suit brought by New York mortgage brokers, even though contract provided that New York law would
apply; while governing law provision was factor weighing in favor of New York jurisdiction, it was outweighed
by lack of other contacts between customer and New York. Premier Lending Services, Inc. v. J.L.J. Associates,
1996, 924 F.Supp. 13. Contracts
76.30
California resident's agreement to indemnify plaintiff for expenses he incurred in lawsuit instituted in New York
did not constitute “business transaction” within state of New York, for purposes of that state's long-arm statute;
in fact, agreement stated that parties consented to exclusive jurisdiction and venue in state and federal court sitting in New Jersey and underlying suit involved indemnifying New Jersey resident for legal expenses incurred in
dispute involving property in Florida. Falik v. Smith, 1995, 884 F.Supp. 862. Federal Courts
76.15
165. Elements of jurisdiction based on transaction of business
In order for court to obtain personal jurisdiction over party under “transaction of business” prong of New York's
long-arm statute, party need not be physically present in state at time of service, rather, statute extends jurisdiction of New York state courts to any nonresident who has purposely availed himself of privilege of conducting
activities within New York and thereby invoked benefits and protections of its laws; single transaction would be
sufficient to fulfill this requirement, so long as relevant cause of action also arises from that transaction. Bank
Brussels Lambert v. Fiddler Gonzalez & Rodriguez, C.A.2 (N.Y.)1999, 171 F.3d 779, on remand 2001 WL
893362. Courts
13.3(11)
Israeli investor did not “transact business” in New York within the meaning of New York's long-arm statute, as
Page 203
required for exercise of personal jurisdiction over it in New York importer's action alleging claims for, inter alia,
partnership, misrepresentation, promissory estoppel, fraud, misappropriation of trade secrets, and unfair competition, where investor's exploratory meetings and communications with importer in New York never resulted in a
contract, and investor did not purposefully avail itself of a New York forum by soliciting business in New York.
86
V Cars, LLC v. Israel Corp., 2012, 902 F.Supp.2d 349. Federal Courts
District Court lacked personal jurisdiction over business entities related to a law firm, in action brought by group
of companies that attempted to start a credit card business in China against law firm and business entities and individuals related to the firm, all located in China, that they had retained for legal and other professional services
in preparation for their credit card business, where entities had not engaged in any transaction or tortious act
within or affecting New York, as required for exercise of general or specific personal jurisdiction under New
86
York law. TAGC Management, LLC v. Lehman, 2012, 842 F.Supp.2d 575. Federal Courts
The “transacting business” element of New York's long-arm statute requires a non-domiciliary defendant to have
purposely availed himself of the privilege of conducting activities within New York and thereby invoked the benefits and protections of its laws. Energy Brands Inc. v. Spiritual Brands, Inc., 2008, 571 F.Supp.2d 458. Courts
13.3(11)
To establish personal jurisdiction under the transaction of business provision of the long-arm statute, the first requirement is that there be a transaction of business within New York. Opticare Acquisition Corp. v. Castillo (2
13.3(11)
166. Determination, generally, transaction of business
Federal district court in New York lacked personal jurisdiction over corporation headquartered in New Jersey
and named as defendant in employment discrimination and retaliation suit by terminated karate school instructors; references to “headquarters” made by several witnesses during depositions in case did not demonstrate that
corporation was involved in decisions to terminate plaintiffs' employment, nothing in record demonstrated that,
in context of personnel matters, corporation provided anything more than administrative services and payroll
processing to New York karate centers, and instructors failed to offer any evidence that their causes of action
against corporation arose from its transaction of business in New York State. Spiegel v. Schulmann, C.A.2
(N.Y.)2010, 604 F.3d 72, on remand 2010 WL 3619577. Federal Courts
79
In determining whether an out-of-state defendant has transacted business in New York, within meaning of New
York's long-arm statute, could should consider: (1) whether defendant has an ongoing contractual relationship
with New York corporation; (2) whether contract was negotiated or executed in New York and whether, after
executing contract with New York business, defendant has visited New York for purpose of meeting with parties
to contract regarding relationship; (3) what choice-of-law clause is in any such contract; and (4) whether contract requires defendant to send notices and payments into forum state. AIG Financial Products Corp. v. Public
Utility Dist. No. 1 of Snohomish County, Wash., 2009, 675 F.Supp.2d 354. Courts
13.3(11)
Factors to be considered when determining whether non-domiciliary defendant has transacted business in state,
Page 204
within meaning of New York long-arm statute, include (1) whether defendant has an ongoing contractual relationship with a New York corporation, (2) whether defendant negotiated or executed a contract in New York,
and whether defendant visited New York after executing the contract with the parties, (3) whether there is a
choice-of-law clause in any such contract, and (4) whether the contract requires franchisees to send notices and
payments into the forum state or subjects them to supervision by the corporation in the forum state. Beatie and
13.3(11)
Osborn LLP v. Patriot Scientific Corp., 2006, 431 F.Supp.2d 367. Courts
Whether a defendant “transacts business within the state” within purview of this section depends heavily on the
facts in each case. Rainbow Indus. Products v. Haybuster Mfg., Inc., 1976, 419 F.Supp. 543. Federal Courts
76.15
Whether the type of activity conducted within New York state is adequate to constitute “transaction of business”
under this section depends upon the facts in each case, and the question cannot be answered by applying a mechanical formula. Franklin Nat. Bank v. Krakow, D.C.D.C.1969, 295 F.Supp. 910. Federal Courts
76.15
Activities by officers of corporation that financed allegedly fraudulent sales at deceptive and usurious rates, including their signing of leases for stores where allegedly fraudulent sales took place, were sufficient to constitute transacting business within state, and due process was not offended by subjecting those individuals to jurisdiction in suit by Attorney General to enjoin the allegedly fraudulent business conduct. People ex rel. Schneiderman v. Frisco Marketing of N.Y. LLC (4 Dept. 2012) 93 A.D.3d 1352, 941 N.Y.S.2d 823. Constitutional Law
3965(4); Courts
13.5(10)
Personal jurisdiction over defendant non-domiciliary on claim that arises out of defendant's alleged transaction
of business in New York cannot be predicated solely on the plaintiff's acts within New York. Corporate Campaign, Inc. v. Local 7837, United Paperworkers Intern. Union (1 Dept. 1999) 265 A.D.2d 274, 697 N.Y.S.2d 37.
Courts
13.3(11)
Whether type of business activity conducted within state is adequate to satisfy requirements of this section relating to court's exercise of personal jurisdiction over nondomiciliaries depends upon facts in particular case, and
question cannot be answered by applying a mechanical formula but only by ascertaining what is fair and reasonable in the circumstances. Schroeder v. Loomis, 1965, 46 Misc.2d 184, 259 N.Y.S.2d 42. Courts
13.3(2)
167. Nature and quality of transactions, generally, transaction of business
“Transacting business,” within meaning of New York long-arm statute, requires only a minimal quantity of
activity, provided that it is of the right nature and quality. Mende v. Milestone Technology, Inc., 2003, 269
13.3(11)
Under New York law, transacting business, for purposes of personal jurisdiction, requires only a minimal quantity of activity, provided that it is of the right nature and quality. Gleason Works v. Klingelnberg-Oerlikon
Geartec Vertriebs-GmbH, 1999, 58 F.Supp.2d 47. Courts
13.3(11)
Page 205
It is nature and quality of contacts with New York, not purely amount of contacts, that must be considered in determining whether out-of-state defendant has transacted business in New York within meaning of New York
long-arm statute. National Telephone Directory Consultants, Inc. v. Bellsouth Advertising & Pub. Corp., 1998,
13.3(11)
Nature and quality, and not amount, of New York contacts determine issue as to whether a person has transacted
business within New York within meaning of this section; even an isolated contact, if meaningful enough, is sufficient to confer jurisdiction. Development Direction, Inc. v. Zachary, 1976, 430 F.Supp. 783. Federal Courts
76.15
Test of whether foreign corporation is transacting business in New York is what kind of acts and not how many
the nonresident corporation engaged in in New York. Lumbermens Mut. Cas. Co. v. Borden Co., 1967, 265
3202
F.Supp. 99. Corporations And Business Organizations
168. Time of transaction, transaction of business
German bank transacted business in New York within meaning of specific jurisdiction provision of New York
long-arm statute; bank purposely and deliberately selected New York as the situs to launch structured investment vehicle, which allegedly was involved in a fraudulent scheme intended to defraud investors, because New
York was widely regarded as the capital of U.S. capital markets. King County, Wash. v. IKB Deutsche Industriebank AG, 2010, 712 F.Supp.2d 104. Federal Courts
86
Since all documented business activities in New York of agents and representatives of unincorporated committee composed of apple grower organizations occurred beyond limitations period of section 214, federal court in
New York lacked in personam jurisdiction under this section over the organizations in action based on such
activities, despite speculation that the organizations' activities changed after time of documented transactions.
Rios v. Marshall, 1981, 530 F.Supp. 351. Limitation Of Actions
165
Jurisdiction in action brought in federal district court in New York against nonresident could not be based on
business associations no longer in existence at time the cause of action arose. Loria & Weinhaus, Inc. v. H. R.
Kaminsky & Sons, Inc., 1980, 495 F.Supp. 253. Federal Courts
76.20
Fact that vessel berthed in New York for four-day call was insufficient to establish a transaction of business
within New York so as to assert jurisdiction over foreign vessel owner under this section where cause of action
against foreign vessel owner was based on damage to cargo and such cargo was not loaded on vessel until after
New York call. Masonite Corp. v. Hellenic Lines, Ltd., 1976, 412 F.Supp. 434. Federal Courts
83
Where by time of plaintiff's injury, allegedly resulting from defect in machine manufactured by defendant corporation in New Jersey, defendant corporation was not engaged in any business in New York and there was no
showing of activities or transactions in New York similar to those which resulted in manufacture of machine,
jurisdiction of action was not established under this section providing that court may exercise personal jurisdiction over any nondomiciliary who in person or through agent transacts any business within state. Sevits v.
Page 206
McKiernan-Terry Corp. (New Jersey), 1967, 270 F.Supp. 887. Federal Courts
79
Brother's contacts with New York, consisting of 18 or 20 visits to his dying sister at hospital and temporary possession of sister's rings and purse, were not sufficient basis for exercise of statutory long-arm jurisdiction in action by intestate sister's husband regarding his right of election against Pennsylvania joint bank account in name
of brother and sister with right of survivorship, where joint account predated brother's New York visits to sister.
Matter of Estate of Bruno (3 Dept. 1987) 126 A.D.2d 845, 510 N.Y.S.2d 770, appeal denied 69 N.Y.2d 610, 516
13.5(2)
N.Y.S.2d 1026, 509 N.E.2d 361. Courts
169. Time of commencement of action, transaction of business
In order for court to obtain jurisdiction under “transaction of business” prong of New York long-arm statute,
party need not be physically present in state at time of service. Uebler v. Boss Media, AB, 2005, 363 F.Supp.2d
13.3(11)
499. Courts
Banking relationship between Alabama corporation and New York bank was irrelevant to determining whether
Alabama corporation was subject to jurisdiction under “doing business” provision of New York's long-arm statute [N.Y. McKinney's CPLR 301] where that relationship had ended before action had commenced. New World
Capital Corp. v. Poole Truck Line, Inc., 1985, 612 F.Supp. 166. Federal Courts
79
In determining whether there are sufficient contacts with the forum to subject defendant to long-arm jurisdiction,
court will consider the contacts with the district at the time the complaint was served, not at the time that the
cause of action accrued, so that company which had substantial contacts with New York when the antitrust action accrued but which had ceased transacting business in New York before it was served was not subject to personal jurisdiction in New York and New York was not a proper venue for the antitrust action. Agra Chemical
Distributing Co., Inc. v. Marion Laboratories, Inc., 1981, 523 F.Supp. 699. Federal Courts
76.5
New York venue did not lie as to Florida resident who was named defendant in plaintiff's action for alleged violations of federal antitrust statutes where Florida resident had no agent, owned no property and transacted no
business in New York at time of service of summons and complaint upon him in Florida pursuant to this section
even though at time of alleged violations he transacted business and directed actions of others in New York. International Business Coordinators, Inc. v. Aamco Automatic Transmissions, Inc., 1969, 305 F.Supp. 361. Antitrust And Trade Regulation
969
Thread of long-arm jurisdiction is that acts sufficient to constitute “transacting any business” arose prior to commencement of lawsuit and form nucleus of the suit, and third-party plaintiff could not utilize acts of claims adjuster occurring after accident to form basis for long-arm jurisdiction. Farm Family Mut. Ins. Co. v. Nass, 1984,
126 Misc.2d 329, 481 N.Y.S.2d 952, affirmed 121 A.D.2d 498, 503 N.Y.S.2d 820. Courts
13.3(11); Courts
13.5(14)
170. Single act, generally, transaction of business
Page 207
A single transaction may suffice for personal jurisdiction under “transacting business” prong of New York's long
arm statute, and physical presence by the defendant in the forum state during the activity is not necessary. ISI
13.3(11)
Brands, Inc. v. KCC Intern., Inc., 2006, 458 F.Supp.2d 81, 83 U.S.P.Q.2d 1942. Courts
Single transaction may suffice to confer personal jurisdiction under New York long-arm statute; physical presence by defendant in forum state during activity is not necessary. Mortgage Funding Corp. v. Boyer Lake
13.3(10)
Pointe, LC, 2005, 379 F.Supp.2d 282. Courts
Single transaction can be sufficient to fulfill “transacting business” requirement of New York long-arm statute.
12(2.15)
Uebler v. Boss Media, AB, 2005, 363 F.Supp.2d 499. Courts
Provision of New York long-arm statute allowing personal jurisdiction to be asserted over nondomiciliary corporation that transacts any business within state is a “single act statute” and requires only one transaction, even
if the defendant never entered New York. Dimensional Media Associates, Inc. v. Optical Products Development
13.4(3)
New York long arm statute allowing jurisdiction over nondomiciliary who transacts business in state requires
only minimal quantity of activity, provided that it is of right nature and quality. Palace Exploration Co. v. Petroleum Development Co., 1998, 41 F.Supp.2d 427. Courts
13.3(11)
Proof of single transaction in New York may be sufficient to invoke jurisdiction under New York long-arm statute, even if defendant never entered New York, provided that this contact was purposeful and that totality of circumstances indicate that exercise of jurisdiction is proper. Levisohn, Lerner, Berger & Langsam v. Medical Taping Systems, Inc., 1998, 10 F.Supp.2d 334. Courts
13.3(10)
Proof of one transaction in New York is sufficient to invoke jurisdiction under long-arm statute, even though defendant never enters New York, so long as defendant's activities in New York were purposeful and there is substantial relationship between the transaction and claim asserted. Kimco Exchange Place Corp. v. Thomas Benz,
Inc. (2 Dept. 2006) 34 A.D.3d 433, 824 N.Y.S.2d 353, leave to appeal denied 9 N.Y.3d 803, 840 N.Y.S.2d 762,
13.3(10)
171. Course of business, transaction of business
Defendant corporation is deemed to be “doing business” in New York, for purposes of long-arm statute, if it has
engaged in such continuous and systematic course of business there that finding of its presence in jurisdiction is
warranted. EED Holdings v. Palmer Johnson Acquisition Corp., 2004, 387 F.Supp.2d 265. Courts
13.4(3)
Danish principal of Danish manufacturing company transacted business in New York, within meaning of that
state's long-arm statute, when he traveled to New York to conduct business with United States distributor, communicated by telephone and telefax with distributor, prepared advertising and marketing information for distributor, and entered into distribution agreement with distributor. Minibooster Hydraulics A/S v. Scanwill Fluid
Page 208
Power ApS, 2004, 315 F.Supp.2d 286. Federal Courts
86
Personal jurisdiction existed over the United States Attorney General in New York, in habeas corpus proceeding
by alien challenging denial of his request for change of venue, his lengthy detention, and denial of his application for discretionary relief from deportation, inasmuch as Attorney General regularly transacted business in
639
New York in an official capacity. So v. Reno, 2003, 251 F.Supp.2d 1112. Habeas Corpus
Defendant transacted business within New York so as to satisfy New York's long-arm statute and due process
where it used New York as shipping port, New York laboratory tested its product's quality, it entered a number
of agreements with New York company, contract specified that New York law governed, defendant allegedly
sold New York company $200,000 worth of merchandise, received orders for over 67,000 cans of instant coffee,
and conducted business with New York company by mail, phone and facsimile, and defendant then nurtured and
continued to reap the benefits of lasting financial relationship with the company through a series of communications relating to the sale of products that spanned at least two years, with daily communication at times. Melkaz
Intern. Inc. v. Flavor Innovation Inc., 1996, 167 F.R.D. 634. Constitutional Law
76.15
172. Physical presence or absence, generally, transaction of business
Party need not be physically present in state at time of service in order for federal court to obtain personal jurisdiction under “transaction of business” prong of New York's long arm statute. Toledo Peoria & Western Ry.
Corp. v. Southern Illinois Railcar Co., 2000, 84 F.Supp.2d 340. Courts
13.3(11)
Fact that nondomiciliary has never been physically present in New York is not dispositive in determining jurisdiction under New York long arm statute allowing jurisdiction over nondomiciliary who transacts business in
state. Palace Exploration Co. v. Petroleum Development Co., 1998, 41 F.Supp.2d 427. Courts
13.3(11)
Proper focus of jurisdictional inquiry under New York long arm statute allowing jurisdiction over nondomiciliary who transacts business in state is on defendant's activities, not plaintiff's presence, in state. Palace Exploration Co. v. Petroleum Development Co., 1998, 41 F.Supp.2d 427. Courts
13.3(11)
Under the “contracting” or “transacting business” prong of New York's long-arm statute, court may obtain personal jurisdiction over party who is not physically present in New York at time of service. In re Med-Atlantic
Petroleum Corp., 1999, 233 B.R. 644. Courts
13.3(11)
Jurisdiction under the “transacted business” provision of the long-arm statute is proper even though the defendant never enters New York, so long as the defendant's activities there were purposeful and there is a substantial
relationship between the transaction and the claim asserted. Fischbarg v. Doucet, 2007, 9 N.Y.3d 375, 849
N.Y.S.2d 501, 880 N.E.2d 22. Courts
13.3(11)
One need not be physically present in New York to be subject to the jurisdiction of New York courts under the
Page 209
“transacts business” provision of the long-arm statute. Fischbarg v. Doucet, 2007, 9 N.Y.3d 375, 849 N.Y.S.2d
13.3(11)
501, 880 N.E.2d 22. Courts
Even when physical presence is lacking, jurisdiction under the “transacts business” provision of the long-arm
statute may still be proper if the defendant on his or her own initiative projects himself or herself into New York
to engage in a sustained and substantial transaction of business. Fischbarg v. Doucet, 2007, 9 N.Y.3d 375, 849
13.3(11)
N.Y.S.2d 501, 880 N.E.2d 22. Courts
The defendant was “transacting business” within state and was subject to jurisdiction of New York court, where
defendant's agents on two separate occasions spent several days in New York in furthering a contract to construct a pipeline across Niagara River and inspected construction site and engaged in other activities with reference to alleged contract. Iroquois Gas Corp. v. Collins, 1964, 42 Misc.2d 632, 248 N.Y.S.2d 494, affirmed 23
13.6(2)
A.D.2d 823, 258 N.Y.S.2d 376. Courts
173. Commercial nature of transaction, transaction of business
Fact that the New York activity engaged in by the members of the conducting audits, was not a typical
Multistate Tax Commission, namely, commercial enterprise did not remove such activity from the ambit of the
“transacts any business” test of this section. U. S. Steel Corp. v. Multistate Tax Commission, 1973, 367 F.Supp.
107. Federal Courts
76.35
Phrase “transacts any business” under this section clearly embodies a distinction between activities that have a
business character, which have an implicit concept of an attempt to make a profit, directly or indirectly, and other kinds of activities. Crystal Lake Camp Corp. v. Silver, 1970, 63 Misc.2d 562, 313 N.Y.S.2d 68. Courts
13.3(11)
Whether transaction is for profit is not the test for “transacting business” within this section; rather it is whether
significant “acts” are done within the state. Gilper v. Kiamesha Concord, Inc. (App. 1973) 302 A.2d 740. Courts
13.3(11)
174. Noncommercial or casual arrangements, transaction of business
Agreement between students at college in New York to share driving and expenses of pleasure trip to Colorado
did not constitute transacting business within New York so as to give special term jurisdiction of wrongful death
action brought by the estate of resident student, who was killed in an automobile accident in Ohio allegedly due
to the negligence of the other student, who was a Massachusetts resident. Porcello v. Brackett (4 Dept. 1981) 85
A.D.2d 917, 446 N.Y.S.2d 780, affirmed 57 N.Y.2d 962, 457 N.Y.S.2d 243, 443 N.E.2d 491. Courts
13.5(5)
175. Doing business distinguished, transaction of business
Under New York law, showing necessary for a finding that a nonresident defendant “transacted business” and is
Page 210
suable on a cause of action arising from that transaction is considerably less than that needed to establish defendant's “doing business” which renders defendant subject to suit on even an unrelated cause of action. Hoffritz
96
for Cutlery, Inc. v. Amajac, Ltd., C.A.2 (N.Y.)1985, 763 F.2d 55. Federal Courts
“Transacting any business” in New York under this section imposing personal jurisdiction for acts of a nondomiciliary and § 301 “doing business” in New York under New York decisional law subjecting to New York personal jurisdiction those foreign corporations doing business in New York are distinguishable. Liquid Carriers
13.3(11); Courts
13.4(3);
Corp. v. American Marine Corp., C.A.2 (N.Y.)1967, 375 F.2d 951. Courts
Federal Courts
79
To meet the criteria of “doing business” provision of New York long-arm statute, it is not essential that a contract with the nondomiciliary corporate defendant be consummated in New York, either directly or through an
agent, for the nondomiciliary's contacts with New York to constitute the requisite transaction of business. Taylor
79; Federal Courts
Devices, Inc. v. Walbridge Aldinger Co., 2008, 538 F.Supp.2d 560. Federal Courts
82
In contrast to “doing business,” “transacting business,” for purposes of New York long-arm statute, requires
only minimal quantity of activity, provided that it is of right nature and quality. Mortgage Funding Corp. v. Boyer Lake Pointe, LC, 2005, 379 F.Supp.2d 282. Courts
13.3(11)
Showing necessary for a finding that a defendant “transacted business” under New York's long-arm statute is
considerably less onerous than that required for a finding that a defendant was “doing business” under jurisdictional statute. ESI, Inc. v. Coastal Corp., 1999, 61 F.Supp.2d 35. Courts
13.3(11)
Under New York law, for purposes of personal jurisdiction, considerably less is required to establish that a defendant “transacts business” in New York than to show that it is “doing business” in New York; that relative liberality, however, is offset by the added requirement that the claim must arise out of the business transacted.
Gleason Works v. Klingelnberg-Oerlikon Geartec Vertriebs-GmbH, 1999, 58 F.Supp.2d 47. Courts
13.3(11)
Demonstrating that out-of-state defendant “transacted business” in New York and is suable on cause of action
arising from that transaction requires considerably less contact with New York than is necessary to establish that
defendant is doing business, which renders the defendant subject to suit on unrelated causes of action. Daniel v.
American Bd. of Emergency Medicine, 1997, 988 F.Supp. 127, disapproved in later appeal 428 F.3d 408. Courts
13.3(11)
Foreign corporation “doing business” in New York is “present” in that state, and therefore subject to personal
jurisdiction pursuant to New York's long arm statute, regardless of whether cause of action relates to corporation's New York contacts. Worldwide Futgol Associates, Inc. v. Event Entertainment, Inc., 1997, 983 F.Supp.
173. Courts
13.4(3)
Page 211
“Doing business” standard of New York statute governing personal jurisdiction over foreign corporations requires considerably greater showing of contacts with New York than “transacts business” standard under long79
arm statute. Ross v. Colorado Outward Bound School, Inc., 1985, 603 F.Supp. 306. Federal Courts
New York statutory provisions for exercise of long-arm jurisdiction over foreign corporation “doing business” in
New York or “transacting business” in New York involve different criteria for the nature of the contacts with the
state; jurisdiction under the “transacting business” provision requires that the cause of action arise out of the
business of the foreign corporation that is deemed to be transacted in the state. Caballero Spanish Media, Inc. v.
79
Betacom, Inc., 1984, 592 F.Supp. 1093. Federal Courts
Far fewer contacts with New York are needed to show that a defendant “transacts business” in such state, within
meaning of this section providing that court may exercise personal jurisdiction over nondomiciliary who transacts any business within the state, than are necessary to show that a defendant is “doing business” in New York
as that term has been interpreted in connection with section 301 providing that a court may exercise such jurisdiction over persons, property or status as it might have exercised heretofore. Bialek v. Racal-Milgo, Inc., 1982,
76.15
Under section 301, foreign corporation “doing business” in New York is deemed “present” and subject to personal jurisdiction, while under this section, but not under section 301, cause of action must arise out of transaction of business which is the asserted basis of jurisdiction. Puerto Rico Maritime Shipping Authority v. Almogy,
1981, 510 F.Supp. 873. Courts
13.4(3)
Generally, holding that nondomiciliary is “doing business” in New York for jurisdictional purposes implies less
pervasive finding that nondomiciliary “transacts business” in New York for purposes of this section. Bulova
Watch Co., Inc. v. K. Hattori & Co., Ltd., 1981, 508 F.Supp. 1322. Federal Courts
76.15
Far fewer contacts with New York are needed to satisfy the “transacting business” jurisdictional test of this section that are necessary to satisfy the “doing business” test of section 301, however, where a plaintiff relies on the
former statutory provision, jurisdiction extends only to matters arising out of the business transacted. M. L. Byers, Inc. v. HRG Productions, Inc., 1980, 492 F.Supp. 827. Federal Courts
76.15
Test for doing business in district for venue purposes under 28 U.S.C.A. § 1391 is not equivalent to transaction
of business test used to establish jurisdiction over a foreign corporate defendant under this section; it is analogous to doing business test used to establish jurisdiction over a person under CPLR 301. Sterling Television
Presentations, Inc. v. Shintron Co., Inc., 1978, 454 F.Supp. 183, 201 U.S.P.Q. 479. Federal Courts
79
Though “transacting business” for purpose of New York long-arm statute requires far fewer contacts with New
York than does “doing business,” such liberality is offset by the corresponding demand that the cause of action
arise from the very transaction or transactions that are relied upon to provide the contact with the forum. Marketing Showcase, Inc. v. Alberto-Culver Co., 1978, 445 F.Supp. 755. Federal Courts
76.15
Page 212
Jurisdiction over corporation under this section based on fact that it “transacts any business within state”, may
be satisfied by less activity than is necessary to show that corporation is “doing business” in state under section
of the Business Corporation Law that subjects corporation to jurisdiction for all purposes. Fontanetta v. Americ13.4(3)
an Bd. of Internal Medicine, 1969, 303 F.Supp. 427, affirmed 421 F.2d 355. Courts
“Transacts business” standard of this section providing that a court may exercise personal jurisdiction over any
nondomiciliary who in person or through an agent transacts any business within state requires less contacts than
those required by “doing business” test. Potter's Photographic Applications Co. v. Ealing Corp., 1968, 292
76.15
In admiralty suit based on accident not arising out of activities of Lebanese corporation in New York, wherein
case was brought, appropriate test in determining whether court had jurisdiction over defendant was the doing
business test and not the more liberal single-act or long-arm test contained in this section. Scott v. Middle East
5(1)
Airlines Co., S. A., 1965, 240 F.Supp. 1. Admiralty
This section enables courts to acquire personal jurisdiction over foreign corporations not “doing business” in
state in the traditional sense in case in which the cause of action asserted arose from corporation's transaction of
business in state. Public Adm'r of New York County v. Royal Bank of Canada, 1967, 19 N.Y.2d 127, 278
N.Y.S.2d 378, 224 N.E.2d 877. Courts
13.4(3)
Under this section considerably less contacts with the state are required than under former “doing business” test.
Carrolton Associates v. Abrams, 1968, 57 Misc.2d 617, 293 N.Y.S.2d 159. Courts
13.3(3); Courts
13.3(11)
This section allows the court to exercise personal jurisdiction over nondomiciliary individual or corporation if
he or it transacts any business within state as distinguished from doing business within state. Janklow v. Williams, 1964, 43 Misc.2d 1053, 252 N.Y.S.2d 785. Courts
13.3(11); Courts
13.4(3)
For purpose of obtaining jurisdiction by service of process on foreign corporation, phrase “transaction of business” is broader than phrase “doing business” and apparently requires no continuity. Curran v. Rouse Transp.
Corp., 1964, 42 Misc.2d 1055, 249 N.Y.S.2d 718.
176. Cause of action arising from transaction of business--In general
New York law controls in determining whether nondomiciliary has transacted business within New York and
whether cause of action arose from such business for purpose of application of this section providing that New
York courts may exercise personal jurisdiction over any nondomiciliary who transacts any business within state.
Fontanetta v. American Bd. of Internal Medicine, C.A.2 (N.Y.)1970, 421 F.2d 355. Federal Courts
76.15
Under New York's long-arm statute, court may assert specific personal jurisdiction over a foreign corporation if
foreign corporation transacts business within state and claim against foreign corporation arises from activity
Page 213
within New York. Duravest, Inc. v. Viscardi, A.G., 2008, 581 F.Supp.2d 628. Courts
13.4(3)
The New York long arm statute confers specific rather than general jurisdiction; a plaintiff must establish not
only that the defendant transacted business in New York, but also that the claim sued upon is one “arising from”
that transaction of business. Antaeus Enterprises, Inc. v. SD-Barn Real Estate, LLC, 2005, 396 F.Supp.2d 408.
13.3(7); Courts
13.3(8); Courts
13.3(11)
Courts
Under New York's long-arm statute, there is no requirement that jurisdiction be grounded upon either the final
act or the ultimate act causing the injury; it is sufficient if the cause of action is related to and grows out of the
transaction of business in New York. Southridge Capital Management, LLC v. Lowry, 2002, 188 F.Supp.2d 388.
13.3(11)
Courts
Casual or sporadic acts, or even a single transaction of business in New York, are sufficient to give rise to jurisdiction over a non-resident defendant under New York's long-arm statute, provided that the claim itself arises
out of those acts. Anderson v. Indiana Black Expo, Inc., 2000, 81 F.Supp.2d 494. Courts
13.3(8); Courts
13.3(11)
In order to exercise long-arm jurisdiction under New York law against a nondomiciliary who transacts any business in the state, the cause of action must arise from the acts which form the basis for the allegation that the defendant is transacting business in the state. First City Federal Sav. Bank v. Dennis, 1988, 680 F.Supp. 579. See,
also, Beacon Enterprises, Inc. v. Menzies, C.A.N.Y. 1983, 715 F.2d 757; Fontanetta v. American Bd. of Internal
Medicine, C.A.N.Y.1970, 421 F.2d 355; Terrydale Liquidating Trust v. Gramlich, D.C.N.Y.1982, 549 F.Supp.
529; Cranston Print Works Co. v. Brockmann Intern. A.G., D.C.N.Y.1981, 521 F.Supp. 609; Baldwin v. Poughkeepsie Newspapers, Inc., D.C.N.Y.1976, 410 F.Supp. 648; GTP Leisure Products, Inc. v. B-W Footwear Co.,
Inc., 1977, 55 A.D.2d 1009, 391 N.Y.S.2d 489. Federal Courts
76.15
This section which authorizes courts to exercise personal jurisdiction over nonresidents who transact business
within New York as to any cause of action arising from such transaction is not limited to actions in contract.
Xedit Corp. v. Harvel Industries Corp., Fidelipac, 1978, 456 F.Supp. 725.
Under this section giving courts of New York personal jurisdiction over acts of nonresidents if they transact any
business within state, there is no requirement that jurisdiction be grounded on either final act or ultimate act
causing injury; it is sufficient if cause of action is related and grows out of transaction of business in New York.
Legros v. Irving (1 Dept. 1971) 38 A.D.2d 53, 327 N.Y.S.2d 371, appeal dismissed 30 N.Y.2d 653, 331
N.Y.S.2d 673, 282 N.E.2d 626. Courts
13.3(11)
177. ---- Legislative intent, cause of action arising from transaction of business
In enacting this section, New York state legislature chose not to exercise full extent of its constitutional power to
permit assertion of in personam jurisdiction over non-domiciliaries; one significant limitation imposed was that
where long-arm jurisdiction is predicated on mere transaction of any business in state, plaintiff's cause of action
must have arisen out of that transaction. Columbia Pictures Industries, Inc. v. Schneider, 1977, 435 F.Supp. 742,
Page 214
affirmed 573 F.2d 1288. See, also, U.S. v. Montreal Trust Co., C.A.2 (N.Y.) 1966, 358 F.2d 239, certiorari
denied 86 S.Ct. 1366, 384 U.S. 919, 16 L.Ed.2d 440, rehearing denied 86 S.Ct. 1858, 384 U.S. 982, 16 L.Ed.2d
76.10
693. Federal Courts
178. ---- Elements, cause of action arising from transaction of business
Investors failed to sufficiently allege Nevada corporation's independent auditor, which was incorporated and had
sole office in Utah, committed tortious act outside New York that caused injury in New York, as would give rise
to personal jurisdiction under long-arm statute in action alleging negligent misrepresentation in connection with
auditor's issuance of unqualified audit report on corporation's financial statements; auditor's alleged negligent
misrepresentation outside state gave rise to investors' cause of action, but alleged site of injury was not New
York, but either Utah or China, where alleged negligence in connection with audit occurred, or Massachusetts,
where investors relied on alleged misrepresentation. Miller Inv. Trust v. Xiangchi Chen, 2013, 2013 WL
79
For defendant to come within reach of subsection of New York long-arm statute providing for personal jurisdiction over non-domiciliary who transacts business in New York, (1) she must transact business in New York, and
(2) the claim against her must arise out of that transaction. Grasso v. Bakko, 2008, 570 F.Supp.2d 392. Courts
13.3(11)
Under provision of New York long-arm statute allowing for exercise of specific personal jurisdiction over nondomiciliary who, in person or through agent, transacts any business within state, jurisdiction is proper when (1)
defendant has transacted business in New York, and (2) the cause of action arises out of the subject matter of the
transacted business. Beatie and Osborn LLP v. Patriot Scientific Corp., 2006, 431 F.Supp.2d 367. Courts
13.3(11)
Under New York's long-arm statute, a court may exercise personal jurisdiction over any non-resident defendant
if: (1) that defendant transacts any business within the state, and (2) the claim arises from those business transactions. Sole Resorts, S.A. de C.V. v. Allure Resorts Management, LLC, 2005, 397 F.Supp.2d 426, vacated and remanded 450 F.3d 100, on remand 2007 WL 646288. Courts
13.3(11)
In order for court to exercise personal jurisdiction over nondomiciliary defendant under the “transacting business” provision of New York long-arm statute, defendant must transact business in New York, and claim against
defendant must arise out of underlying business activity. Newbro v. Freed, 2004, 337 F.Supp.2d 428. Courts
13.3(11)
Plaintiff who seeks to rely on transacting business provision of New York's long-arm statute must show that (1)
defendant supplied goods or services in the state, and (2) the cause of action arises from that transaction.
Shakour v. Federal Republic of Germany, 2002, 199 F.Supp.2d 8. Courts
13.3(11)
In order for jurisdiction to lie under New York's long arm statute, it is essential that the defendant not only transact business in New York but that the claim arise out of that transaction. Atlantic Mut. Ins. Co. v. M/V HUMA-
Page 215
CAO, 2001, 169 F.Supp.2d 211. Courts
13.3(11)
To establish personal jurisdiction under New York long-arm statute, on theory that defendant transacts business
in state, plaintiff must show (1) that defendant transacts business within state, and (2) that plaintiff's claim arises
from that transaction. Levisohn, Lerner, Berger & Langsam v. Medical Taping Systems, Inc., 1998, 10
13.3(11)
New York statute requires that two conditions be met before New York court may exercise jurisdiction over
nondomiciliary: (1) nondomiciliary must transact business within New York, and (2) claim against nondomiciliary must arise out of that business transaction. Longwood Resources Corp. v. C.M. Exploration Co., Inc., 1997,
13.3(11)
988 F.Supp. 750. Courts
Court may exercise jurisdiction over defendant under New York's long arm statute if (a) defendant “transacts
business” within that state and (b) cause of action arises from that transaction of business. Worldwide Futgol
Associates, Inc. v. Event Entertainment, Inc., 1997, 983 F.Supp. 173. Courts
13.3(11)
New York's long-arm statute gives court personal jurisdiction over nonresident if two conditions are met: nondomiciliary must transact business within state, and claim against nondomiciliary must arise out of that business
activity. Durkin v. Shea, 1997, 957 F.Supp. 1360, stay vacated 1998 WL 74304. Courts
13.3(11)
179. ---- Determination, cause of action arising from transaction of business
Determining whether a claim stands in sufficient proximity to the transaction of business in the forum state to
permit the forum to exercise jurisdiction over the defendant with respect to the claim is not an exact science; it
involves a judgment as to whether the cause of action is sufficiently related to the business transacted that it
would not be unfair to deem it to arise out of the transacted business. Antaeus Enterprises, Inc. v. SD-Barn Real
Estate, LLC, 2005, 396 F.Supp.2d 408. Federal Courts
76.5
Allegations that employee of plaintiff, a New York company, and employees of United Kingdom (UK) firm, including one particular employee, worked together to use plaintiff's confidential and proprietary information to
divert work for a client from plaintiff to plaintiff's employee and the UK firm were sufficient to establish that
UK defendants transacted business in New York, through plaintiff's employee as their agent, and therefore to invoke jurisdiction over them. Front, Inc. v. Khalil (1 Dept. 2013) 103 A.D.3d 481, 960 N.Y.S.2d 79. Courts
13.3(11)
180. ---- Nexus or substantial relationship, cause of action arising from transaction of business
Claim “arises from” particular transaction, as required to support exercise of personal jurisdiction under
“transacts any business” provision of New York long-arm statute, when there is some articulable nexus between
business transacted and cause of action sued upon, or when there is substantial relationship between transaction
Page 216
and claim asserted. Sole Resort, S.A. de C.V. v. Allure Resorts Management, LLC, C.A.2 (N.Y.)2006, 450 F.3d
13.3(11)
100, on remand 2007 WL 646288. Courts
A cause of action “arises out of” a defendant's transaction of business in New York for purposes of that state's
long-arm statute when there exists an articulable nexus' or a substantial relationship between transactions occurring within the state and the cause of action sued upon. Sunward Electronics, Inc. v. McDonald, C.A.2
13.3(11)
(N.Y.)2004, 362 F.3d 17, 69 U.S.P.Q.2d 2002. Courts
For cause of action to “arise out of” party's activities in New York, for purposes of New York's long-arm statute,
there must be articulable nexus, or substantial relationship, between claim asserted and actions that occurred in
13.3(8)
New York. Kronisch v. U.S., C.A.2 (N.Y.)1998, 150 F.3d 112. Courts
Allegations that non-resident corporation's president transacted business in New York, through extensive travel
to present sales, attend trade shows, and conduct a seminar to reach a local New York market were insufficient
to give rise to specific jurisdiction over president, pursuant to New York's long-arm statute, since plaintiff failed
to allege the existence of any nexus between president's New York-based transactions and causes of action
against corporation for breach of contract, negligent misrepresentation, or breach of fiduciary duty based on failure to provide equity interest in newly created limited liability company (LLC) for work plaintiff performed in
lieu of direct compensation. Phillips v. Reed Group, Ltd., 2013, 2013 WL 3340293. Federal Courts
76.20
Non-resident chemical company was not subject to personal jurisdiction in New York, for purposes of breach of
contract suit, pursuant to the “transacting business” prong of New York's long-arm statute, where company had
no on-going contractual relationship with a New York entity, aside from the alleged agreement at issue, contract
to purchase chemicals from in-state company had been made electronically, by telephone and email, without defendant's presence in the state, no performance was to be provided in New York, rather, the product was to be
delivered directly from India to a warehouse in defendant's state, and no notice or payments were sent to New
York, since defendant had wired its ten percent down payment to plaintiff's Chicago bank account. Wego Chemical & Mineral Corp. v. Magnablend Inc., 2013, 2013 WL 2211460. Federal Courts
79
United States petroleum corporation, against whom multibillion dollar judgment was entered in Ecuadorian provincial court, in action brought by indigenous peoples of Amazonian rain forest alleging that corporation polluted rain forest, was likely to establish sufficient nexus between business transacted by indigenous peoples' foreign representatives in New York and corporation's claims to subject representatives to specific jurisdiction in
New York, as supported issuance of preliminary injunction barring enforcement of judgment outside Ecuador.
Chevron Corp. v. Donziger, 2011, 768 F.Supp.2d 581, stay pending appeal denied 2011 WL 1408386, stay
pending appeal denied 2011 WL 1560926, vacated 2011 WL 4375022, reversed and remanded 667 F.3d 232,
certiorari denied 133 S.Ct. 423, 184 L.Ed.2d 288. Injunction
1174
Sufficient nexus existed between non-domiciliary major league baseball pitcher's New York contacts and trainer's causes of action for defamation, malicious prosecution, and intentional infliction of emotional distress for
the court to find jurisdiction under New York's long arm statute; trainer claimed that, as a result of his revealing
that he allegedly injected pitcher with steroids, pitcher launched a fierce public relations campaign designed to
Page 217
be a sockdolager, defaming trainer, filing a baseless lawsuit against trainer in Texas, and making statements
causing trainer severe emotional distress, trainer also alleged that the contract between he and pitcher contemplated the steroid use pitcher vociferously denied and that those denials formed the basis of his claims, and that
contract was allegedly made while pitcher was employed by a New York sports team and was performed in part
in New York. McNamee v. Clemens, 2011, 762 F.Supp.2d 584, clarification denied 2013 WL 3968740. Federal
76.25
Courts
Transacting business element of New York's long-arm statute requires a defendant to have purposely availed
himself of the privilege of conducting activities within New York and thereby invoked the benefits and protections of its laws; “arising out of” element requires a substantial nexus between the business transaction and the
claim. U.S. Commodity Futures Trading Com'n v. Amaranth Advisors, L.L.C., 2008, 554 F.Supp.2d 523, recon13.3(11)
sideration denied. Courts
A determination that a cause of action “arises” out of a New York transaction within the context of the provision
of New York's long-arm statute for asserting jurisdiction over a nondomicilliary defendant who transacts any
business within the state so long as the cause of action arises out of the defendant corporation's New York transaction requires a finding of an articulable nexus between the transaction and the cause of action or a substantial
relationship between the transaction and the claim asserted. Stephan v. Babysport, LLC, 2007, 499 F.Supp.2d
279. Courts
13.4(3)
Articulable nexus existed between trademark and breach of contract claims asserted by New York nautical services corporation and the business transacted by Florida licensees in New York, as was required to exercise personal jurisdiction under New York state long-arm statute; although alleged infringing conduct occurred in Florida, licensees had previously entered into and operated under a licensing agreement with New York corporation,
and disputed validity of that agreement underlined trademark claims, and contract claims arose under agreement
that was negotiated, in part, through telephone and written communications made to New York, that required
performance in New York by mailing payments to and receiving payments from New York headquarters, and
contained New York choice-of-law provision. Sea Tow Services Intern., Inc. v. Pontin, 2007, 472 F.Supp.2d 349
. Federal Courts
79
Courts considering whether personal jurisdiction exists under “transacts business” prong of New York's longarm statute look to the totality of the circumstances to determine whether defendant has engaged in purposeful
activity within state and require a substantial nexus between the business transacted and the cause of action sued
upon; jurisdiction cannot be founded upon random, fortuitous, or attenuated contacts. Beatie and Osborn LLP v.
Patriot Scientific Corp., 2006, 431 F.Supp.2d 367. Courts
13.3(11)
To support personal jurisdiction under New York's long-arm statute, business transacted by foreign defendant in
New York must bear a substantial relationship to the transaction out of which the cause of action arises. Beatie
and Osborn LLP v. Patriot Scientific Corp., 2006, 431 F.Supp.2d 367. Courts
13.3(11)
Cause of action arises from defendant's New York contacts, for purposes of New York long-arm statute allowing
for specific personal jurisdiction over non-domiciliary who transacts business within state, if the contacts are
Page 218
substantially proximate to the allegedly unlawful acts. Beatie and Osborn LLP v. Patriot Scientific Corp., 2006,
13.3(11)
Defendant who transacts business in New York will be subject to personal jurisdiction there if acts were purposeful and there is substantial relationship between those acts and plaintiff's claim. Cavu Releasing, LLC. v.
13.3(11)
Fries, 2005, 419 F.Supp.2d 388. Courts
To determine whether a sufficient nexus exists between the cause of action and the transaction of business in the
forum state to permit the forum to exercise jurisdiction over the defendant with respect to the claim, a court must
evaluate the totality of the circumstances surrounding defendants' activities in New York in connection with the
matter giving rise to the lawsuit. Antaeus Enterprises, Inc. v. SD-Barn Real Estate, LLC, 2005, 396 F.Supp.2d
76.5
408. Federal Courts
In determining whether foreign corporate defendant transacted business in New York, for purposes of long-arm
statute, what counts is not quantity of contacts with New York, but rather nature and quality of contacts. EED
Holdings v. Palmer Johnson Acquisition Corp., 2004, 387 F.Supp.2d 265. Federal Courts
79
Court may exercise personal jurisdiction over nondomiciliary defendant under the “transacting business” provision of New York long-arm statute, if there exists some articulable nexus between the transacted business and
cause of action on which suit is brought. Newbro v. Freed, 2004, 337 F.Supp.2d 428. Courts
13.3(11)
New York long-arm statute authorizing exercise of jurisdiction over nondomiciliaries for tort and contract
claims arising from transaction of business in state requires a substantial nexus between the cause of action and
the defendants' activities in New York. First Capital Asset Management, Inc. v. Brickellbush, Inc., 2002, 218
F.Supp.2d 369, on reconsideration 219 F.Supp.2d 576, affirmed 385 F.3d 159. Courts
13.5(3); Courts
13.5(4)
Under New York's long-arm statute, there must be a strong nexus between the plaintiff's cause of action and the
defendant's in state conduct. Snyder v. Ply Gem Industries, Inc., 2001, 200 F.Supp.2d 246. Courts
13.3(8)
Substantial relationship between defendant's purposeful activities within New York and transaction out of which
cause of action arose that is required for exercise of personal jurisdiction under New York's long-arm statute can
be shown when an action is sufficiently related to the business transacted that it would not be unfair to deem it
to arise out of the transacted business. Southridge Capital Management, LLC v. Lowry, 2002, 188 F.Supp.2d
388. Courts
13.3(11)
Under New York long-arm statute, a claim “arises out” of a party's transaction of business if it is sufficiently related to the business transacted that it would not be unfair to deem it to arise out of the transacted business, that
is, if an articulable nexus exists between the claim and the transaction, and the defendant has purposefully
availed itself of the privilege of conducting activities within New York and thereby invoked the benefits and
protections of its laws. Cromer Finance Ltd. v. Berger, 2001, 137 F.Supp.2d 452, 189 A.L.R. Fed. 593, reconsid-
Page 219
eration denied 2001 WL 506908, motion denied 2001 WL 935475. Courts
13.3(11)
Substantial nexus existed between the business transacted and the breach of contract cause of action sued upon
to warrant assertion of specific jurisdiction over California manufacturer pursuant to New York long-arm statute; contract specified that New York advertising broker would provide services in New York at an agreed price,
and manufacturer allegedly failed to make the appropriate payments. Photoactive Productions, Inc. v. AL-OR
81
Intern. Ltd., 2000, 99 F.Supp.2d 281. Federal Courts
Under New York long-arm statute, personal jurisdiction based on a “transacting business” theory requires that
the plaintiff's claims “arise out of” the defendant's transactions in the state; a claim “arises out of” a transaction
if it is sufficiently related to the business transacted that it would not be unfair to deem it to arise out of the
transacted business; there must be a “substantial nexus” between the business transacted and the cause of action
sued upon. New York Islanders Hockey Club, LLP v. Comerica Bank--Texas, 1999, 71 F.Supp.2d 108. Courts
13.3(11)
For purposes of exercising personal jurisdiction based on New York's long-arm statute, a cause of action arises
out of activities in New York if there is an “articulable nexus” or a “substantial relationship” between the claim
asserted and the activities that occurred in New York. ESI, Inc. v. Coastal Corp., 1999, 61 F.Supp.2d 35. Courts
13.3(8)
To prove that a cause a action arises from activities in the state, for purposes of New York long-arm statute,
there must be an articulable nexus, or a substantial relationship, between the claim asserted and the actions that
occurred in the state. Dimensional Media Associates, Inc. v. Optical Products Development Corp., 1999, 42
13.3(8)
New York district court had personal jurisdiction over nonresident engineering firm in New York telecommunication company's action for breach of telecommunications consulting agreement, though agreement was to be
performed in another country; agreement contemplated a continuing business relationship between the parties
and regular contact with company's New York office, and agreement's choice of law provision required agreement to be governed by New York law. Schomann Intern. Corp. v. Northern Wireless, Ltd., 1999, 35 F.Supp.2d
205. Federal Courts
76.30
To establish personal jurisdiction over a nondomiciliary under New York law, New York long arm statute requires a strong nexus between the plaintiff's cause of action and the defendant's in state conduct. Hamilton v.
Garlock, Inc., 1998, 31 F.Supp.2d 351, on reargument 1999 WL 135203, reversed 197 F.3d 58, on remand 96
F.Supp.2d 352, certiorari denied 120 S.Ct. 2691, 530 U.S. 1244, 147 L.Ed.2d 962. Courts
13.3(8)
Application of provision of New York long-arm statute authorizing exercise of personal jurisdiction over nonresident defendant that, in person or through agent, transacts business within the state requires not only that defendant transacts business within state, but also that cause of action arises from in-state transaction such that
there is substantial relationship between in-state activity and transaction out of which cause of action arose.
Page 220
Laborers Local 17 Health and Ben. Fund v. Philip Morris, Inc., 1998, 26 F.Supp.2d 593. Courts
13.3(11)
Although nonresident defendant need not engage in systematic and continuous transactions in New York in order for exercise of jurisdiction over defendant pursuant to New York long-arm statute to be proper, there must
be a direct and substantial relationship between in-state activities and cause of action. Merritt v. Shuttle, Inc.,
13.3(10)
1998, 13 F.Supp.2d 371, remanded 187 F.3d 263, opinion after remand 245 F.3d 182. Courts
Under New York long-arm statute, once it has been determined that defendant transacted business within New
York, plaintiff must also establish that there is substantial nexus between the business transacted and his cause
of action. Levisohn, Lerner, Berger & Langsam v. Medical Taping Systems, Inc., 1998, 10 F.Supp.2d 334.
13.3(11)
Courts
Under section of the New York long-arm statute conferring personal jurisdiction over nondomiciliary who
“transacts any business within the state or contracts anywhere to supply goods or services in the state,” existence
of some articulable nexus between the business transacted and the cause of action sued upon is essential. APC
Commodity Corp. v. Ram Dis Ticaret A.S., 1997, 965 F.Supp. 461. Courts
13.3(11)
Under New York law, claim arises out of business transacted in forum for purposes of long-arm jurisdiction if
there is some articulable nexus between business transacted and cause of action sued upon. Durkin v. Shea,
1997, 957 F.Supp. 1360, stay vacated 1998 WL 74304. Courts
13.3(11)
A claim arises out of foreign party's transaction of business in New York, under New York's long-arm statute
“arising under” requirement, if there is a substantial nexus between transaction of business and cause of action
sued upon. Kahn Lucas Lancaster, Inc. v. Lark Intern. Ltd., 1997, 956 F.Supp. 1131. Courts
13.3(11)
Essential to maintenance of a suit against a nondomiciliary under this section is existence of some articulable
nexus between business transacted and cause of action sued upon. McGowan v. Smith, 1981, 52 N.Y.2d 268,
437 N.Y.S.2d 643, 419 N.E.2d 321. See, also, Ring Sales Co. v. Wakefield Engineering, Inc., 1982, 90 A.D.2d
496, 454 N.Y.S.2d 745. Courts
13.3(11)
Suit against foreign corporations, alleging fraudulent inducement to invest, would be dismissed, on forum non
conveniens grounds, in favor of suit in Germany, five of nine defendants were German residents, there was
strong foreign nexus to action, and Germany provided adequate alternate forum. Wyser-Pratte Management Co.,
Inc. v. Babcock Borsig AG (1 Dept. 2005) 23 A.D.3d 269, 808 N.Y.S.2d 3. Courts
40.11(9)
What is crucial to maintenance of suit against nondomiciliary under long-arm statute is establishing of substantial relationship or nexus between business transacted by defendant in the state and plaintiff's cause of action.
Johnson v. Ward (1 Dept. 2004) 6 A.D.3d 286, 775 N.Y.S.2d 297, certified question answered and reversed 4
13.3(11)
Page 221
Court had personal jurisdiction over defendants, who were California domiciliaries, under New York long-arm
statute; complaint sufficiently alleged a sufficient nexus between New York transaction in which defendants
were actively and purposefully involved and plaintiff's claims arising from that transaction. Giant Group, Ltd. v.
13.3(10)
Arthur Andersen, LLP. (1 Dept. 2003) 2 A.D.3d 189, 770 N.Y.S.2d 291. Courts
New York court had personal jurisdiction over New Jersey-based partnership in action against partnership in
light of nexus between business transacted and cause of action, where plaintiff alleged that members had misappropriated fees attributable to New York clients with whom partnership had contracted to perform services both
before and after its move to New Jersey. Spirgel v. Henry H. Ackerman & Co. (1 Dept. 1995) 221 A.D.2d 167,
13.5(11)
In breach of contract action involving servicing agreement between New York mortgagee and defendantnondomiciliary servicing agent, defendant's nexus with New York was sufficient for New York courts to retain
personal jurisdiction over defendant, inasmuch as New York corporation, retained by defendant, had transacted
business in New York on defendant's behalf by negotiating in New York for permanent mortgage financing stipulating that mortgagee would appoint defendant as servicing agent and defendant itself had transacted business
in New York at crucial stage in contractual relationship between parties by being represented in New York at
closing. East New York Sav. Bank v. Republic Realty Mortg. Corp. (2 Dept. 1978) 61 A.D.2d 1001, 402
13.5(12)
To obtain jurisdiction under provision of New York long-arm statute covering transaction of business in state, a
nexus must exist between defendant, the claim, and the state. Taibleson v. National Center for Continuing Educ.,
13.3(11)
Even if litigation-related activities conducted in New York by alleged trademark infringers, who were New
Hampshire residents involved in state suit against trademark holder, constituted “transacting business” in New
York within meaning of New York long-arm jurisdiction, acts did not bear articulable nexus to trademark action,
as required to support personal jurisdiction in New York. Girl Scouts of U.S. v. Steir, C.A.2 (N.Y.)2004, 102
Fed.Appx. 217, 2004 WL 1406307, Unreported. Trademarks
1558
181. ---- Sufficiency of contacts, cause of action arising from transaction of business
There was no evidence that Florida seller of trademarked “Buccellati” luxury handbags, as defendant in Lanham
Act trademark infringement suit brought in New York federal court, had made a discernable effort to directly or
indirectly serve New York state market, as required to support court's exercise of personal jurisdiction over Florida defendant in trademark infringement suit pursuant to New York long-arm statute. Buccellati Holding Italia
SPA v. Laura Buccellati, LLC, 2013, 935 F.Supp.2d 615. Trademarks
1558
Heating pad manufacturer located in Canada had minimum contacts with New York as required for personal jurisdiction over manufacturer in consumer's action alleging products liability under New York law, where manufacturer did two-thirds and three-quarters of its business indirectly through distributors located in the United
States and directly through online sales. McGlone v. Thermotex, Inc., 2010, 740 F.Supp.2d 381. Federal Courts
Page 222
86
Heating pad manufacturer located in Canada derived substantial revenue from international commerce with the
United States so as to subject it to jurisdiction under New York law for consumer's products liability action,
where between two-thirds and three-quarters of manufacturer's sales were to consumers within the United States.
86
McGlone v. Thermotex, Inc., 2010, 740 F.Supp.2d 381. Federal Courts
Sale of accused product by convenience stores in New York was not sufficient for federal district court in New
York to assert specific personal jurisdiction over Texas corporation under “arising out of” provision of New
York's long-arm statute in patent infringement lawsuit, since sales of accused product by corporation were to another Texas corporation which subsequently distributed accused product to its warehouses throughout country
for sale in stores; although defendant may have been aware that its products were later distributed throughout
United States, such knowledge constituted neither knowledge of products' ultimate destination nor purposeful
availment of protection of New York law. Stephan v. Babysport, LLC, 2007, 499 F.Supp.2d 279. Patents
288(3)
Out-of-state defendant that is not “doing business” in New York may nevertheless be subject to jurisdiction in
New York on lesser showing of contacts with state if cause of action arises from those contacts. Daniel v. American Bd. of Emergency Medicine, 1997, 988 F.Supp. 127, disapproved in later appeal 428 F.3d 408. Courts
13.3(11)
Provisions of New York's long-arm statute granting jurisdiction over foreign defendant who transacts business
within state if cause of action arises from such transactions did not apply to diversity personal injury suit arising
from campground operator's operation of camp in Virgin Islands, where operator was incorporated, despite evidence presented by guest regarding business done by operator in New York. Begley v. Maho Bay Camps, Inc.,
86
Skier's injury at Vermont ski resort did not have sufficient connection with skier's purchase of resort operator's
lift tickets in New York necessary to permit exercise of personal jurisdiction over operator under New York statute permitting exercise of jurisdiction if nondomiciliary transacts business in New York and cause of action
arises out of such transaction. Pellegrino v. Stratton Corp., 1988, 679 F.Supp. 1164. Federal Courts
81
Under “transacts business” provision of New York's long-arm statute, cumulative minor activities that, individually, may be insufficient, may suffice for constitutional purposes as long as the cumulative effect creates a significant presence within the state. O'Brien v. Hackensack University Medical Center (1 Dept. 2003) 305 A.D.2d
199, 760 N.Y.S.2d 425. Courts
13.3(11)
Showing that publisher-representative agreement was negotiated to a substantial degree in State, together with
showing of Florida publisher's additional business contacts in State, such as its annual board meetings, its sales
of magazines and magazine advertising space to and by domiciliaries of State, and its sales in State through its
web site, sufficiently established jurisdiction under long-arm statute; nature and quality of these contacts estab-
Page 223
lished that the publisher was transacting business in State, and there was a connection between the business
transacted and the Illinois representative's claim for breach of agreement. Cybertech Communications Corp. v.
13.5(3)
Quad Intern., Inc. (1 Dept. 1999) 262 A.D.2d 44, 691 N.Y.S.2d 460. Courts
Plaintiff in wrongful death action premised on medical malpractice failed to establish that physician who resided
out of state and who limited his practice to other state despite holding in-state license “transacted business” in
state within meaning of long-arm statute; physician maintained no in-state office, and fact that he regularly received referrals from in-state HMO was not sufficient to show that decedent's treatment arose out of his transacting business in state. CPLR 302(a)(1). McKinney's CPLR 302(a), par. 1. Ingraham v. Carroll (3 Dept. 1997) 235
A.D.2d 778, 652 N.Y.S.2d 361, leave to appeal granted 89 N.Y.2d 812, 657 N.Y.S.2d 405, 679 N.E.2d 644, af13.5(11)
firmed 90 N.Y.2d 592, 665 N.Y.S.2d 10, 687 N.E.2d 1293. Courts
Under this section authorizing exercise of personal jurisdiction over nondomiciliary who “transacts any business
within the state”, test is not whether there are minimal contacts but simply whether defendant transacted any
business within state, from which the cause of action arose. Schneider v. J & C Carpet Co. (1 Dept. 1965) 23
A.D.2d 103, 258 N.Y.S.2d 717. See, also, Davis v. Costa-Gavras, D.C.N.Y.1984, 595 F.Supp. 982; Strasser,
Spiegelberg, Fried and Frank v. Schesinger, 1967, 53 Misc.2d 78, 278 N.Y.S.2d 427, affirmed 28 A.D.2d 828,
282 N.Y.S.2d 650; Roseland v. National Transportation Co., 1966, 52 Misc.2d 921, 276 N.Y.S.2d 827. Courts
13.3(11)
Due process permitted federal district court sitting in New York to exercise personal jurisdiction over nonresident corporation, its majority shareholder, and its employee stock ownership plan (ESOP) in acquisition company's action seeking specific performance of agreement by which company was to have acquired corporation,
given frequent New York contacts of corporation, shareholder, and ESOP, which solicited company's interest in
New York and negotiated and met with company there for several months, chose New York law in commitment
letter and stock purchase agreement, and sent hundreds of telephone, facsimile, and electronic mail communications into New York. AIH Acquisition Corp. LLC v. Alaska Industrial Hardware, Inc., 2003, 2003 WL
21511921, Unreported, vacated and remanded 105 Fed.Appx. 301, 2004 WL 1496864. Constitutional Law
79
182. ---- Single act, cause of action arising from transaction of business
Single “cease and desist” letter sent to New York resident in an attempt to settle legal claims will not be sufficient to invoke personal jurisdiction under provision of New York's long-arm statute conferring jurisdiction over
non-domiciliary who transacts business within state if cause of action arises from non-domiciliary's state transactions. Ehrenfeld v. Mahfouz, C.A.2 (N.Y.)2007, 489 F.3d 542, certified question accepted 9 N.Y.3d 838, 840
N.Y.S.2d 754, 872 N.E.2d 866, certified question answered 9 N.Y.3d 501, 851 N.Y.S.2d 381, 881 N.E.2d 830,
answer to certified question conformed to 518 F.3d 102. Courts
13.3(11)
Single transaction in New York may suffice to invoke personal jurisdiction under provision of New York's longarm statute conferring jurisdiction over non-domiciliary who transacts business within state, if cause of action
arises from non-domiciliary's state transactions, even though non-domiciliary never entered New York, so long
as non-domiciliary's state activities were purposeful and there is a substantial relationship between the transac-
Page 224
tion and the claim asserted. Ehrenfeld v. Mahfouz, C.A.2 (N.Y.)2007, 489 F.3d 542, certified question accepted
9 N.Y.3d 838, 840 N.Y.S.2d 754, 872 N.E.2d 866, certified question answered 9 N.Y.3d 501, 851 N.Y.S.2d 381,
13.3(11)
881 N.E.2d 830, answer to certified question conformed to 518 F.3d 102. Courts
The “arising out of” element of the transacting business provision of New York's long-arm statute requires a
substantial nexus between the business transaction and the claim; accordingly, even a single, purposeful action
directed at New York will be sufficient to confer personal jurisdiction over a defendant not physically present in
New York, so long as that action bears a substantial relationship to the cause of action. Energy Brands Inc. v.
13.3(11)
Spiritual Brands, Inc., 2008, 571 F.Supp.2d 458. Courts
The transacting business provision of New York's long-arm statute is a single-act statute that requires but one
transaction, albeit a purposeful transaction, to confer jurisdiction in New York. Energy Brands Inc. v. Spiritual
13.3(11)
Brands, Inc., 2008, 571 F.Supp.2d 458. Courts
New York's long-arm statute is a “single act statute,” under which proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's activities in New York were purposeful and there is a substantial relationship between the transaction and the claim
asserted. Pearson Education, Inc. v. Shi, 2007, 525 F.Supp.2d 551. Courts
13.3(10)
Proof of one transaction, though the defendant never entered New York, may be sufficient to confer jurisdiction
under the provision of New York's long-arm statute for asserting jurisdiction over a nondomicilliary defendant
who transacts any business within the state so long as the cause of action arises out of the defendant's New York
transaction, the defendant's activities were purposeful and there is a substantial relationship between the transaction and the claim asserted. Stephan v. Babysport, LLC, 2007, 499 F.Supp.2d 279. Courts
13.3(11)
Single transaction will support exercise of personal jurisdiction under New York long-arm statute, but cause of
action must arise out of defendant's contact with New York. Smit v. Isiklar Holding A.S., 2005, 354 F.Supp.2d
260. Courts
13.3(10)
One transaction in New York is sufficient to invoke jurisdiction under the “transacting business” provision of
New York long-arm statute, even though defendant never enters New York, as long as defendant's activities in
New York were purposeful and there is substantial relationship between transaction and the claim asserted.
Newbro v. Freed, 2004, 337 F.Supp.2d 428. Courts
13.3(11)
A single transaction might be sufficient to fulfill “transaction of business” requirement of New York's long-arm
statute so long as the relevant cause of action also arises out of that transaction; a claim “arises out of a defendant's transaction of business” in New York when there exists a substantial nexus between the business transacted
and the cause of action sued upon. Mende v. Milestone Technology, Inc., 2003, 269 F.Supp.2d 246. Courts
13.3(11)
Proof of one transaction in New York is sufficient to invoke jurisdiction under New York's long-arm statute,
Page 225
even though defendant never entered New York, so long as defendant's activities in New York were purposeful
and there is substantial relationship between the transaction and the claim asserted. Clarendon Nat. Ins. Co. v.
13.3(10)
Lan, 2001, 152 F.Supp.2d 506. Courts
Single transaction of business is sufficient to give rise to personal jurisdiction over nonresident, under New
York long-arm statute, even when defendant never enters state, if claim arises out of transaction. Citigroup Inc.
13.3(11)
v. City Holding Co., 2000, 97 F.Supp.2d 549. Courts
Proof of one transaction in New York, giving rise to cause of action, is sufficient to confer personal jurisdiction
over nonresident under statute allowing for jurisdiction based on suit-related activities in state, even if defendant
never enters state, so long as defendant's activities in New York were purposeful and there was substantial relationship between transaction and claim. Kirkpatrick v. Rays Group, 1999, 71 F.Supp.2d 204. Federal Courts
76.10
Although a single purposeful act in New York can suffice to confer jurisdiction in New York over a claim
arising out of that act, the court need not find that any one act gives rise to jurisdiction; instead, the court must
consider the quantity and composite quality of the defendant's actions in the aggregate. Gleason Works v. Klingelnberg-Oerlikon Geartec Vertriebs-GmbH, 1999, 58 F.Supp.2d 47. Courts
13.3(8)
Single transaction of business is sufficient to give rise to jurisdiction over nonresident defendant under New
York long-arm statute, even where defendant never enters the state, if claim arises out of that transaction. Yurman Designs, Inc. v. A.R. Morris Jewelers, L.L.C., 1999, 41 F.Supp.2d 453, reconsideration denied 60
13.3(11)
Under New York law, a defendant's single transaction of business in New York is sufficient to give rise to personal jurisdiction over defendant, even where the defendant never enters the state, if the claim arises out of the
transaction. Hamilton v. Garlock, Inc., 1998, 31 F.Supp.2d 351, on reargument 1999 WL 135203, reversed 197
F.3d 58, on remand 96 F.Supp.2d 352, certiorari denied 120 S.Ct. 2691, 530 U.S. 1244, 147 L.Ed.2d 962. Courts
13.3(11)
Under New York's long-arm statute, proof of one transaction in New York is sufficient to invoke personal jurisdiction, even though defendant never enters New York, so long as defendant's activities were purposeful and
there is substantial relationship between transaction and claim asserted. Champion Motor Group, Inc. v. Visone
Corvette of Massachusetts, Inc., 1998, 992 F.Supp. 203. Courts
13.3(10)
New York's long-arm statute is single act statute, empowering court to exercise specific jurisdiction over nondomiciliary on basis of one transaction in the forum so long as defendant's activities in New York were purposeful and there is substantial relationship between the transaction and claim asserted. Packer v. TDI Systems, Inc.,
1997, 959 F.Supp. 192. Courts
13.3(10)
Under New York long-arm statute's “transacting business” test for exercise of personal jurisdiction over non-
Page 226
domiciliary, one meeting in New York, and follow-up letters to that meeting, would be of sufficient quality to
find that foreign residents, were “transacting business” in New York, if meeting in New York had some substantial or critical relationship to matters which formed basis for litigation; if, however, New York meeting concerned matters which were outside scope of transaction in question, jurisdiction under “transacting business”
statute would be improper. Manhattan Life Ins. Co. v. A.J. Stratton Syndicate (No. 782), 1990, 731 F.Supp. 587.
76.15
Federal Courts
Single transaction in New York out of which cause of action has arisen may satisfy requirement of transaction of
business of long-arm act. Mattgo Enterprises, Inc. v. Aaron, 1974, 374 F.Supp. 20. See, also, Krause v. Hauser,
D.C.N.Y.1967, 272 F.Supp. 549; Uniroyal, Inc. v. Heller, D.C.N.Y.1974, 65 F.R.D. 83; Manow Intern. Corp. v.
76.10
High Point Chair, Inc., 1982, 91 A.D.2d 546, 457 N.Y.S.2d 21. Federal Courts
Proof of one transaction in New York is sufficient to invoke personal jurisdiction over non-domiciliary under
New York's long-arm statute, even though the defendant never enters New York, so long as the defendant's
activities there were purposeful and there is a substantial relationship between the transaction and the claim asserted. Farkas v. Farkas (2 Dept. 2007) 36 A.D.3d 852, 830 N.Y.S.2d 220. Courts
13.3(10)
Proof of one transaction in New York is sufficient to invoke jurisdiction under the transaction of business provision of the long-arm statute, even though the defendant never physically enters New York, so long as the defendant's activities in New York were purposeful, and there is a substantial relationship between the transaction
and the claim asserted. Opticare Acquisition Corp. v. Castillo (2 Dept. 2005) 25 A.D.3d 238, 806 N.Y.S.2d 84.
Courts
13.3(11)
New York's long arm statute is “single act statute,” and proof of one business transaction in New York is sufficient to invoke jurisdiction, even though out-of-state defendant never entered New York, so long as its activities
in state were purposeful and there is substantial relationship between transaction and claim asserted. Atwal v.
Atwal (4 Dept. 2005) 24 A.D.3d 1297, 807 N.Y.S.2d 776. Courts
13.3(11)
Long-arm statute permitting New York court to exercise personal jurisdiction over nondomiciliary if nondomiciliary conducts purposeful activities within the state and claim against nondomiciliary involves transaction
bearing substantial relationship to those activities is a single act statute, and proof of one transaction in New
York is sufficient to invoke jurisdiction, even if defendant never enters New York, as long as the requisite purposeful activities and connection between the activities and transaction are shown. Deutsche Bank Securities,
Inc. v. Montana Bd. of Investments (1 Dept. 2005) 21 A.D.3d 90, 797 N.Y.S.2d 439, affirmed 7 N.Y.3d 65, 818
13.3(10)
Regarding the transaction-of-business predicate for personal jurisdiction under New York's long-arm statute, the
connection between the activity and the state must be purposeful; a single transaction will suffice, as long as
there is a substantial relationship between that transaction and the alleged injury. O'Brien v. Hackensack University Medical Center (1 Dept. 2003) 305 A.D.2d 199, 760 N.Y.S.2d 425. Courts
13.3(11)
Page 227
Although long-arm statute is “single act” statute, requiring proof of only one transaction in New York to invoke
jurisdiction, there must be substantial relationship between transaction and claim asserted. Edelman v. Tait13.3(10)
tinger, S.A. (1 Dept. 2002) 298 A.D.2d 301, 751 N.Y.S.2d 171. Courts
Single action by buyer, an out-of-state corporation, of sending its trucks into state and taking delivery of veal in
state was sufficient to constitute an in-state business transaction, giving state court personal jurisdiction over
buyer in seller's action against buyer for recovery of purchase price of goods sold to out-of-state corporation.
Empire Beef Co., Inc. v. Meyners-Robinson Co., Inc. (4 Dept. 1998) 248 A.D.2d 1012, 669 N.Y.S.2d 998.
13.5(3)
Courts
Statute governing court's jurisdiction is a single act statute and proof of one transaction in state is sufficient to
invoke jurisdiction so long as defendant's activities here were purposeful and there is a substantial relationship
between transaction and claim asserted. Empire Beef Co., Inc. v. Meyners-Robinson Co., Inc. (4 Dept. 1998)
13.3(10)
248 A.D.2d 1012, 669 N.Y.S.2d 998. Courts
Proof of one transaction in New York is sufficient to confer jurisdiction over foreign party as long as activities
in question were purposeful and there was substantial relationship between transaction and claim asserted.
Staten Island Hosp. v. Alliance Brokerage Corp. (2 Dept. 1990) 166 A.D.2d 574, 560 N.Y.S.2d 859. Courts
13.3(10)
Although casual physical presence of nonresident defendant will not suffice to establish jurisdiction, a single
transaction in New York, out of which plaintiff's cause of action arises, may satisfy this section so long as the
transaction was a purposeful one. Northern Structures, Inc. v. Union Bank (4 Dept. 1977) 57 A.D.2d 360, 394
N.Y.S.2d 964, amended 58 A.D.2d 1042, 396 N.Y.S.2d 1021, appeal granted 43 N.Y.2d 646, 402 N.Y.S.2d
1028, 373 N.E.2d 997. Courts
13.3(10)
183. ---- Communications into state, cause of action arising from transaction of business
Investors failed to sufficiently allege Nevada corporation's independent auditor, which was incorporated and had
sole office in Utah, transacted business in New York, as would give rise to personal jurisdiction under long-arm
statute in action alleging negligent misrepresentation in connection with auditor's issuance of unqualified audit
report on corporation's financial statements; auditor provided comfort letters that granted corporation's New
York underwriter permission to use report in planned offerings, but some letters were sent to corporation in
China or Nevada, while those sent to underwriter in New York were solicited from auditor outside New York,
and auditor's work on report and letters was performed outside New York. Miller Inv. Trust v. Xiangchi Chen,
2013, 2013 WL 4780063. Federal Courts
79
Internet sales of accused product bore substantial nexus to allegations of trade dress infringement and unfair
competition against non-domiciliary competitor and its principal, as required for federal court in New York to
exercise personal jurisdiction over them under transacting business provision of New York's long-arm statute in
action under Lanham Act, since those sales were potentially diverted from it as result of consumer confusion and
accused product sold in New York bore trade dress at issue. Energy Brands Inc. v. Spiritual Brands, Inc., 2008,
Page 228
571 F.Supp.2d 458. Trademarks
1560
Defendant's unspecified calls and e-mails to plaintiff in New York did not provide a sufficient basis for personal
jurisdiction under the transacting business provision of the long-arm statute. Gordon v. Credno (1 Dept. 2013)
13.3(11)
102 A.D.3d 584, 960 N.Y.S.2d 360. Courts
With the evolution of technology, physical presence alone should not determine whether one has purposely
availed itself of a state's rights and benefits for jurisdictional purposes under the long-arm statute. Fischbarg v.
Doucet (1 Dept. 2007) 38 A.D.3d 270, 832 N.Y.S.2d 164, affirmed 9 N.Y.3d 375, 849 N.Y.S.2d 501, 880
13.3(4)
N.E.2d 22. Courts
184. ---- Contracts, cause of action arising from transaction of business
New York buyer of parts for gas turbine assembly made prima facie showing of court's personal jurisdiction
over Italian seller, under the “contracting to supply goods” prong of New York's long-arm statute, for purposes
of breach of contract claim, by alleging that pursuant to the parties' agreement, seller was to provide turbine
blades to buyer in New York, seller in fact shipped blades to buyer there, and that buyer's breach of contract
claim arose from seller's agreement to ship blades of a certain number and quality to New York, which it failed
to do. Allied Dynamics Corp. v. Kennametal, Inc., 2013, 2013 WL 4735698. Federal Courts
86
Computer services franchising company's claims against former franchisee, including breach of franchise agreement, claims under the Lanham Act, defamation, and interference with prospective contractual relations, did not
arise out of franchisee's activities in connection with agreement, so such activities, including franchisee's visit to
New York for training, could not form basis for exercise of personal jurisdiction under “transacting business”
prong of New York long-arm statute. Rescuecom Corp. v. Hyams, 2006, 477 F.Supp.2d 522. Federal Courts
76.35
Breach of contract plaintiff's claims were sufficiently related to business transacted in state by non-resident corporate defendant to satisfy New York long-arm statute; defendant's in-state business consisted of maintaining
parties' on-going contractual relationship. Matera v. Native Eyewear, Inc., 2005, 355 F.Supp.2d 680. Federal
Courts
79
Requirement for personal jurisdiction, under New York long-arm statute, that breach of contract claim arise
from business transactions in New York, was satisfied in suit against Florida producer of software products,
claiming breach of contract under which New York provider of financial services was to locate and introduce
business partner; New York activities alleged to constitute transacting business related to formation of that contract. HD Brous & Co., Inc. v. Synthesys Secure Technologies, Inc., 2002, 229 F.Supp.2d 191. Federal Courts
79
Fact that Oregon farm operations contracted to supply goods in New York was not sufficient to subject them to
jurisdiction there in agricultural cooperative's declaratory judgment action arising out of certain contractual relationships; cooperative did not show how any of the claims at issue related, in other than the most tangential fash-
Page 229
ion, to farm operations' contracting to supply goods that eventually found their way into New York. Pro-Fac Co76.30
op., Inc. v. Alpha Nursery, Inc., 2002, 205 F.Supp.2d 90. Federal Courts
Prior distributorship agreement between New York distributor and Swiss medical products manufacturer could
serve as basis for federal court to exert personal jurisdiction over manufacturer through New York long arm statute; although parties entered into modification or novation of distributorship agreement and present dispute
arose from new agreement, dispute arose from parties' long term business relationship as reflected in both distributorship arrangement and new agreement. Ulster Scientific, Inc. v. Guest Elchrom Scientific AG, 2001, 181
86
New York court's exercise of personal jurisdiction over Italian manufacturer and its owner in distributor's action
alleging breach of contract did not violate due process, where claim arose out of breach of contract with New
York company to sell overcoats in New York. Mario Valente Collezioni, Ltd. v. Confezioni Semeraro Paolo,
86
S.R.L., 2001, 174 F.Supp.2d 170. Constitutional Law
Under New York long-arm statute, federal district court sitting in New York lacked personal jurisdiction over
nonresident corporate officer of Texas corporation in contract action brought by Pennsylvania corporation, even
though certain contracts signed by parties provided that New York law would apply; allegations against officer
did not relate to documents signed in New York or to financing arrangements allegedly negotiated in New York,
in any direct manner, and officer was not bound by documents signed in New York, except ownership agreement, which did not in any way give rise to the action. Packer v. TDI Systems, Inc., 1997, 959 F.Supp. 192. Federal Courts
76.30
Under New York law, federal court sitting in New York had jurisdiction over action brought against nondomiciliary corporations by New York lighting company for breach of fiduciary duty, breach of contract, tortious interference with contractual relations, tortious interference with respective economic advantage, conversion and
fraud, where agents of nondomiciliary corporations physically entered New York and engaged in discussions
that were essential to formation of contract at heart of action. National Cathode Corp. v. Mexus Co., 1994, 855
F.Supp. 644.
District court lacked jurisdiction under “transacting business” provision of New York's long-arm statute
[N.Y.McKinney's CPLR 302(a), par. 1] over California resident being sued by former employer for breach of
noncompetition agreement where there was no showing that California resident's visits to New York or business
conducted during those visits were related in substantial or proximate manner to alleged violations of noncompetition agreement. Martin E. Segal Co. v. Barton, 1985, 612 F.Supp. 935. Federal Courts
76.15
This section requires that cause of action sued upon arise from contracts specified as basis for jurisdiction. Dunn
v. Southern Charters, Inc., 1981, 506 F.Supp. 564. Federal Courts
76.30
Jurisdiction under this section was not available where cause of action against foreign furniture companies by
their former sales representative did not arise out of transaction of business by foreign companies in New York.
Page 230
Cohen v. Vaughan Bassett Furniture Co., Inc., 1980, 495 F.Supp. 849. Federal Courts
80
Inasmuch as cause of action must arise out of act in New York for purposes of long-arm jurisdiction, such act
must be related to contract in suit, and not to earlier contracts. Mattgo Enterprises, Inc. v. Aaron, 1974, 374
76.30
Activities of New York music publisher relating to consulting agreement with non-resident promoter, including
publishing, administering, and exploiting compositions of songwriters referred to publisher by promoter, could
not be attributed to promoter for purposes of establishing personal jurisdiction over promoter under transactingbusiness provision of New York's long-arm-statute. Royalty Network, Inc. v. Harris (1 Dept. 2012) 95 A.D.3d
13.3(11)
775, 947 N.Y.S.2d 53. Courts
Illinois customer of New York manufacturer did not avail itself of benefits of New York, did not have sufficient
contacts with it, and reasonably could not expect to defend its actions there in manufacturer's breach of contract
action, by sending sample tarpaulin into New York, by agreeing to be bound by “Worth Street Rules,” and by
having Internet website, where cause of action did not arise from website, “Worth Street Rules,” which were
rules of custom and usage in industry, had only evolved in New York but spread nationwide, and customer
shipped sample to show manufacturer what customer needed; bona fide choice of law provision also could not
confer jurisdiction. Spencer Laminating Corp. v. Denby, 2004, 5 Misc.3d 200, 783 N.Y.S.2d 220. Courts
13.5(7); Courts
25
185. ---- Fraud or misrepresentation, cause of action arising from transaction of business
New York buyer of parts for gas turbine assembly made prima facie showing of personal jurisdiction over Italian seller, under the “transacting business” prong of New York's long-arm statute, for purposes of claims for negligent misrepresentation, fraud, and replevin by alleging that its claims arose from seller's New York business
activities; allegations included that seller made false representations about its ability to produce turbine blades in
order to entice buyer to enter into numerous, expensive agreements for the blades, that seller falsified assessment reports analyzing quality of blades to induce buyer to accept delivery of the defective product in New
York, that seller traveled to New York to persuade buyer to purchase blades, and that once agreements broke
down, seller failed to return manufacturing tools buyer had supplied to seller, all of which resulted in harm to
buyer. Allied Dynamics Corp. v. Kennametal, Inc., 2013, 2013 WL 4735698. Federal Courts
86
Clinical trial participant's allegations that Virginia biopharmaceutical research company engaged in persistent
course of conduct in New York by way of its clinical trials and other research conducted within state, made misrepresentations while in New York to participant in clinical trial for investigational drug regarding its support
for her compassionate use application were sufficient to establish prima facie case that company was subject to
specific personal jurisdiction in New York in participant's action challenging company's refusal to support her
application for “compassionate use” exception allowing her to resume treatment with drug. Cacchillo v. Insmed
96
In fraudulent transfer and unjust enrichment action arising out of investment broker's use of one investor's funds
Page 231
to cover other investors' losses in Ponzi-like fashion, after these other investors had complained about anomalies
in their accounts and traveled to New York to meet with broker, these other investors' two-year history of maintaining accounts with New York investment broker, their substantial and ongoing communications with broker
in New York, and their face-to-face meeting with broker provided sufficient basis for district court to exercise
personal jurisdiction over these other investors under the “transacting business” provision of New York longarm statute, especially given substantial nexus that existed between these other investors' New York transactions, to voice concerns about their accounts, and transfers that formed basis of plaintiff-investor's claims. New76.15
bro v. Freed, 2004, 337 F.Supp.2d 428. Federal Courts
Specific personal jurisdiction did not exist over mother of judgment debtor, who was resident and citizen of
Switzerland, on creditors' New York law fraudulent conveyance claims; fraudulent conveyance claims did not
arise out of any of the jurisdictional contacts listed in complaint and creditors' allegations regarding the conveyances did not suggest that mother had any contacts with New York in connection with the claims. First Capital
Asset Management, Inc. v. Brickellbush, Inc., 2002, 218 F.Supp.2d 369, on reconsideration 219 F.Supp.2d 576,
86
affirmed 385 F.3d 159. Federal Courts
Claim arising from alleged fraudulent misrepresentations made by New Mexico corporation and its president in
New York to induce Delaware corporation to form a joint venture would not be dismissed on basis of lack of
personal jurisdiction where New Mexico corporation was already subject to jurisdiction based upon its transaction of business in New York and claim arose from such transaction. Rates Technology, Inc. v. Diorio, 1986,
79
Fraud claims asserted by borrower from United States bank against three foreign companies which owned
United States bank did not arise out of the companies' only New York business transactions, namely, their attendance at United States bank board meetings there, and therefore district court lacked jurisdiction over foreign
companies under New York's long-arm statute, N.Y.McKinney's CPLR 302(a), par. 1. Nordic Bank PLC v.
Trend Group, Ltd., 1985, 619 F.Supp. 542. Federal Courts
86
Cause of action for fraud against Austrian manufacturers who had allegedly originally agreed in Paris to ship
leather goods to American distributor f.o.b. European ports and not sell to competitors and wrote confirmatory
letter from Austria to New York but in fact sold to competitors and whose sales to New York distributor never
amounted to more than 2 percent of total sales, did not arise out of transaction of “business within state” and
New York court could not exercise personal jurisdiction over manufacturers. Kramer v. Vogl, 1966, 17 N.Y.2d
27, 267 N.Y.S.2d 900, 215 N.E.2d 159. Courts
13.5(10)
186. ---- Particular cases, cause of action arising from transaction of business
Trademark infringement action brought by New York manufacturer of pet fencing system against its former
Alabama dealers “arose out of” dealers' business transactions with the manufacturer, as required for exercise of
personal jurisdiction under New York's long-arm statute, although alleged trademark infringement occurred in
Alabama after dealers' agreement with the manufacturer expired. Sunward Electronics, Inc. v. McDonald, C.A.2
(N.Y.)2004, 362 F.3d 17, 69 U.S.P.Q.2d 2002. Trademarks
1558
Page 232
Where technical representatives had received intensive three-month training course in New York, representatives had been assigned to sales territories outside of New York and had been given customer control cards containing information representatives promised to keep confidential, had agreed not to compete for two years following termination of employment and had been in continuous contact with New York by telephone with respect
to business, representatives, who entered employment of competitor and against whom suit was brought in New
York federal court to enjoin disclosure of information, had transacted business in New York within meaning of
this section and cause of action arose from such activity. American Eutectic Welding Alloys Sales Co. v. Dytron
76.35
Alloys Corp., C.A.2 (N.Y.)1971, 439 F.2d 428. Federal Courts
Owners of goods allegedly lost in shipment from London to New York could maintain action in New York
against foreign corporate freight forwarder, which took delivery of goods for shipment to New York, which consolidated goods with other goods in containers that forwarder sealed, which designated warehouse and customs
broker for delivery purposes, which delivered goods to shipping line and shipped them under bill of lading issued by it as forwarder, thus effecting transportation rather than merely arranging for it, as cause of action arose
from “transaction of business” within state of New York within meaning of subd. (a), par. 1 of this section governing personal jurisdiction over nondomiciliary. Aquascutum of London, Inc. v. S.S. American Champion,
83
C.A.2 (N.Y.)1970, 426 F.2d 205. Federal Courts
Where Iowa nonprofit corporation, which engaged in examining doctors and which had its principal place of
business in Philadelphia, gave written examinations in New York but graded examinations in Philadelphia and
administered oral examinations, which differed in scope and concept from written examinations in Philadelphia
and St. Louis, New York physician's action for certification as consultant in internal medicine arose out of
events that took place only in St. Louis or Philadelphia and did not arise out of “transaction of business” in New
York. Fontanetta v. American Bd. of Internal Medicine, C.A.2 (N.Y.)1970, 421 F.2d 355. Federal Courts
79
United States citizen could not maintain diversity action in New York federal court under particular provision of
this section against United Arab Republic airline corporation, which transacted business in New York, for damages arising out of airline crash in the Sudanese Republic where tickets were ordered through another foreign
airline in the United States and confirmed through airline's office in Egypt, because the alleged negligence of
airline and consequent injury to passenger did not arise from airline's transaction of business in New York. Eck
v. United Arab Airlines, Inc., C.A.2 (N.Y.)1966, 360 F.2d 804. Federal Courts
86
District Court lacked personal jurisdiction over managing director of law firm and sole owner of related business
entity, in action brought by group of companies that attempted to start a credit card business in China against
law firm and business entities and individuals related to the firm, all located in China, that they had retained for
legal and other professional services in preparation for their credit card business, where those individuals did not
engage in any transaction or tortious act within or affecting New York, and no corporate defendant of which individuals acted as agents transacted business in New York. TAGC Management, LLC v. Lehman, 2012, 842
86
New York client's causes of action for breach of contract, unfair business practices, tortious interference with
Page 233
contract, professional malpractice, and defamation against Florida law firm arising from firm's representation of
client in personal injury action in Florida did not arise from business transacted in New York, for purposes of
New York's long-arm statute, where firm took no action in New York except in connection with one deposition.
Sea Tow Services Intern., Inc. v. St. Paul Fire & Marine Ins. Co., 2011, 779 F.Supp.2d 319. Federal Courts
85
Articulable nexus did not exist between copyright infringement claim of non-party Indian recording company's
designated American administrator and Virginia-based website operator's registration of domain name with New
York company, and thus claim did not arise from transaction of business in New York, as required to establish
jurisdiction under New York's long-arm statute; registration of domain name in New York was merely coincidental to website allowing visitors to play and download music produced and owned by recording company. Roy79
alty Network Inc. v. Dishant.com, LLC, 2009, 638 F.Supp.2d 410. Copyrights And Intellectual Property
Sufficient nexus did not exist between Portuguese insurance company's contacts with New York and personal injury action brought by United States government employee who was struck by vehicle driven by member of
United States military, a domiciliary of New York, on military base in Portugal, so as to subject insurer to specific jurisdiction in New York under statute allowing district court to exercise specific jurisdiction over nondomiciliary who transacts any business within state or contracts anywhere to supply goods or services in state.
Bohn v. Bartels, 2007, 620 F.Supp.2d 418. Federal Courts
86
Non-domiciliary competitor and its principal purposely availed themselves of privilege of conducting activities
in New York, as required for federal court in New York to exercise personal jurisdiction over them under transacting business provision of New York's long-arm statute in action under Lanham Act alleging trade dress infringement and unfair competition, where defendants directly sold their accused product to New Yorkers on at
least dozen occasions using active commercial Internet website that required exchange of billing, shipping, and
contact information; although defendants changed their website after complaint had been filed to remove any
elements that supported finding of personal jurisdiction, such change was inconsequential. Energy Brands Inc. v.
Spiritual Brands, Inc., 2008, 571 F.Supp.2d 458. Trademarks
1560
Arbitrators' allegedly arbitrary and capricious determinations and allegedly manifest disregard of the law, which
occurred entirely in Florida, did not permit federal court to exercise personal jurisdiction over limited liability
corporation (LLC) organized under the laws of the Turks and Caicos, pursuant to provision of New York's longarm statute governing jurisdiction over defendants transacting any business within state in connection with
claims arising from those business transactions. Sole Resorts, S.A. de C.V. v. Allure Resorts Management, LLC,
2005, 397 F.Supp.2d 426, vacated and remanded 450 F.3d 100, on remand 2007 WL 646288. Federal Courts
86
Exercise of personal jurisdiction over out-of-state interexchange telecommunications carriers (IXCs) under New
York long-arm statute was reasonable in suit by competitive local exchange carriers (CLECs), and thus consonant with due process, even if only 4 of 12 CLECs were New York residents and majority of relief sought was
based on unpaid carrier access charges in Pennsylvania, where several of CLECs and IXCs had principal places
of business in New York, plaintiffs' records and witnesses were located in New York, and New York had in-
Page 234
terest in seeing that CLECs received damages. New York Access Billing, LLC v. ATX Communications, Inc.,
79
Secretary of Defense, as respondent in habeas proceeding brought on behalf of prisoner held in Navy brig as
“enemy combatant” because of his alleged terrorist ties, was subject to personal jurisdiction in New York under
“transacts business” provision of that state's long-arm statute; Secretary was directed by the President to take
custody of prisoner, and agents of Defense Department came into district and did so. Padilla ex rel. Newman v.
Bush, 2002, 233 F.Supp.2d 564, opinion adhered to on reconsideration 243 F.Supp.2d 42, motion to certify appeal granted 256 F.Supp.2d 218, remanded 352 F.3d 695, certiorari granted 124 S.Ct. 1353, 540 U.S. 1173, 157
638
L.Ed.2d 1226, reversed and remanded 124 S.Ct. 2711, 542 U.S. 426, 159 L.Ed.2d 513. Habeas Corpus
Judgment creditors' Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy claim against Swiss
uncle of judgment debtor did not arise from or directly relate to uncle's transaction of business in New York
state, and thus New York's long-arm statute authorizing the exercise of personal jurisdiction over nondomiciliaries for tort and contract claims arising from transaction of business in state did not provide personal jurisdiction
over uncle. First Capital Asset Management, Inc. v. Brickellbush, Inc., 2002, 218 F.Supp.2d 369, on reconsideration 219 F.Supp.2d 576, affirmed 385 F.3d 159. Federal Courts
86
In tourist's negligence action against corporate Hawaii hotel operator, even if operator's act of placing an advertisement in New York publication was sufficient to constitute the transaction of business, tourist was not subject
to personal jurisdiction under New York long-arm statute; tourist failed to show the requisite nexus between the
transaction of booking hotel room in New York and his cause of action for negligence that occurred at Hawaiian
hotel, and no legal basis was established to find that the injury occurred in New York. Hinsch v. Outrigger Hotels Hawaii, 2001, 153 F.Supp.2d 209. Federal Courts
81
Corporate president's New York contacts, in visiting New York offices of law firm that agreed to represent corporation on intellectual property law issues in order to negotiate retainer agreement, and in making numerous
telephone calls and other communications to firm in New York regarding performance of retainer agreement,
were sufficiently related to law firm's claims against president, for allegedly diverting proceeds of settlement in
attempt to hinder or defeat law firm's right to fee under this same retainer agreement, to establish prima facie
case of personal jurisdiction over president, on a transacting-business theory, under New York long-arm statute.
Levisohn, Lerner, Berger & Langsam v. Medical Taping Systems, Inc., 1998, 10 F.Supp.2d 334. Federal Courts
76.5
For purpose of establishing personal jurisdiction under New York's long-arm statute, evidence was sufficient to
show that claim for legal malpractice arose out of business transacted in forum, in light of plaintiff's affidavit alleging that defendants were partners in law firm's New York office, that partner met with chairman of client's
board of directors in New York to discuss litigation out of which claim arose, that partner initiated and received
phone calls and correspondence at New York office concerning representation of client, that client's bills were
generated out of New York office, and that partner attended meeting of client's board of directors in New York.
Durkin v. Shea, 1997, 957 F.Supp. 1360, stay vacated 1998 WL 74304. Courts
13.5(11)
Page 235
Cause of action brought against trucking company and driver stemming from accident which occurred in
Pennsylvania while truck which was transporting load from Ohio to Pennsylvania did not arise out of business
activity in New York, and thus, New York long-arm statute did not provide basis for personal jurisdiction over
defendants, even if truck driver had as plaintiff alleged traveled in New York while transporting load. Rounds v.
13.5(5)
Rea, 1996, 947 F.Supp. 78. Courts
United States' claim against Canadian corporation alleging that corporation violated union/government's consent
decree by refusing to allow campaigning in corporation's employee parking lot was wholly unrelated to any
business that corporation allegedly conducted in state and, thus, New York's long-arm statute provided no basis
for exercising jurisdiction over corporation. U.S. v. International Broth. of Teamsters, 1996, 945 F.Supp. 609.
86
Federal Courts
There was no basis for district court to exercise personal jurisdiction over nondomiciliary corporate and individual defendants under New York law based on transaction of business within New York, absent demonstration
of any nexus between business transacted by any of the defendants in New York and their alleged interference
with agreements between plaintiff's sister Hong Kong corporation and third-party suppliers. Diesel Systems,
Ltd. v. Yip Shing Diesel Engineering Co., Ltd., 1994, 861 F.Supp. 179. Federal Courts
76.15; Federal
Courts
79
Because Attorney General, in official capacity, clearly transacted business in New York, personal jurisdiction
over Attorney General could be obtained by extraterritorial service of process in case involving alien awaiting
deportation proceedings at deportation center in Louisiana following completion of criminal sentence; nonresident who transacted business in New York could be served with process outside state of New York on cause of
action that did not have any nexus with New York. Nwankwo v. Reno, 1993, 828 F.Supp. 171. Habeas Corpus
677
Massachusetts corporation's advertising in directory published in New York, its assembly of three motor generator sets for New Jersey corporation and its billing of customer in New York for diesel generator were not related to dispute involving motor generator sets used in New York hospital, and therefore were irrelevant to claim
for jurisdiction over Massachusetts corporation for having transacted business within New York or contracted to
supply goods or services within New York. Eugene Iovine, Inc. v. Rudox Engine and Equipment Co., 1992, 786
81; Federal Courts
84
New York resident's injury at foreign corporation's out-of-state ski resort was not sufficiently related to any promotional and sales activity of corporation in New York to justify exercise of jurisdiction over foreign corporation under statute allowing jurisdiction over corporations transacting business within state in presence of direct
relationship between cause of action and in-state contacts. Lane v. Vacation Charters, Ltd., 1990, 750 F.Supp.
120. Federal Courts
81
Jurisdiction of federal district court sitting in New York over association of medical colleges that was incorporated in Illinois and based in the District of Columbia could not be founded on this section where, at best, the association's contacts with New York were limited to mailing applications to the state and having its medical col-
Page 236
lege admissions test administered in New York and where, even assuming that such limited contacts constituted
the transaction of business or contracting to supply goods or services in New York, it was clear that the cause of
action asserted by the plaintiff, a medical student whose transfer applications to medical schools in the United
States were rejected, did not arise from those contacts. Selman v. Harvard Medical School, 1980, 494 F.Supp.
84
603, affirmed 636 F.2d 1204. Federal Courts
Fact that defendant, a Saudi Arabian citizen who obtained default judgment against New York author in libel
lawsuit filed in England, previously owned two New York City condominiums, had been indicted by a New
York County grand jury in connection with an investigation into his activities as a bank executive, and was a defendant in several pending civil actions arising out of the September 11 terrorist attacks was insufficient to find
that defendant “transacted business” in New York, as required for New York court to have personal jurisdiction
over defendant in author's action seeking declaration that English judgment was unenforceable in the United
States; author's action did not arise out of such contacts by defendant, but out of defendant's activities related to
the English judgment. Ehrenfeld v. Bin Mahfouz, 2007, 9 N.Y.3d 501, 851 N.Y.S.2d 381, 881 N.E.2d 830, an13.3(11)
swer to certified question conformed to 518 F.3d 102. Courts
New York electricity wholesaler's action against foreign wholesaler, based on foreign wholesaler's cancellation
of contract with one of New York wholesaler's suppliers in Midwest, did not arise from a New York transaction,
as required for exercise of personal jurisdiction under long-arm statute's “transacts any business” provision,
where foreign wholesaler had no contract to deliver power to New York wholesaler. Niagara Mohawk Energy
Marketing, Inc. v. Entergy Power Marketing Corp. (4 Dept. 2000) 270 A.D.2d 872, 706 N.Y.S.2d 794. Courts
13.5(3)
Ship repairer's contacts with New York were insufficient to support personal jurisdiction under New York longarm statute in Jones Act suit brought by worker injured while repairing vessel at repairer's facility in Virginia;
although repairer did contract with New York corporations to repair vessel, plaintiff's alleged injury and tort action based on it did not arise directly out of the contract, even if contract were considered transaction occurring
in New York. Holness v. Maritime Overseas Corp. (1 Dept. 1998) 251 A.D.2d 220, 676 N.Y.S.2d 540. Courts
13.5(4)
Plaintiff's cause of action against foreign corporation under employment agreement which required plaintiff to
“create, prepare and disseminate information and written material contacting security analysts, fund managers,
portfolio managers, editors, trade press and others” on defendant's behalf arose from business transactions within New York for and in behalf of defendant, and hence court did not lack personal jurisdiction over defendant
since plaintiff's services were akin to professional legal services and plaintiff was the agent and representative of
the defendant and not a principal nor an independent contractor. John De Nigris Associates, Inc. v. Pacific Air
Transport Intern., Inc. (1 Dept. 1972) 38 A.D.2d 363, 329 N.Y.S.2d 939. Courts
13.5(11)
Title insurer's special proceeding for pre-action discovery, seeking to depose Florida prisoner to preserve information potentially relevant to title claims asserted against the insurer, was not a “cause of action” that could
provide basis for long-arm jurisdiction over the prisoner. In re Fidelity Nat. Title Ins. Co., 2011, 34 Misc.3d 508,
13.2; Pretrial Procedure
24
Page 237
Even if Delaware corporation with principal place of business in Texas transacted business in New York, New
York resident's claims against corporation alleging breach of contract and breach of fiduciary duty did not arise
out of any New York transactions, and therefore personal jurisdiction did not exist over claims under New
York's long-arm statute, given that contract was not negotiated or executed in New York, alleged breaches occurred when corporation refused to complete real estate transaction in Massachusetts, and all investments contemplated by parties under contract were located outside New York, and that allegations that resident communicated with corporation from New York and had conversation concerning contract with corporation's principal
in New York did not establish substantial nexus between such communications and claims. Barrett v. Tema Development (1988), Inc., C.A.2 (N.Y.)2007, 251 Fed.Appx. 698, 2007 WL 3088317, Unreported. Federal Courts
79
Austrian corporation's use of wholesalers to market its ski resort facilities to English-speaking people was insufficient to confer personal jurisdiction over the corporation under New York's long-arm statute in action arising
from fatal ski train fire at the resort; plaintiffs failed to allege that such sales practices rose to the level of
“transacting business” in New York either in terms of frequency or revenue and a connection between the victims of the ski train fire and the discounts. In re Ski Train Fire in Kaprun, Austria on November 11, 2000, 2003,
81
2003 WL 22909153, Unreported. Federal Courts
186.5. ---- Receipt of income, cause of action arising from transaction of business, transaction of business
Florida law firm did not do business or receive substantial income from outside of Florida, and thus was not subject to personal jurisdiction in New York pursuant to New York long-arm statute provision providing for personal jurisdiction over person who commits tort outside of New York, effects of which are felt within New York, in
New York client's action alleging breach of contract, unfair business practices, tortious interference with contract, professional malpractice, and defamation arising from firm's representation of client in personal injury action in Florida. Sea Tow Services Intern., Inc. v. St. Paul Fire & Marine Ins. Co., 2011, 779 F.Supp.2d 319. Federal Courts
85
187. ---- Burden of proof, cause of action arising from transaction of business
Allegations in employee's complaint established that Kentucky nonprofit corporation transacted business in New
York, within meaning of New York's long-arm statute, as required to defeat corporation's motion to dismiss for
lack of personal jurisdiction in breach of employment contract action in Federal District Court in New York,
even though contract was executed in Kentucky and corporation did not enter New York, where complaint made
allegations, including that corporation advertised for executive director position in New York, negotiated employee's employment contract in New York, via telephone and mail, that employee, while in New York, signed
memorandum of understanding (MOU) containing material terms of contract and transmitted it to corporation,
and that employee traveled to New York as executive director to hire and hired personnel in New York, on behalf of corporation. Sanderson v. Horse Cave Theatre 76, 2012, 881 F.Supp.2d 493. Federal Courts
79
In cause of action by investors to recover from bank and asset management company that had allegedly
sponsored creation of structured investment vehicle (SIV) solely as means, unknown to investors, of moving
“toxic assets” off bank's balance sheet, investors did not satisfy burden of showing that isolated visits to New
Page 238
York by individual German employees that they sought to include as defendants bore requisite relationship with
allegedly fraudulent investment scheme that was at heart of investors' complaint, as required for court to exercise specific personal jurisdiction over these employees under New York long-arm statute; investors offered
only speculation, rather than evidence, that visits concerned the SIV, let alone that they were directly related to
fraud underlying investors' complaint. King County, Wash. v. IKB Deutsche Industriebank, AG, 2011, 769
86
To establish personal jurisdiction over a non-domiciliary under New York law, the plaintiff must demonstrate
that the defendant engaged in a purposeful business transaction in or directed to New York and that such contacts with the state had a substantial relationship to the claim asserted in the underlying litigation. Pearson Edu13.3(11)
cation, Inc. v. Shi, 2007, 525 F.Supp.2d 551. Courts
To invoke this section providing that a court may exercise jurisdiction over any nondomiciliary who transacts
any business within the state, a plaintiff must demonstrate that defendant transacted business within state and
that cause of action arose out of said activities. Wichita Federal Sav. and Loan Ass'n v. Comark, 1984, 586
F.Supp. 940, affirmed 810 F.2d 1161. See, also, Columbia Pictures Industries, Inc. v. Schneider, D.C.N.Y.1977,
435 F.Supp. 742, affirmed 573 F.Supp. 1288. Federal Courts
76.10
Hedge fund's outside auditor established that there was no basis to conclude that it should have reasonably expected to defend its actions in New York, so as to support personal jurisdiction over it, by establishing that it
had no presence in New York, that it performed the audit of the hedge fund in the Cayman Islands, pursuant to
engagement letters executed in, and sent from, the Cayman Islands, and that there were only limited e-mails
within anyone in New York affiliated in any way with the fund. CRT Investments, Ltd. v. BDO Seidman, LLP
13.5(12)
188. Purposeful acts, transaction of business--In general
A defendant need not be physically present in New York to transact business there within the meaning of the
section of New York's long-arm statute providing that a court may exercise personal jurisdiction over any nondomiciliary who in person or through an agent transacts any business within the state, as long as he engages in
purposeful activities or volitional acts through which he avails himself of the privilege of conducting activities
within the state, thus invoking the benefits and protections of its laws. Chloe v. Queen Bee of Beverly Hills,
LLC, C.A.2 (N.Y.)2010, 616 F.3d 158, 96 U.S.P.Q.2d 1349, on remand 2011 WL 3678802. Courts
13.3(11)
Publishers' allegations that internet entrepreneurs, without permission, sold foreign-produced copyrighted textbooks to New York customers through website constituted an adequate showing of entrepreneurs' purposeful
contacts with New York, as required for court to exercise personal jurisdiction over defendants pursuant to New
York's long-arm statute. Pearson Educ., Inc. v. Kumar, 2010, 721 F.Supp.2d 166, entered 2010 WL 2230574, affirmed 452 Fed.Appx. 11, 2011 WL 4348010, vacated 133 S.Ct. 1631, 185 L.Ed.2d 614, on remand 523
Fed.Appx. 16, 2013 WL 3064832. Copyrights and Intellectual Property
79
Page 239
Consignee “transacted business” within forum state, for purposes of court's exercise of personal jurisdiction over
consignee in action brought by diamond consignor, pursuant to New York long-arm statute; consignee purposefully approached consignor at jewelry show and sought to create relationship with it, knowing that consignor
was New York corporation. House of Diamonds v. Borgioni, LLC, 2010, 737 F.Supp.2d 162. Federal Courts
76.25
Purposeful availment, which is the “overriding criterion” necessary to establish personal jurisdiction under
“transacts any business” provision of New York's long-arm statute, requires more than random, fortuitous, or attenuated contacts; instead, purposeful activities are those with which the defendant, through volitional acts,
avails itself of the privilege of conducting activities within New York, thus invoking the benefits and protections
13.3(11)
of its laws. Royalty Network Inc. v. Dishant.com, LLC, 2009, 638 F.Supp.2d 410. Courts
For defendant to “transact business” in New York, so as to be subject to personal jurisdiction under state's longarm statute, defendant must purposefully avail herself of the privilege of conducting activities within New York,
thus invoking the benefits and protections of its laws. Grasso v. Bakko, 2008, 570 F.Supp.2d 392. Courts
13.3(11)
A nondomiciliary transacts business within state under New York long-arm statute when he purposefully avails
himself of the privilege of conducting activities within New York, thus invoking the benefits and protections of
its laws. Maranga v. Vira, 2005, 386 F.Supp.2d 299. Courts
13.3(11)
Under New York state law, process may be served on nondomiciliary who transacts any business within state
even if defendant never enters New York, so long as defendant's activities in New York are purposeful and
transaction is related to claim asserted. Mojica v. Reno, 1997, 970 F.Supp. 130, affirmed in part , dismissed in
part 157 F.3d 106, certiorari denied 119 S.Ct. 1141, 526 U.S. 1004, 143 L.Ed.2d 209, question certified 172 F.3d
39, certified question denied 92 N.Y.2d 455, 682 N.Y.S.2d 663, 705 N.E.2d 655, opinion after certified question
declined 175 F.3d 287. Courts
13.3(11)
Under New York long-arm statute, defendant who transacts business in New York will be subject to personal
jurisdiction in New York if acts were purposeful and there is substantial relationship between those acts and
plaintiff's claim. Semi Conductor Materials, Inc. v. Citibank Intern. PLC, 1997, 969 F.Supp. 243. Courts
13.3(11)
In order to find personal jurisdiction over defendant under New York's long-arm statute, plaintiffs must show:
that he engaged in purposeful activity in the state, thereby invoking benefits and protections of New York law;
and that the in-state activities are related to allegations in complaint. Packer v. TDI Systems, Inc., 1997, 959
F.Supp. 192. Courts
13.3(8)
Transacting business test under New York long-arm statute does not require regular and systematic activities,
but requires purposeful activity within state giving rise to at least some minimum contacts between forum and
party over whom it is asserting jurisdiction. Chemco Intern. Leasing, Inc. v. Meridian Engineering, Inc.,
Page 240
D.C.N.Y.1984, 590 F.Supp. 539. See, also, Klein v. E. W. Reynolds Co., Inc., D.C.N.Y.1973, 355 F.Supp. 886.
76.15
Federal Courts
The “transaction of business” clause of this section requires some purposeful activity in New York state in relation to the contract, albeit preliminary or subsequent to its execution; it requires that defendants have voluntarily
elected to invoke protection of the laws of New York. Franklin Nat. Bank v. Krakow, D.C.D.C.1969, 295
F.Supp. 910. See, also, China Union Lines, Ltd. v. American Marine Underwriters, Inc., D.C.N.Y.1978, 454
76.30
Overriding criterion necessary to establish “transaction of business” within meaning of long-arm statute is some
act by which defendant purposefully avails itself of privilege of conducting activities within New York. Ehrenfeld v. Bin Mahfouz, 2007, 9 N.Y.3d 501, 851 N.Y.S.2d 381, 881 N.E.2d 830, answer to certified question con13.3(11)
formed to 518 F.3d 102. Courts
Purposeful activities supporting exercise of personal jurisdiction under the “transacted business” provision of
the long-arm statute are those with which a defendant, through volitional acts, avails itself of the privilege of
conducting activities within the forum State, thus invoking the privileges and benefits of its laws. Fischbarg v.
Doucet, 2007, 9 N.Y.3d 375, 849 N.Y.S.2d 501, 880 N.E.2d 22. Courts
13.3(11)
Not all purposeful activity constitutes a “transaction of business” within the meaning of the long-arm statute.
Fischbarg v. Doucet, 2007, 9 N.Y.3d 375, 849 N.Y.S.2d 501, 880 N.E.2d 22. Courts
13.3(11)
New York long-arm statute permits the exercise of jurisdiction over a nondomiciliary defendant who transacts
any business within the state, whether or not defendant is physically present, as long as the business activity is
sufficiently purposeful. Alan Lupton Associates, Inc. v. Northeast Plastics, Inc. (4 Dept. 1984) 105 A.D.2d 3,
482 N.Y.S.2d 647. See, also, Loria & Weinhaus, Inc. v. H. R. Kaminsky & Sons, Inc., D.C.N.Y.1978, 80 F.R.D.
494; Cato Show Printing Co., Inc. v. Lee, 1981, 84 A.D.2d 947, 446 N.Y.S.2d 710; Perlman v. Martin, 1972, 70
Misc.2d 169, 332 N.Y.S.2d 360; Lawrenz v. Lawrenz, 1971, 65 Misc.2d 627, 318 N.Y.S.2d 610. Courts
13.3(11)
Nondomiciliary is subject to jurisdiction of state courts under this section if it can be established that nondomiciliary has engaged in some purposeful activity within state and there is a substantial relationship between activity and cause of action sued upon. Amodeo v. Star Mfg. Co. (3 Dept. 1982) 88 A.D.2d 1081, 452 N.Y.S.2d 724.
See, also, Faherty v. Fender, D.C.N.Y. 1983, 572 F.Supp. 142; Inkelas v. Inkelas, 1968, 58 Misc.2d 340, 295
13.3(8)
Where purposeful transactions of business by nonresidents have taken place in New York, it may not be said
that subjecting them to state's jurisdiction is an unnecessary inhibition on freedom of speech or press. Legros v.
Irving (1 Dept. 1971) 38 A.D.2d 53, 327 N.Y.S.2d 371, appeal dismissed 30 N.Y.2d 653, 331 N.Y.S.2d 673, 282
N.E.2d 626. Constitutional Law
2085
Page 241
Though normally defendants should be subject to suit in jurisdiction of their residence or where their principal
business activity is conducted, “long-arm” service was available to obtain jurisdiction over nondomiciliary thirdparty defendants if the business transacted by them in New York was “purposeful activity” which gave rise to
cause of action sued on, even though they were domiciliaries of the state when the predicate business was trans72
acted. Havlicek v. Bach, 1976, 86 Misc.2d 1084, 385 N.Y.S.2d 750. Process
189. ---- Due process, purposeful acts, transaction of business
Exercise of long-arm jurisdiction over New York pet fencing system manufacturer's former Alabama dealers in
manufacturer's trademark infringement action comported with traditional notions of fair play and substantial
justice, as required by due process; dealers' contacts with New York were continuous and substantial, and in no
way random, fortuitous or attenuated. Sunward Electronics, Inc. v. McDonald, C.A.2 (N.Y.)2004, 362 F.3d 17,
3965(4); Trademarks
1558
69 U.S.P.Q.2d 2002. Constitutional Law
In alleged infringers' action seeking declaration that patent claims for human genes and gene mutations were invalid for violating the Patent Act and the First and Fourteenth Amendments, exercise of specific personal jurisdiction over out-of-state directors of patent holder, a university research foundation, in their capacities as state
officials under New York's long-arm statute satisfied requirements of due process; directors entered into exclusive license agreement permitting the marketing of patent holder's products in New York, and thus directors purposefully availed themselves of privilege of conducting business New York. Association For Molecular Pathology v. U.S. Patent and Trademark Office, 2009, 669 F.Supp.2d 365, affirmed in part , reversed in part 653 F.3d
1329, 99 U.S.P.Q.2d 1398, rehearing denied , vacated 132 S.Ct. 1794, 182 L.Ed.2d 613, on remand 467
Fed.Appx. 890, 2012 WL 1500104, affirmed 689 F.3d 1303, 103 U.S.P.Q.2d 1681, certiorari granted in part 133
S.Ct. 694, 184 L.Ed.2d 496, affirmed in part , reversed in part 133 S.Ct. 2107, 186 L.Ed.2d 124, 106 U.S.P.Q.2d
1972. Constitutional Law
3965(10); Patents
114.6
Exercise of personal jurisdiction over manufacturer of cutting machine under New York's long arm statute comported with Due Process requirements of the Federal Constitution in products liability action brought by employee who sustained injuries while operating a “rebar” cutting machine; Court previously determined that manufacturer had purposefully availed itself of doing business in New York and further noted, without deciding, that
factors for assessing reasonableness weighed heavily in favor of exercising jurisdiction over manufacturer. Justus v. Toyo Kensetsu Kohki Co., Ltd., 2002, 228 F.Supp.2d 215. Constitutional Law
3965(4); Federal
Courts
79
The foreseeability requirement of the due process requirement that a defendant have minimum contacts with a
foreign state is itself restricted by the purposeful affiliation requirement; there must be some act by which the
defendant purposefully avails itself of the privilege of conducting activities within the foreign state, thus invoking the benefits and protection of its laws. Boris v. Bock Water Heaters, Inc., 2004, 3 Misc.3d 835, 775
N.Y.S.2d 452. Constitutional Law
3964
190. ---- Single act, purposeful acts, transaction of business
Only a purposeful act in New York related to the transaction giving rise to the complaint is required to support a
Page 242
finding of jurisdiction. Cooper, Robertson & Partners, LLP v. Vail, 2001, 143 F.Supp.2d 367. Courts
13.3(10)
Under New York law, a cease and desist letter alone is insufficient to confer jurisdiction over the sender under
provision of long-arm statute permitting jurisdiction over person who transacts business in the state; there must
be some act by which sender purposefully avails himself of the privilege of conducting activities in forum state,
thus invoking the benefits and protections of its laws. Fort Knox Music, Inc. v. Baptiste, 2001, 139 F.Supp.2d
13.3(11)
505, 59 U.S.P.Q.2d 1067, appeal dismissed 257 F.3d 108, 59 U.S.P.Q.2d 1538. Courts
Proof of one transaction in New York is sufficient to invoke personal jurisdiction over a non-domiciliary defendant, even though the defendant never enters New York, so long as the defendant's activities in New York
were purposeful and there is a substantial relationship between the transaction and the claim asserted. Vander13.3(10)
mark v. Jotomo Corp. (4 Dept. 2007) 42 A.D.3d 931, 839 N.Y.S.2d 670. Courts
191. ---- Benefit and protection of laws, purposeful acts, transaction of business
For purposes of provision of New York's long-arm statute conferring jurisdiction over non-domiciliary who
transacts business within state, if cause of action arises from non-domiciliary's state transactions, a nondomiciliary “transacts business” in New York by fully availing himself or herself of the privilege of conducting
activities within the state, thus invoking the benefits and protections of its laws. Ehrenfeld v. Mahfouz, C.A.2
(N.Y.)2007, 489 F.3d 542, certified question accepted 9 N.Y.3d 838, 840 N.Y.S.2d 754, 872 N.E.2d 866, certified question answered 9 N.Y.3d 501, 851 N.Y.S.2d 381, 881 N.E.2d 830, answer to certified question conformed to 518 F.3d 102. Courts
13.3(11)
Defendant transacts business in New York, within meaning of that state's long-arm statute, when he
“purposefully avails” himself of privilege of conducting business there, thus invoking benefits and protections of
New York law. Credit Lyonnais Securities (USA), Inc. v. Alcantara, C.A.2 (N.Y.)1999, 183 F.3d 151. Courts
13.3(11)
A non-domiciliary transacts business in New York, as required for specific personal jurisdiction under New
York's long-arm statute, by purposefully availing him or herself of the privilege of conducting activities within
the state, thus invoking the benefits and protections of its laws. Duravest, Inc. v. Viscardi, A.G., 2008, 581
13.3(11)
Several factors must be weighed to determine whether non-domiciliary defendant purposefully availed herself of
the benefits and protections of New York laws, as required for personal jurisdiction under New York long-arm
statute's “transacting business” prong, including (1) whether defendant has an ongoing contractual relationship
with a New York corporation, (2) whether the contract was negotiated or executed in New York and whether,
after executing a contract with a New York business, defendant has visited New York for the purpose of meeting
with parties to the contract regarding the relationship, (3) what the choice-of-law clause is in any such contract,
and (4) whether the contract requires franchisees to send notices and payments into the forum state or subjects
them to supervision by the corporation in the forum state. Grasso v. Bakko, 2008, 570 F.Supp.2d 392. Courts
Page 243
13.3(11)
Non-domiciliary “transacts business” within state, within meaning of New York long-arm statute allowing for
exercise of specific personal jurisdiction over non-domiciliary who transacts any business in state, when he purposefully avails himself of the privilege of conducting activities within New York, thus invoking the benefits
and protections of its laws. Beatie and Osborn LLP v. Patriot Scientific Corp., 2006, 431 F.Supp.2d 367. Courts
13.3(11)
A nondomiciliary “transacts business” under New York's long-arm statute when he purposefully avails himself
of the privilege of conducting activities within New York, thus invoking the benefits and protections of its laws;
a plaintiff also must show that the claim against the defendant arose from that business activity. Boehner v.
76.15
Heise, 2006, 410 F.Supp.2d 228. Federal Courts
“Transacting business” provision of New York long-arm statute establishes basis for personal jurisdiction over
nonresidents who have purposefully availed themselves of privilege of conducting activities within New York
and thereby invoked benefits and protections of its laws. Newbro v. Freed, 2004, 337 F.Supp.2d 428. Courts
13.3(11)
For court to obtain personal jurisdiction over a party under “transaction of business” prong of New York's long
arm statute, the party need not be physically present in state at time of service, instead statute extends jurisdiction of New York state courts to any nonresident who has purposely availed himself of privilege of conducting
activities within New York and thereby invoked benefits and protections of its laws; single transaction would be
sufficient to fulfill requirement, so long as relevant cause of action also arises from that transaction. Traver v.
Officine Meccaniche Toshci SpA, 2002, 233 F.Supp.2d 404. Courts
13.3(11)
Nondomiciliary “transacts business” within state, within meaning of New York long-arm statute, when he purposefully avails himself of privilege of conducting activities within New York, thus invoking benefits and protections of its laws. Levisohn, Lerner, Berger & Langsam v. Medical Taping Systems, Inc., 1998, 10 F.Supp.2d
334. Courts
13.3(11)
Nondomiciliaries “transact business” in New York, and thus may come within jurisdiction of New York court,
when they purposely avail themselves of privilege of conducting activities within New York, thus invoking benefits and protections of its laws. Longwood Resources Corp. v. C.M. Exploration Co., Inc., 1997, 988 F.Supp.
750. Courts
13.3(11)
Nondomiciliary “transacts business” within meaning of New York long arm statute when he purposefully avails
himself of the privilege of conducting activities within New York, thus invoking the benefits and protections of
its laws. APC Commodity Corp. v. Ram Dis Ticaret A.S., 1997, 965 F.Supp. 461. Courts
13.3(11)
Nondomiciliary “transacts business” in New York for purposes of long-arm statute if he purposefully avails
Page 244
himself of privilege of conducting activities within state, thus invoking benefits and protections of its laws. Dur13.3(11)
kin v. Shea, 1997, 957 F.Supp. 1360, stay vacated 1998 WL 74304. Courts
Crucial element of “transaction of business” in New York within this section is whether or not defendant intended to avail himself of the privilege of transacting his affairs in that state, thereby invoking the protection of its
laws. Impex Metals Corp. v. Oremet Chemical Corp., 1971, 333 F.Supp. 771. See, also, Arrow Trading Co., Inc.
v. Sanyei Corp. (Hong Kong), Ltd., D.C.N.Y.1983, 576 F.Supp. 67; Arcata Graphics Corp. v. Murrays Jewelers
& Distributors, Inc., D.C.N.Y.1974, 384 F.Supp. 469; Weiss v. Greenburg, Traurig, Askew, Hoffman, Lipoff,
Quentel & Wolff, P.A.(State Report Title: Weiss v. Greenberg, Traurig, Askew, Hoffman, Lipoff, Quintel &
Wolff, P.A.), 1981, 85 A.D.2d 861, 446 N.Y.S.2d 447; Ellis v. Smith Transfer Corp., 1965, 24 A.D.2d 871, 264
76.15
N.Y.S.2d 414. Federal Courts
“Transacting business” prerequisite in long-arm statute is satisfied if it is shown that nondomiciliary purposefully availed itself of privilege of conducting activities within New York, thus invoking benefits and protections
of its laws. Johnson v. Ward (1 Dept. 2004) 6 A.D.3d 286, 775 N.Y.S.2d 297, certified question answered and
reversed 4 N.Y.3d 516, 797 N.Y.S.2d 33, 829 N.E.2d 1201. Courts
13.3(11)
In determining whether defendant has transacted business within meaning of long-arm statute, courts look to totality of defendant's activities within state, to decide if he has transacted business in such way that it constitutes
purposeful activity, which is defined as some act by which defendant purposefully avails himself of privilege of
conducting activities within forum state, thus invoking benefits and protections of its laws. Gary Null & Associates, Inc. v. Phillips, 2010, 29 Misc.3d 245, 906 N.Y.S.2d 449. Courts
13.3(11)
Non-resident defendant, who sold automobile engine to plaintiff via internet auction service, did not purposefully invoke the benefits and protections of New York law, as required for court to have jurisdiction over defendant, and thus summoning defendant into a New York court on plaintiff's breach of contract action would
contravene traditional notions of fair play and substantial justice; defendant merely created a username, posted
an item for sale on internet auction service, and shipped the item to the highest bidder, regardless of the state in
which the bidder happened to reside. Sayeedi v. Walser, 2007, 15 Misc.3d 621, 835 N.Y.S.2d 840. Constitutional Law
3965(4); Courts
13.5(3)
Individual defendants could not avail themselves of privilege of conducting activities within state, obtain the benefits of its laws, and then escape their liabilities by leaving state and, hence, being nonresidents and having
transacted business within state, were amenable to state jurisdiction under this section in action on contract executed and performed in state. Leblanc v. Kahn, 1979, 100 Misc.2d 299, 418 N.Y.S.2d 841. Courts
13.5(3)
192. ---- Communications into state, purposeful acts, transaction of business
New Jersey repairer of leased barges did not transact business in New York, within meaning of New York longarm statute, even if it exchanged communications with New York lessee and lessee's New York insurance
agents; insurance agents had contacted repairer and requested that it submit bid, barges were brought to re-
Page 245
pairer's New Jersey facility, and all repair work was done there. Bay Fireworks, Inc. v. Frenkel & Co., Inc.,
76.15
Telephone calls and mailings can confer personal jurisdiction under transacting business provision of New York
long-arm statute only if defendants conducted these activities in such manner as to project themselves into New
York in order to purposely avail themselves of benefits of doing business in New York, and finding that defendants purposely availed themselves of benefits of New York may not be inferred from mere acts of mailing and
telephoning plaintiff. National Telephone Directory Consultants, Inc. v. Bellsouth Advertising & Pub. Corp.,
13.3(11)
1998, 25 F.Supp.2d 192. Courts
Telephone communications, such as faxes, do not provide basis for personal jurisdiction under New York statute, unless defendant projected himself by those means into New York in such manner that he purposefully
availed himself of benefits and protections of its laws. Semi Conductor Materials, Inc. v. Citibank Intern. PLC,
13.3(4)
1997, 969 F.Supp. 243. Courts
Although single purposeful act in New York can be sufficient to support jurisdiction under New York's long-arm
statute, the nature and quality of the New York contacts must be examined to determine their significance, and
contacts by way of telephone calls, mail, and facsimile are usually insufficient to confer personal jurisdiction.
Kahn Lucas Lancaster, Inc. v. Lark Intern. Ltd., 1997, 956 F.Supp. 1131. Courts
13.3(4)
Where affidavit filed by Louisiana corporation stated that only connection that Louisiana corporation had with
New York regarding events which gave rise to conversion suit was exchange of telephone calls, mail, and telexes with debtor corporation involving sales contract, Louisiana corporation could not be said to have availed itself of privilege of conducting activities within New York, even though sales contract signed by Louisiana corporation and debtor provided for arbitration of disputes in New York. Sterling Nat. Bank & Trust Co. of New
York v. Southern Scrap Export Co., 1979, 468 F.Supp. 1100. Federal Courts
81
Communications with New York mortgagors, by resident of Virginia, which were ministerial in nature as to the
New York mortgagors, did not constitute purposeful activity in New York, substantially related to conversion
lawsuit brought against Virginia resident related to mortgages; thus, such communications were insufficient to
support long-arm jurisdiction in New York. Farkas v. Farkas (2 Dept. 2007) 36 A.D.3d 852, 830 N.Y.S.2d 220.
Courts
13.5(12)
Colorado ranch's lone act of soliciting a horseback rider to visit the ranch with the hope that he might write a favorable article for publication in a travel magazine, plus the mailing of a press kit to the rider in New York, did
not qualify as a purposeful act performed in New York, so as to constitute the transaction of business in the
State, and the court therefor lacked long-arm jurisdiction over the ranch in the rider's action to recover damages
for personal injuries sustained in a fall from a horse. Carey v. C Lazy U Ranch, Inc. (2 Dept. 2003) 304 A.D.2d
602, 758 N.Y.S.2d 371. Courts
13.5(4)
Florida advertising firm's sending tapes of advertisements on behalf of its clients into New York for broadcast
Page 246
from New York television network's studio was purposeful transaction of business in New York, for purposes of
“transacting business” section of New York's long-arm statute. Courtroom Television Network v. Focus Media,
13.4(3)
Nonresident defendants, residents and domiciles of Italy or Switzerland, did not transact business in New York,
as required under the New York long-arm statute for exercise of personal jurisdiction over them, in action
brought by part-owner of soccer team, alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and various common law claims arising out of his investments and subsequent fraudulent
ouster as a part-owner, where defendants' alleged New York contacts, which consisted principally of correspondence, telephone calls, and participation in telephone and video conferences, was not made with intent to
project defendants into New York and avail themselves of its laws; rather, such alleged contacts were intended
to facilitate a business deal in Italy. Pincione v. D'Alfonso, C.A.2 (N.Y.)2012, 506 Fed.Appx. 22, 2012 WL
86
6621370, Unreported. Federal Courts
Under this section, nonresident's purchase of goods from resident solely by placing telephone orders or through
mail does not constitute purposeful acts sufficient to sustain jurisdiction. Sol Tool Co. v. American Tool & Die
Co., 1972, 293 A.2d 583. See, also, Gildenhorn v. Lum's Inc., D.C.N.Y.1971, 335 F.Supp. 329, reversed 478
F.2d 817; Dulman v. Potomac Baking Co., Inc., 1981, 85 A.D.2d 676, 445 N.Y.S.2d 509; M. Katz & Son Billiard Products, Inc. v. G. Correale & Sons, Inc., 1966, 26 A.D.2d 52, 270 N.Y.S.2d 672, affirmed 20 N.Y.2d
903, 285 N.Y.S.2d 871, 232 N.E.2d 864. Courts
13.4(3)
193. ---- Particular cases, purposeful acts, transaction of business
Foreign sovereign's issuance of negotiable debt instruments denominated in United States dollars and payable in
New York, and its appointment of a financial agent in that city, was purposeful availment of the privilege of
conducting activities within the United States, which satisfied the “minimum contacts” requirements of the due
process clause. Republic of Argentina v. Weltover, Inc., U.S.N.Y.1992, 112 S.Ct. 2160, 504 U.S. 607, 119
L.Ed.2d 394. Constitutional Law
3965(11); International Law
10.30
Under New York law, the minimum contact required for exercising personal jurisdiction is characterized as being some act by which the defendant purposefully avails itself of the privilege of conducting activities within the
forum State, thus invoking the benefits and protections of its laws; however, New York's long-arm statute does
not confer jurisdiction in every case where it is constitutionally permissible. Sanderson v. Horse Cave Theatre
76, 2012, 881 F.Supp.2d 493. Courts
13.3(4)
Exercise of personal jurisdiction over nonresident attorney, in investors' action for damages sustained through
fraudulent schemes, based upon tortious acts committed in New York by co-conspirators would not violate due
process; by joining conspiracy with knowledge that overt acts had taken place in New York, attorney purposefully availed himself of privilege of conducting activities within state. Cleft of the Rock Foundation v. Wilson,
1998, 992 F.Supp. 574. Constitutional Law
76.25
Fact that English bank sent several faxes to plaintiff in New York and that bank accepted payment of plaintiff's
Page 247
confirmation fee under letter of credit in bank's account with New York financial institution did not establish
sufficient degree of purposeful activity in New York to support finding that bank “transacted business” there, as
required to assert personal jurisdiction over bank in action for bank's alleged failure to confirm letter of credit,
even if bank knew that letter of credit would accrue to benefit of plaintiff in New York. Semi Conductor Materi86
als, Inc. v. Citibank Intern. PLC, 1997, 969 F.Supp. 243. Federal Courts
Attempts of international union officials to collect dues from New York local and their holding of evidentiary
hearing in New York to enforce their management policies against local official constituted “purposeful activity” in the state of New York within meaning of the “transacts business” clause of the New York long-arm statute. Madden v. International Ass'n of Heat and Frost Insulators and Asbestos Workers, 1995, 889 F.Supp. 707.
76.15
Federal Courts
Idaho corporation was “transacting business” in New York as used within meaning of New York long-arm statute where it contracted with either New York residents to move their household goods out of state, or with outof-state residents to ship their goods into New York; although Idaho corporation transacted business in New
York on irregular basis, it purposefully directed its business activity in New York, thereby invoking benefits and
protections of New York law. Crouch v. Atlas Van Lines, Inc., 1993, 834 F.Supp. 596. Federal Courts
79
Under New York law, foreign bottler of water “transacted business” in New York and therefore district court
had personal jurisdiction over bottler in action brought by distributor alleging promissory estoppel, quantum
meruit, and unjust enrichment; even though bottler relinquished control of water to importer in foreign country,
bottler engaged in purposeful activity aimed at developing its market in New York by shipping water to New
York through importer, applying for permits for sale of water in New York, attending trade shows in New York,
and meeting with distributor in New York, and distributor's claims arose out of bottler's attempt to create longlasting business relationship with distributor through these activities. GB Marketing USA Inc. v. Gerolsteiner
Brunnen GmbH & Co., 1991, 782 F.Supp. 763, 21 U.S.P.Q.2d 1982. Federal Courts
86
Florida domiciliaries' contacts with New York in connection with establishing loan relationship with bank for
Delaware corporation, in which they owned 50% interest, were sufficient purposeful activity in New York to
constitute transaction of business within meaning of New York statute; Florida domiciliaries sought out bank in
New York to obtain financing, provided bank with reports of their personal financial status, signed personal
guaranties expressly covered by New York law, and among other things, were personally authorized to draw
from line of credit established in New York. Bankers Trust Co. v. Nordheimer, 1990, 746 F.Supp. 363. Federal
Courts
76.15
Conduct of out-of-state employees of provider of Internet advertising services did not amount to purposeful invocation of privileges of conducting business in New York, as would permit exercise of personal jurisdiction
over them in business owner's action for breach of contract and fraud, given the nature of employees' work on
owner's Internet advertising campaign and owner's limited contact with them via telephone and e-mail. Collins
v. Yodle, Inc. (3 Dept. 2013) 105 A.D.3d 1178, 963 N.Y.S.2d 742, leave to appeal denied 21 N.Y.3d 860, 971
N.Y.S.2d 251, 993 N.E.2d 1273. Courts
13.3(11); Courts
13.3(12)
Page 248
Although New Jersey owner of automobile restoration company was not physically present in New York and
had only passive Web site, owner's purposeful acts of transacting business in New York were sufficient so that
exercise of personal jurisdiction, under New York's long-arm statute, did not offend traditional notions of due
process, fair play, and substantial justice, in automobile owner's suit claiming breach of contract, deceptive and
misleading practices, and fraud, arising from alleged agreement to restore vintage automobile, since restoration
company owner initiated numerous telephone, fax, e-mail, and other written communications with automobile
owner in New York, employed passive Web site for commercial access, and purposefully engaged in business
transactions that created continuing relationship with automobile owner and had substantial relationship to
3965(10);
claims. Grimaldi v. Guinn (2 Dept. 2010) 72 A.D.3d 37, 895 N.Y.S.2d 156. Constitutional Law
Courts
13.5(3); Courts
13.5(10)
Colorado-based attorney's actions, including negotiating contract with New York executive search agency by
telephone, fax, and e-mail, and faxing agreement to agency's New York office, did not amount to purposeful invocation of privileges of conducting business in New York, precluding court's personal jurisdiction under longarm statute in agency's breach of contract action; attorney did not specify that any applicant was to come from
New York, and, indeed, person he hired was already based in Colorado. Executive Life Ltd. v. Silverman (2
13.5(11)
Court had long-arm jurisdiction over foreign corporations in plaintiffs' action to enforce judgment lien from
English court proceedings related to alleged Ponzi scheme, where companies engaged in purposeful activity by
investing in New York hotel business, obtaining mortgage on New York property, and participating in alleged
fraudulent conveyance of New York property interest through New York co-conspirators to aid other defendants
in hindering legitimate creditors. CIBC Mellon Trust Co. v. HSBC Guyerzeller Bank AG (1 Dept. 2008) 56
A.D.3d 307, 867 N.Y.S.2d 74. Courts
13.5(12)
Requiring out-of-state clients to defend fee dispute with attorney in New York did not offend traditional notions
of fair play and substantial justice, as would support exercise of personal jurisdiction over clients, where clients
purposely availed themselves of the services of a New York attorney, and clients should have anticipated being
called into a New York court to litigate fee dispute with attorney. Fischbarg v. Doucet (1 Dept. 2007) 38 A.D.3d
270, 832 N.Y.S.2d 164, affirmed 9 N.Y.3d 375, 849 N.Y.S.2d 501, 880 N.E.2d 22. Constitutional Law
3965(5); Courts
13.5(11)
Two meetings attended by Colorado-based employee at employer's New York office did not amount to purposeful activity such as would render it reasonable to require employee to conduct her defense in New York in employer's suit seeking declaration of the parties' rights under various agreements; employee's attendance at two
meetings, where the profit sharing and stock purchase agreements giving rise to two of causes of action were
discussed, was required of her as part of her duties, and her brief presence in state on each of those occasions
thus was not the result of her own free choice. Seneca Ins. Co., Inc. v. Boss (1 Dept. 1998) 256 A.D.2d 175, 681
13.5(3)
New York's long-arm statute did not confer in personam jurisdiction over defendants who did not engage in purposeful activity in New York in connection with matter in suit; defendants did no business in New York, but
Page 249
sold, distributed, and delivered their products exclusively within the State of Texas. Schultz v. Hyman (4 Dept.
13.5(7)
1994) 201 A.D.2d 956, 607 N.Y.S.2d 824. Courts
Supreme Court did not have personal jurisdiction over nonresident defendant in action to recover damages for
breach of employment contract and malfeasance in his capacity as corporate officer occurring in Indiana; record
failed to establish any substantial or meaningful connection between alleged malfeasance committed by defendant in Indiana and State of New York or that defendant had purposely availed himself of privilege of conducting
activities in State of New York thus invoking benefits and protections of laws. Riblet Products Corp. v. Nagy (2
13.5(3); Courts
13.5(4)
Foreign corporation that purposefully shipped into New York machinery from which it derived approximately
8% of its total sales knowingly invoked benefits and protections of laws of New York and could, consistent with
due process, be subjected to New York court's in personam jurisdiction in personal injury action. Melendez v.
Professional Mach. & Tool Co., Ltd. (2 Dept. 1993) 190 A.D.2d 657, 593 N.Y.S.2d 258. Constitutional Law
3965(4)
Evidence that son, a Missouri resident, used power of attorney to withdraw father's monies on deposit in New
York bank by calling New York bank from Missouri, inquiring as to procedure for closing account and withdrawing funds, mailing letters to bank, enclosing bankbook and power of attorney was sufficient “purposeful
activity” in New York to confer jurisdiction over son. Catauro v. Goldome Bank for Sav. (2 Dept. 1993) 189
A.D.2d 747, 592 N.Y.S.2d 422. Courts
13.5(2)
By making statements to wife that he would pay bar mitzvah expenses of minor child, nonresident ex-husband
did not purposefully avail himself of privilege of conducting activities in state thus invoking benefits and protections of state law so as to justify exercise of jurisdiction over husband. Jacobson v. Grindlinger (2 Dept. 1991)
178 A.D.2d 507, 577 N.Y.S.2d 432. Child Support
507
In-state negotiation and execution of affiliation contracts and letter agreements in connection with cable programmer's provision of services to cable television systems demonstrated purposeful activities from which systems benefitted so as justify exercise of personal jurisdiction over them. Home Box Office, Inc. v. Baum (1
13.3(10)
Party who held bond and mortgage executed in New York covering New York property, and who used attorney
in New York for real estate transactions, thereby engaged in purposeful activity in New York and was subject to
New York court's personal jurisdiction in conversion case. Drew v. Hooper (4 Dept. 1990) 168 A.D.2d 903, 565
13.5(4)
New York resident's vague references to discussions had in New York which could have taken place either before or long after allegedly usurious loan complained of did not show purposeful activity by lenders in New
York as necessary to exercise personal jurisdiction; at best, resident's allegation barely showed attempt to settle
differences with respect to preexisting contract. McKinney's CPLR 302(a), par. 1. Mahtani v. C. Ramon, Inc. (1
Page 250
13.5(12)
Former student, who had graduated and returned to California before she attended fraternity party at her alma
mater and then wrote allegedly defamatory letters to university president and trustees, had completed her duties
under contract, if any, with university, did not conduct any business activity in New York, and, therefore, was
not subject to personal jurisdiction for purposeful business activity, even though she would not have made observations at fraternity party but for attendance at university, where former student had graduated two years before attending party. Talbot v. Johnson Newspaper Corp. (3 Dept. 1987) 123 A.D.2d 147, 511 N.Y.S.2d 152, appeal granted 69 N.Y.2d 612, 517 N.Y.S.2d 1027, 511 N.E.2d 86, appeal dismissed 70 N.Y.2d 777, 521 N.Y.S.2d
13.5(9)
221, 515 N.E.2d 907, affirmed 71 N.Y.2d 827, 527 N.Y.S.2d 729, 522 N.E.2d 1027. Courts
In action for alleged breach of contract, trial court had subject-matter jurisdiction over nonresident buyer where
buyer's principals on two occasions performed “purposeful acts” in New York in connection with purchase of
bakery oven by sending principals to oversee dismantling of oven in New York. Dulman v. Potomac Baking
Co., Inc. (2 Dept. 1981) 85 A.D.2d 676, 445 N.Y.S.2d 509. Courts
13.5(3)
Action of out-of-state finance company in perfecting security agreement touching assets located in New York
and subsequent liquidation of part of such assets, constituted a “purposeful transaction” sufficient to confer jurisdiction in New York. Alan Howard, Inc. v. American Acceptance Corp. (1 Dept. 1970) 35 A.D.2d 923, 316
N.Y.S.2d 1. Courts
13.5(12)
Test of transacting business within state under this section concerning acts which may serve as basis for personal
jurisdiction over a nondomiciliary may be satisfied by showing of other purposeful acts by nonresident in New
York in relation to contract, albeit preliminary or subsequent to its execution and foreign corporate assignee of
control and ownership of life policy which covered an officer and designated as beneficiary the trustee under a
stockholders' agreement had not clearly demonstrated that it was not subject to jurisdiction of New York court
entertaining action to rescind the policy on ground of material representations of officer. Bankers Sec. Life Ins.
Soc. v. Vitex Mfg. Co. (1 Dept. 1966) 25 A.D.2d 644, 268 N.Y.S.2d 389.
Nigerian finance company that had allegedly used New York commercial checking account to receive and transfer stolen funds had sufficient minimum contacts with New York to be subject to personal jurisdiction there in
action to recover the funds; by utilizing New York account, finance company was afforded protection of New
York's banking law and access to extensive communications network that made transfers of foreign currency
possible. Banco Nacional Ultramarino, S.A. v. Chan, 1996, 169 Misc.2d 182, 641 N.Y.S.2d 1006, affirmed 240
A.D.2d 253, 659 N.Y.S.2d 734. Banks And Banking
18
New York court had long-arm jurisdiction, in context of prejudgment attachment order, over nondomiciliary defendant who resided outside state of New York, where debtor on his own and via his agent transacted business in
New York, thereby invoking benefits and protections in New York law, and debtor committed tortious acts within state of New York. Banco Internacional, S.A. v. Vilaseca, 1994, 166 Misc.2d 72, 631 N.Y.S.2d 468. Courts
13.5(1)
Page 251
Where contacts in New York of Illinois corporation's Illinois counsel were meaningful and purposeful such acts
could be imputed to the corporation to sustain long-arm jurisdiction in action by New York attorneys to recover
for services rendered in connection with initiation and prosecution of a New York lawsuit on the corporation's
behalf; affirmative and deliberate use of New York courts by the corporation through its counsel render it amenable to long-arm jurisdiction. Kazlow and Kazlow v. A. Goodman & Co., Inc., 1977, 92 Misc.2d 1084, 402
13.5(11)
N.Y.S.2d 98. Courts
Defendant corporation's purposeful activity in New York in the form of seeking enforcement of a Texas judgment constituted “transaction of business” which supported acquisition of in personam jurisdiction in action
against said corporation for declaration that the Texas judgment was a nullity and for permanent injunction restraining enforcement thereof. Overmyer v. Eliot Realty, 1975, 83 Misc.2d 694, 371 N.Y.S.2d 246. Courts
13.5(1)
Pro-life protestor sued by state and reproductive health care providers and facilities had requisite minimum contacts with forum for district court to assert personal jurisdiction, pursuant to New York long-arm statute; protestor's conduct both took place in New York and was purposefully directed toward New York, and formed basis for
claims asserted against him and parent organization. People of New York ex rel. Spitzer v. Operation Rescue
Nat., C.A.2 (N.Y.)2007, 240 Fed.Appx. 430, 2007 WL 1290222, Unreported. Federal Courts
76.35
194. ---- Burden of proof, purposeful acts, transaction of business
To make out prima facie showing of personal jurisdiction over defendant under “transacting business” provision
of New York's long-arm statute, plaintiff must show that defendant purposefully availed himself of privilege of
conducting activities within New York such that bringing defendant before a New York court does not offend
due process, and that plaintiff's cause of action arose out of those activities in New York. Kronisch v. U.S.,
C.A.2 (N.Y.)1998, 150 F.3d 112. Constitutional Law
3965(3); Courts
13.3(11)
Under New York law, a plaintiff can satisfy the due process requirements for personal jurisdiction over a foreign
corporation in a diversity action by showing that the defendants transacted business in New York State; this requires a showing that the defendant purposefully directed his activities at residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activities. In re Terrorist Attacks on September 11, 2001, 2006, 440 F.Supp.2d 281. Constitutional Law
3965(3)
To establish personal jurisdiction under New York's long-arm statute on grounds that defendant transacted business in the state, plaintiff must demonstrate that defendant engaged in a purposeful business transaction in or
directed to New York and that such contacts within the state had a substantial relationship to the claim asserted
in the underlying litigation. Miller v. Calotychos, 2004, 303 F.Supp.2d 420. Courts
13.3(11)
Under provision of New York long-arm statute allowing personal jurisdiction to be asserted over nondomiciliary
corporation that transacts any business within state, plaintiff must demonstrate that defendant purposefully
availed itself of the privilege of conducting activities within New York and that the causes of action arose out of
the activities within the state. Dimensional Media Associates, Inc. v. Optical Products Development Corp.,
Page 252
13.4(3)
To meet “transacting business” element of “arising under” requirement in New York's long-arm statute, plaintiff
must show that defendant purposely availed itself of privilege of conducting activities within New York, thus invoking benefits and protections of its laws, and court should examine totality of defendant's contacts with New
York rather than focus on isolated event. Kahn Lucas Lancaster, Inc. v. Lark Intern. Ltd., 1997, 956 F.Supp.
13.3(11)
1131. Courts
195. Contracts, transaction of business--In general
Mere existence of a contract with a New York corporation is insufficient to prove that non-domiciliary defendant transacted business in New York within meaning of state's long-arm statute. Grasso v. Bakko, 2008, 570
13.3(11)
Mere existence of a contract with a New York corporation is not sufficient to constitute the transaction of business under New York long-arm statute. Burrows Paper Corp. v. R.G. Engineering, Inc., 2005, 363 F.Supp.2d
379. Courts
13.3(11)
Agreement to pay money in state is insufficient to support exercise of personal jurisdiction over nonresident defendant under New York long-arm statute. Spanierman Gallery, PSP v. Love, 2004, 320 F.Supp.2d 108. Federal
Courts
76.15
Under New York's long arm statute, personal jurisdiction in contract actions is determined by examining whether the defendant has performed purposeful acts in New York in relation to the contract. Pfeffer v. Mark, 1999,
13.5(3)
Panamanian television program distribution company, and its owner, did not transact business within New York,
and thus it were not subject to personal jurisdiction in unjust enrichment action under “transacts business” provision of New York's long-arm statute, despite claim that company and owner deposited bribe money in New York
bank account, where company and owner did not have presence in New York, contract for television programming services did not involve delivery of services or goods in New York, tortious act did not occur in New
York, and there was no allegation that tort was committed out of state, causing in-state injury. Pramer S.C.A. v.
Abaplus Intern. Corp. (1 Dept. 2010) 76 A.D.3d 89, 907 N.Y.S.2d 154. Courts
13.5(4)
There is no requirement that the contract be made or performed in New York, under provision of New York
long-arm statute covering transaction of business in state. Taibleson v. National Center for Continuing Educ.,
13.3(11)
196. ---- Factors for jurisdiction relating to contracts, transaction of business
Factors to be considered in determining whether out-of-state defendant “transacts business” in New York within
Page 253
meaning of New York's long-arm statute include: (1) whether defendant has on-going contractual relationship
with a New York corporation; (2) whether contract was negotiated or executed in New York and whether, after
executing contract with New York business, defendant has visited New York for purpose of meeting with parties
to contract regarding the relationship; (3) what choice-of-law clause is in any such contract; and (4) whether
contract requires franchisees to send notices and payments into forum state or subjects them to supervision by
corporation in forum state. Sunward Electronics, Inc. v. McDonald, C.A.2 (N.Y.)2004, 362 F.3d 17, 69
13.3(11)
U.S.P.Q.2d 2002. Courts
Under New York law, Chinese battery manufacturer did not transact business or contract to supply goods in
New York, for purposes of determining whether it was subject to specific personal jurisdiction in New York in
its sales representative's third party action against it seeking indemnity in buyer's products liability action, where
representative supplied lithium-ion batteries to buyer's Oregon plant, and it was buyer, rather than manufacturer
or representative, that contracted to supply defective batteries to New York customers. UTC Fire & Sec. Amer86
icas Corp., Inc. v. NCS Power, Inc., 2012, 844 F.Supp.2d 366. Federal Courts
Under New York's long-arm statute, several factors should be considered in determining whether an out-of-state
defendant contracts to supply goods or services in New York, including: (1) whether the purchase orders and
other documents provide for shipment to New York; (2) whether the defendant collected New York sales tax in
connection with the transaction; (3) whether the defendant solicited the contract in New York; (4) whether the
defendant entered New York for purposes of performing the contract; and (5) any other factor showing that defendant voluntarily and purposefully availed itself of the privilege of transacting business in New York. Wickers
Sportswear, Inc. v. Gentry Mills, Inc., 2006, 411 F.Supp.2d 202. Courts
13.3(10); Courts
13.3(11)
Numerous factors are considered in determining whether a foreign defendant transacts business in New York,
within meaning of New York's long-arm statute, such as: (1) whether defendant has an on-going contractual relationship with a New York corporation; (2) whether contract was negotiated or executed in New York and
whether, after executing contract with New York business, defendant has visited New York for purpose of meeting with parties to contract regarding relationship; (3) what choice-of-law clause is in any such contract; and (4)
whether contract requires franchisees to send notices and payments into forum state or subjects them to supervision by corporation in forum state. Sole Resorts, S.A. de C.V. v. Allure Resorts Management, LLC, 2005, 397
F.Supp.2d 426, vacated and remanded 450 F.3d 100, on remand 2007 WL 646288. Federal Courts
79
Factors to be considered in determining whether an out-of-state defendant transacts business in New York within New York long-arm statute include (i) whether the defendant has an on-going contractual relationship with a
New York corporation; (ii) whether the contract was negotiated or executed in New York and whether, after executing a contract with a New York business, the defendant has visited New York for the purpose of meeting
with parties to the contract regarding the relationship; (iii) what the choice-of-law clause is in any such contract;
and (iv) whether the contract requires franchisees to send notices and payments into the forum state or subjects
them to supervision by the corporation in the forum state. Maranga v. Vira, 2005, 386 F.Supp.2d 299. Courts
13.3(11)
To determine whether party in contract action has “transacted business” within meaning of New York long-arm
Page 254
statute, courts consider, inter alia, whether: (1) defendant has ongoing contractual relationship with New York
entity; (2) contract was negotiated or executed in New York, and whether, after executing contract with New
York business, defendant has visited New York for purpose of meeting with parties to contract regarding relationship; (3) contract is to be performed in New York; (4) contract requires notices and payments to be sent to
New York; and (5) contract contains New York choice-of-law clause. Mortgage Funding Corp. v. Boyer Lake
13.5(3)
Pointe, LC, 2005, 379 F.Supp.2d 282. Courts
Utah prospective mortgagors sued by New York mortgage broker alleging breach of oral mortgage agreement
did not “transact business” in New York within meaning of New York long-arm statute; mortgagors did not have
ongoing contractual relationship with broker, alleged contract was negotiated and executed solely via electronic
communications between parties located in different states, subject matter of contract involved properties solely
situated in Utah, contract did not cover delivery of payment, and New York choice-of-law stipulation was not
included in contract. Mortgage Funding Corp. v. Boyer Lake Pointe, LC, 2005, 379 F.Supp.2d 282. Federal
76.15
Courts
Page 255
Factors considered in determining whether an out-of-state defendant transacts business in New York for purposes of New York long-arm statute: (1) whether the defendant has an on-going contractual relationship with a
New York corporation, (2) whether the contract was negotiated or executed in New York, and whether, after executing a contract with a New York business, the defendant has visited New York for the purpose of meeting
with parties to the contract regarding the relationship, (3) what the choice-of-law clause is in any such contract,
and (4) whether the contract requires franchisees to send notices and payments into the forum state or subjects
them to supervision by the corporation in the forum state. Burrows Paper Corp. v. R.G. Engineering, Inc., 2005,
13.3(11)
Factors to be considered in determining whether defendant is subject to “transacting business” provision of New
York long-arm statute are: (1) whether defendant has ongoing contractual relationship with New York corporation; (2) whether contract was negotiated or executed in New York; (3) whether defendant visited New York for
purpose of meeting with parties to agreement; and (4) choice of law clause in agreement. Smit v. Isiklar Holding
A.S., 2005, 354 F.Supp.2d 260. Courts
13.3(11)
To determine whether non-domiciliary has transacted business in New York within the meaning of “transaction
of business” prong of New York's long arm statute, so as to support exercise of personal jurisdiction, court must
consider totality of circumstances surrounding action, and may consider: whether defendant has ongoing contractual relationship with New York business, whether contract was negotiated or executed in New York, whether defendant visited New York to meet with the parties to contract regarding performance thereof after execution
of contract, and whether contract required defendant to send notices and payments into New York or otherwise
perform in New York. Traver v. Officine Meccaniche Toshci SpA, 2002, 233 F.Supp.2d 404. Courts
13.3(11)
Factors to be considered in determining whether defendant has transacted business in state for purposes of New
York long-arm statute include: (1) whether the defendant has an on-going contractual relationship with a New
York corporation; (2) whether the contract was negotiated or executed in New York and whether, after executing
a contract with a New York business, the defendant has visited New York for the purpose of meeting with
parties to the contract regarding the relationship; (3) what the choice-of-law clause is in any such contract; and
(4) whether the contract requires notices and payments to be sent into the forum state or requires supervision by
the corporation in the forum state. Creative Socio-Medics, Corp. v. City of Richmond, 2002, 219 F.Supp.2d 300.
Courts
13.3(11)
For the purpose of application of New York's long arm statute in the context of a contract action, courts consider
a variety of factors, including whether the defendant has an ongoing contractual relationship with a New York
business, whether the contract was negotiated or executed in New York, whether, after executing such a contract, the defendant visited New York to meet with parties to the contract regarding performance thereof, and
whether the contract requires the defendant to send notices and payments into New York or otherwise to perform
in New York. Ulster Scientific, Inc. v. Guest Elchrom Scientific AG, 2001, 181 F.Supp.2d 95. Courts
Page 256
13.5(3)
Although a court considers such factors as the place where the risk of loss shifts from a seller to a purchaser, and
the place of execution of the contract, when applying New York's long arm statute in the context of a contract
action, neither is determinative of whether a court should exert personal jurisdiction over a defendant. Ulster
13.5(3)
Scientific, Inc. v. Guest Elchrom Scientific AG, 2001, 181 F.Supp.2d 95. Courts
For the purpose of application of New York's long arm statute in the context of a contract action, courts consider
whether purchase orders and other documents provide for shipment to New York, whether a defendant collected
New York sales tax in connection with the transaction, whether the defendant solicited the contract in New York
or entered New York for purposes of performing the contract, and any other factors showing that the defendant
voluntarily and purposely availed itself of the privilege of transacting business in New York State. Ulster Sci13.5(3)
entific, Inc. v. Guest Elchrom Scientific AG, 2001, 181 F.Supp.2d 95. Courts
Whether nondomiciliary's contacts with New York are of appropriate nature to permit long-arm jurisdiction
must be determined by an analysis of the totality of the circumstances, and relevant factors to be considered include: (1) whether defendant has on-going contractual relationship with New York corporation, (2) whether contract was negotiated or executed in New York, and, whether, after executing contract with New York business,
defendant has visited New York for purpose of meeting with parties to contract regarding relationship, (3) what
choice-of-law clause is in any such contract, and (4) whether contract requires defendant to send notices and
payments into New York or subjects defendant to supervision by corporation in New York; although all are relevant, no one factor is dispositive. Clarendon Nat. Ins. Co. v. Lan, 2001, 152 F.Supp.2d 506. Courts
13.3(10)
The primary factors considered by courts under New York's long arm statute include the physical presence of
the defendant in New York, the execution of a contract in New York by the defendant, and the performance of
the contract in New York; the overriding criterion which informs this analysis is whether the defendant has purposely availed himself of the privilege of conducting activities within the forum state. Cooper, Robertson &
Partners, LLP v. Vail, 2001, 143 F.Supp.2d 367. Courts
13.3(1); Courts
13.3(4); Courts
13.3(10)
To determine whether party in contract action has “transacted business” within meaning of New York long-arm
statute, court considers, among other things: (1) whether contract was negotiated and executed in New York, and
whether defendant visited New York for purpose of meeting with parties after contract had been executed; (2)
whether contract contains New York choice-of-law clause; (3) whether contract is to be performed in New York;
(4) whether contract requires notices and payments to be sent to New York; and (5) defendant's physical presence in New York in connection with ongoing contractual relationship with New York corporation. Arista Technologies, Inc. v. Arthur D. Little Enterprises, Inc., 2000, 125 F.Supp.2d 641.
Factors considered in determining whether a defendant “transacts business” in New York for purposes of its
long-arm statute include: (1) whether the contract was negotiated and executed in New York; (2) whether the
contract contains a New York choice-of-law clause; (3) whether the contract is to be performed in New York;
Page 257
(4) whether, after executing the contract with a New York business, the defendant has visited New York for the
purpose of meeting with parties to the contract regarding the relationship; and (5) defendant's physical presence
in New York, if any, in connection with an ongoing contractual relationship with a New York corporation. Pho13.3(11)
toactive Productions, Inc. v. AL-OR Intern. Ltd., 2000, 99 F.Supp.2d 281. Courts
To determine whether a party in a contract action has “transacted business” in New York, within meaning of
New York's long arm statute, courts consider, among other things: (1) whether the contract was negotiated and
executed in New York; (2) whether the contract contains a New York choice-of-law clause; (3) whether the contract is to be performed in New York; and (4) defendant's physical presence in New York, if any, in connection
with an ongoing contractual relationship with a New York corporation. Unlimited Care, Inc. v. Visiting Nurse
13.5(3)
Ass'n of Eastern Massachusetts, Inc., 1999, 42 F.Supp.2d 327. Courts
Circumstances relevant to determining whether party has transacted business in state within meaning of New
York long-arm statute include, but are not limited to: (1) whether defendant has ongoing contractual relationship
with New York corporation; (2) whether contract was negotiated or executed in New York and whether, after
executing contract with New York business, defendant visited New York to meet with parties to contract regarding relationship; (3) what choice of law clause is in contract; and (4) whether contract requires notices and payments to be sent into forum state or requires supervision by corporation in forum state, and no one factor is dispositive, and all are relevant. National Telephone Directory Consultants, Inc. v. Bellsouth Advertising & Pub.
13.3(11)
Whether defendant has transacted business in New York, within meaning of New York's long arm statute, depends on consideration of numerous factors, such as whether (a) defendant has ongoing relationship with New
York corporation; (b) contract was negotiated or executed in New York; (c) contract contains New York choiceof-law clause; and (d) payments were to be made into New York or performance was to be supervised from New
York. Worldwide Futgol Associates, Inc. v. Event Entertainment, Inc., 1997, 983 F.Supp. 173. Courts
13.3(11)
Executive producer agreement between New York music publisher and non-resident promoter, requiring promoter to produce, market, promote, and distribute album and two music videos, was insufficient to establish that
promoter contracted to supply goods or services in New York for purposes of establishing personal jurisdiction
over promoter under New York's long-arm-statute, even though promoter was required to send completed album
to publisher in New York, where agreement had contained no geographic qualifications, and promoter had not
intended to take advantage of New York's unique resources in entertainment industry. Royalty Network, Inc. v.
Harris (1 Dept. 2012) 95 A.D.3d 775, 947 N.Y.S.2d 53. Courts
13.5(3)
197. ---- Performance, contracts, transaction of business
Account owners alleged that bank purposefully availed itself of conducting activities within New York forum
and that action arose from New York activities, as required for court's exercise of personal jurisdiction over
bank, pursuant to New York long-arm statute; bank had ongoing contractual relationship with owners, contract
required bank to send notices and payments into New York, and significant aspect of contract was performed in
New York. Trabucco v. Intesa Sanpaolo, S.p.A., 2010, 695 F.Supp.2d 98. Federal Courts
86
Page 258
Minnesota residents who starred in television program produced by New York corporation were subject to personal jurisdiction in New York in action for breach of contract brought by Minnesota-based creator of television
programs. Kaprall v. WE: Women's Entertainment, LLC (2 Dept. 2010) 74 A.D.3d 1151, 904 N.Y.S.2d 721.
13.5(3)
Courts
Generally, the place where a contract is performed is more important for purposes of jurisdiction than the place
where the contract is executed. Alan Lupton Associates, Inc. v. Northeast Plastics, Inc. (4 Dept. 1984) 105
13.3(10)
A.D.2d 3, 482 N.Y.S.2d 647. Courts
Activities undertaken subsequent to the making of a contract in furtherance of its performance may well constitute “transaction of business,” within meaning of this section. Atlantic Metal Products, Inc. v. Blake Const. Co.,
13.3(11)
New York court has jurisdiction over party who enters into contract outside New York which calls for performance of service in New York. Argonaut Ins. Co. v. Occidental Petroleum Corp., 1980, 106 Misc.2d 5, 430
13.3(10)
Where contract of employment required plaintiff as salesman to make sales and contact customers in several
states, including New York, and also required independent acts on part of nondomiciliary corporate defendant,
plaintiff's employer, to see that goods were delivered and to receive and service other orders, New York court
could obtain personal jurisdiction over corporate employer under this section, even though employment contract
was made in Georgia. Savitz v. Zim Chemical Co., Inc., 1974, 80 Misc.2d 993, 364 N.Y.S.2d 661. Courts
13.5(3)
When nonresident selects and contacts a New York resident to perform services on a chattel he owns, knowing
the work is to be performed in New York and sends the chattel to New York where the work is thereafter done,
nonresident has demonstrated sufficient reasonable contact with New York and has deliberately invoked the protection of laws of New York so as to make him amenable to jurisdiction in suit by the New York resident for
payment for the work. Margaret Watherston, Inc. v. Forman, 1973, 73 Misc.2d 875, 342 N.Y.S.2d 744. Courts
13.3(4)
198. ---- Performance by plaintiff, contracts, transaction of business
A plaintiff's in-state performance alone will not subject a defendant to a New York court's personal jurisdiction.
Cooper, Robertson & Partners, LLP v. Vail, 2001, 143 F.Supp.2d 367. Courts
13.3(10)
A plaintiff's New York activities relating to a contract cannot be imputed to a defendant for purposes of establishing jurisdiction under New York's long arm statute. Unlimited Care, Inc. v. Visiting Nurse Ass'n of Eastern
Massachusetts, Inc., 1999, 42 F.Supp.2d 327. Courts
13.5(3)
For purposes of this section, a defendant may be found to have engaged in a purposeful transaction within state
Page 259
when contract calls for plaintiff to perform activities in New York for benefit of defendant. Wichita Federal Sav.
76.30
and Loan Ass'n v. Comark, 1984, 586 F.Supp. 940, affirmed 810 F.2d 1161. Federal Courts
199. ---- Supervision or control of performance, contracts, transaction of business
New York contractor's performance of contract with Bahamian corporation to install irrigation system on corporation's property located in the Bahamas was not subject to supervision by contractor's employees in New
York, and, thus, was not sufficient to confer personal jurisdiction over corporation under New York law; although contractor decided to carry out some of the logistics and internal management of the contract project by
using employees based in New York, work was managed on-site by experienced project foremen. Sandoval v.
86
Abaco Club on Winding Bay, 2007, 507 F.Supp.2d 312. Federal Courts
Cypriot entities, through their agents, transacted business in New York, as required to support exercise of personal jurisdiction over them under long-arm statute, by virtue of “some control” they exercised over other defendant who negotiated partnership agreement in New York and another defendant's subsequent actions in New
York, including its commencement of action in federal court in New York based on the partnership agreement.
New Media Holding Co. LLC v. Kagalovsky (1 Dept. 2012) 97 A.D.3d 463, 949 N.Y.S.2d 22, on remand 2012
WL 3636517. Courts
13.3(11)
Where defendant nonresidents purchased purebred cattle from plaintiff's assignor, and, in connection with the
purchase and as part of one integrated transaction, entered into a breeding and maintenance agreement with assignor, a New York corporation, and where defendants, pursuant to the agreement, retained measures of authority and control over assignor's performance, defendants would be found to have engaged in purposeful activities
in New York, in connection with suit by assignee on promissory notes given in relation to the original agreement, so as to subject defendants to jurisdiction. Collateral Factors Corp. v. Meyers (1 Dept. 1972) 39 A.D.2d
27, 330 N.Y.S.2d 833. Courts
13.5(3)
Within meaning of this section, defendant movant, whose life was purportedly depicted in book, transacted business “in person” within New York, where, after author had completed manuscript, movant attempted to exercise
the right retained by him in his contract with the author to veto passages in the book, and where movant, inter
alia, threatened to bring suit against New York publisher unless certain passages were deleted from the
manuscript in accordance with his wishes. Legros v. Irving, 1973, 77 Misc.2d 497, 354 N.Y.S.2d 47. Courts
13.3(11)
Where defendants, which conducted no business in New York, exercised no control over services performed by
plaintiff under agreement, under which defendants' predecessors in interest granted plaintiff right to vend merchandise in Colorado theatre and under which plaintiff advanced $25,000, defendants had not “transacted business” within New York for purposes of this section, though plaintiff, which retained ownership of equipment
and merchandise, assertedly did supervisory work in New York and though payments on note evidencing loan of
$25,000 were made in New York. Pacific Concessions, Inc. v. Savard, 1973, 75 Misc.2d 219, 347 N.Y.S.2d 484.
Courts
13.3(11)
Page 260
Under New York law, absence of proof that United Kingdom citizen who at times consulted for limited liability
company that served as advisor and asset manager for real estate investors knew about, authorized, and exercised some control over company and its officer/director precluded District Court from asserting personal jurisdiction over consultant, pursuant to an agency theory, in real estate broker and brokerage agencies' action asserting breach of contract and quantum meruit claims. Ross v. UKI Ltd., 2004, 2004 WL 384885, Unreported. Fed76.20
eral Courts
200. ---- Ongoing contractual relationship, contracts, transaction of business
Out-of-state licensees transacted business in New York, for purposes of New York's long-arm statute, inasmuch
as licensees' very businesses arose out of ongoing contractual relationship with licensor headquartered in New
York, licensees submitted monthly reports and fees to licensor's headquarters and were in almost daily contact
with headquarters' personnel, licensees voluntarily located professional association and fleet financing organization in New York and conducted joint advertising campaign with licensor's New York advertising organizations,
and most, if not all, licensees heavily relied upon licensor's New York-based computerized reservation system.
Agency Rent A Car System, Inc. v. Grand Rent A Car Corp., C.A.2 (N.Y.)1996, 98 F.3d 25, 40 U.S.P.Q.2d 1455
76.15
. Federal Courts
New York buyer of parts for gas turbine assembly made prima facie showing of personal jurisdiction over Italian seller, under the “transacting business” prong of New York's long-arm statute, for purposes of breach of contract claim, by alleging that the parties had an on ongoing contractual relationship focused on New York forum,
that significant contract negotiations had taken place within the state, that seller had participated in telephone
conferences and videoconferences with buyer's representatives in New York, and that New York buyer had supplied seller with tools used in Italy to manufacture the blades. Allied Dynamics Corp. v. Kennametal, Inc., 2013,
2013 WL 4735698. Federal Courts
86
A nondomiciliary defendant's contractual relationship with a New York corporation and subsequent entry into
New York by the defendant for the purpose of meeting with parties to the contract regarding the contractual relationship, regardless of where formed, are relevant to whether the defendant had sufficiently transacted business in New York to warrant the exercise of jurisdiction under New York long-arm statute. Taylor Devices, Inc.
v. Walbridge Aldinger Co., 2008, 538 F.Supp.2d 560. Federal Courts
79
Under New York law, short-term contract for New York contractor to install irrigation system at golf course located in the Bahamas was not an ongoing contractual relationship that would subject Bahamian corporation that
operated course to personal jurisdiction in New York. Sandoval v. Abaco Club on Winding Bay, 2007, 507
86
Nonresident breach of contract defendant transacted business in New York, within meaning of New York longarm statute; defendant had on-going contractual relationship with plaintiff, who was New York resident, parties'
working relationship required that they communicate via written communications, e-mail and telephone, and
plaintiff had rendered his contractual services in New York. Matera v. Native Eyewear, Inc., 2005, 355
79
Page 261
Nonresident employee's systematic, ongoing relationship with a New York employer, with which he was in daily
contact just as if his office were physically located in New York, was sufficient to confer personal jurisdiction
over him under “transacting business” provision of New York long-arm statute where there was a substantial relationship between the employee's contacts with New York and employer's cause of action for breach of employment agreement; employee's purposeful out-of-state activities on behalf of his New York employer generated a
stream of local commerce, from which he earned his livelihood, originating in New York based on sales that employer's invoices labeled as New York transactions. SmartPros, Ltd. v. Straub (2 Dept. 2005) 24 A.D.3d 653,
13.5(3)
Trial court had personal jurisdiction over New Jersey administrator of health insurance plan of employer with
offices in New York and New Jersey, in hospital's action against administrator to recover on check issued by administrator in connection with services provided to employer's employee; administrator maintained total control
over administration of plan, requiring significant and continuous contact with New York health providers and,
thus, administrator transacted business and contracted to supply goods and services in New York, and quality
and nature of activity was related to firm and orderly administration of New York laws. Peekskill Community
13.5(14)
Hosp. v. Graphic Media Inc. (2 Dept. 1993) 198 A.D.2d 337, 604 N.Y.S.2d 120. Courts
201. ---- Single act, contracts, transaction of business
Mississippi seller of cranes used for construction projects did not “transact business” in New York by contracting with New York buyer, so as to be subject to specific jurisdiction there, pursuant to New York's long-arm
statute, in breach of contract action brought by buyer, where parties' contract was a one-time agreement for the
purchase of a crane, rather than an on-going contractual relationship, buyer had initiated contact with seller to
arrange for the purchase via email sent through seller's website, seller never visited New York in connection
with the contractual relationship but instead conducted negotiations via emails, telephone calls, and faxes, contract was executed by seller in Mississippi, payment for the crane was sent to Mississippi, and contract would be
performed in Poland, since crane was to be delivered there to be used in connection with construction project.
Skrodzki v. Marcello, 2011, 810 F.Supp.2d 501. Federal Courts
79
Even if Chicago area salesperson formerly employed by New York collection agency had participated in brief
training session in New York, that alone would not subject her to jurisdiction of New York courts in action
brought by collection agency based on alleged breach of anticompetitive clause contained in employment contract where it was undisputed that contract was executed and performed in Illinois and that agency had initially
contacted salesperson in that state. G. S. C. Associates, Inc. v. Rogers, 1977, 430 F.Supp. 148. Federal Courts
84
Where defendant buyer's chairman of the board, who was in New York primarily to look after business affairs of
defendant's parent corporation, hand-delivery of purchase orders to seller was with respect to prior contract
between seller and buyer's parent which was allegedly negotiated and executed in California and which allegedly was to be governed by California law, single contact, with New York consisting of such hand-delivery
of purchase orders did not constitute sufficient contact with New York to give its courts personal jurisdiction
over buyer, against which seller's trustee in bankruptcy had brought diversity suit to obtain payment for goods
sold and delivered, and thus federal district court was also without jurisdiction over defendant's buyer. Klein v.
Page 262
E. W. Reynolds Co., Inc., 1973, 355 F.Supp. 886. Federal Courts
81
Trial court lacked jurisdiction over Missouri corporate defendants in action for breach of contract whereby
plaintiff agreed to assist defendants defend federal lawsuit in Texas by withdrawing as named plaintiff from that
suit and by cooperating with defendants in prosecution of second lawsuit in Texas; there was no evidence that
parties' agreement required plaintiff to perform his alleged contractual obligations in New York or that defendants contemplated performance by plaintiff in New York, and it was only for plaintiff's convenience that his attendance at deposition (which he contended constituted substantial component of his performance) took place in
13.5(3)
New York. Milliken v. Holst (2 Dept. 1994) 205 A.D.2d 508, 612 N.Y.S.2d 660. Courts
Record did not establish that contract was not made during two-hour meeting which was only nexus between
contract dispute and New York forum, so as to demonstrate lack of sufficient purposeful activity in New York
and preclude long-arm jurisdiction from attaching; under New York law, it appeared that jurisdiction could be
exercised simply on basis of defendant's having been present in state during time that contract was made, and
there was disputed question of fact as to whether contract was entered into at New York meeting. Firegreen Ltd.
13.5(3)
v. Claxton (1 Dept. 1990) 160 A.D.2d 409, 553 N.Y.S.2d 765. Courts
202. ---- Communications into state, contracts, transaction of business
Fact that Michigan corporation made several telephone calls to New York offices of public opinion research
company and faxed and mailed materials there did not confer personal jurisdiction over Michigan corporation in
research company's breach of contract action; telephone calls were solely to ensure compliance with the contract
terms. Roper Starch Worldwide, Inc. v. Reymer & Associates, Inc., 1998, 2 F.Supp.2d 470. Federal Courts
84
In suit for payment under contract against United States Virgin Islands corporation with office in Alabama, personal jurisdiction was not proper under “transaction of business” provision of New York long-arm statute where
defendant had no physical presence in New York, all contract negotiations took place in Venezuela, performance
under the contract took place primarily in Venezuela, and defendant's only contact with New York was wiring
payments at other party's request to bank account in New York. Continental Field Service Corp. v. ITEC Intern.,
84
Georgia retailer's activities in connection with contract to buy women's skirts of placing order by means of telephone call, returning unsatisfactory clothes, placing several other telephone calls and sending letters to New
York wholesaler did not rise to level of purposeful activity in New York required to confer personal jurisdiction
over retailer. Dero Enterprises, Inc. v. Georgia Girl Fashions, Inc., 1984, 598 F.Supp. 318. Federal Courts
84
203. ---- Sufficiency of contacts, contracts, transaction of business
Adequate grouping of contacts existed to apply New York law to breach of contract claim brought by company
in the business of providing on-line news and financial information against insurance broker arising from
Page 263
broker's alleged failure to notify company of its credit corporation's mailing of notice of intent to cancel and the
cancellation notice to company for nonpayment of premiums for directors and officers liability coverage;
policies were brokered in New York by insurance broker, which was also a corporation headquartered and licensed to do business in New York, and the company, in contrast, was incorporated in Delaware, with its principal place of business having moved from Florida to London, England, and, the financing agreement was prepared and executed in New York and the credit corporation was also a New York corporation. GlobalNet Finan1091(1)
cial.Com, Inc. v. Frank Crystal & Co., Inc., C.A.2 (N.Y.)2006, 449 F.3d 377. Insurance
Foreign bank's “aval,” i.e., guaranty, on promissory note payable to New York forfaiter, pursuant to forfaiting
transaction involving notes made in Jordan by Greek importer and payable to Swiss exporter, who designated
New York as place of payment, was contract to provide service in New York that subjected bank to New York's
long-arm jurisdiction in connection with claims arising out of that contract; bank was acting as guarantor, not as
primary obligor, payment in New York was not incidental or fortuitous, and existence of secondary market for
forfaited notes support assertion of jurisdiction. A.I. Trade Finance, Inc. v. Petra Bank, C.A.2 (N.Y.)1993, 989
86
F.2d 76, on remand 1997 WL 291841. Federal Courts
Washington public utility district was subject to personal jurisdiction in New York in bond insurer's action
against it for breach of interest rate swap agreement, where district's remarketing agent was New York company,
district secured guarantee under swap agreement from New York company, district had ongoing contractual relationship with New York bank, district used New York-based advisors to negotiate agreement in New York,
agreement contained New York choice-of-law provision, agreement required district to send notices and payments into New York, and some conduct that allegedly breached agreement either occurred in, or was directed
to, New York. AIG Financial Products Corp. v. Public Utility Dist. No. 1 of Snohomish County, Wash., 2009,
76.30
Spanish corporation transacted business in New York as would give rise to jurisdiction under long-arm statute in
action by consulting firm alleging that corporation breached letter agreements by selling Mexican steel mills
without paying required fees for firm's services in finding buyer; corporation had contractual relationship with
firm, a New York corporation, letter agreements each contained a New York choice-of-law provision, negotiations for each letter agreement were allegedly conducted in New York, letter agreements allegedly required
corporation to send payments to firm in New York, and corporation allegedly communicated with firm in New
York via phone, mail, or electronic means and made numerous trips to visit firm in New York regarding parties'
business relationship. GEM Advisors, Inc. v. Corporacion Sidenor, S.A., 2009, 667 F.Supp.2d 308. Federal
Courts
86
Supplier established a prima facie showing, under the totality of circumstances, that Mexican purchaser transacted business in New York sufficient to establish long-arm jurisdiction in supplier's breach of contract action
arising from purchaser's failure to make payment of balance due on its contract; in negotiating purchase with
supplier's sales representative in Mexico, purchaser was aware that it was proposing to enter into a contract with
supplier whereby supplier was to manufacture the goods in New York and receive payment in New York, purchaser also forwarded an initial payment to supplier's account in New York, and later sent a team to supplier's
facilities to inspect and accept the goods. Taylor Devices, Inc. v. Walbridge Aldinger Co., 2008, 538 F.Supp.2d
560. Federal Courts
86
Page 264
District court possessed personal jurisdiction over claim brought by pension fund against Turkish corporation,
alleging failure to pay assessed withdrawal liability under ERISA, where complaint averred that corporation
entered into contractual relationship with fund via stock purchase agreement and collective bargaining agreements, and that corporation did business in New York under subsidiary's name. Smit v. Isiklar Holding A.S.,
666
2005, 354 F.Supp.2d 260. Labor And Employment
Under New York law, district court had long-arm jurisdiction over out-of-state businesses who contracted with
entity that transacted business in New York by setting up shell corporation for sole purpose of acting as their
agent in obtaining workers' compensation insurance from New York insurer, for purposes of insurer's suit seeking declaratory judgment that businesses did not have coverage. Oriska Ins. Co. v. Power P.E.O., Inc., 2004, 352
82
Contacts that citizens and residents of the United Kingdom, and their U.K. corporation, had with New York
were sufficient to constitute “transaction of business” for purposes of New York's long-arm statute, and thus,
District Court had personal jurisdiction over such non-residents in plaintiff's action based on non-residents' alleged breach of venture agreement, where non-residents allegedly solicited business, established new business
relationships, and promoted their interests at meetings and trade shows in New York. Miller v. Calotychos,
86
Administrator for insolvent British company, who entered into contract in New York, had sufficient contacts
with state to subject him to personal jurisdiction of federal court sitting there, in action arising out of contract in
question; contract called for closing and payments in New York, and administrator allegedly undertook action
for his personal benefit. Houbigant, Inc. v. Development Specialists, Inc., 2002, 229 F.Supp.2d 208. Federal
Courts
86
Florida producer of software products transacted business in New York, for purposes of establishing personal
jurisdiction under New York long-arm statute, in breach of contract case brought by New York provider of financial and investment banking services; contract under which financial services provider was to locate and introduce third party for technology license or other purposes was negotiated in New York, calls were directed into
state, and work called for under contract was performed in state. HD Brous & Co., Inc. v. Synthesys Secure
Technologies, Inc., 2002, 229 F.Supp.2d 191. Federal Courts
79
Personal jurisdiction could be exercised under New York's long-arm statute with respect to breach of contract
claim asserted by investment advisor against expert witness who testified for corporation funded by advisor's
client in corporation's prior state-court action against client where expert transacted business in New York by
signing confidentiality agreement at issue with corporation's counsel, assisting with corporation's case, and testifying on corporation's behalf, expert sent information which he had received during state-court action to another
party funded by one of advisor's clients, and advisor made prima facie showing that it was intended third-party
beneficiary of confidentiality agreement. Southridge Capital Management, LLC v. Lowry, 2002, 188 F.Supp.2d
388. Federal Courts
79
New York court had personal jurisdiction over Ohio customers, for purpose of lawsuit by New York architectur-
Page 265
al firm alleging breach of contract; customers contacted architectural firm and formed contractual relationship
with firm, understanding that majority of architectural design work for which customers' contracted would be
performed in New York, customers understood that firm's sole office was located in New York City, and
“agents” of customers met with agent of firm in New York and meeting led directly to customers' decision to retain firm's services. Cooper, Robertson & Partners, LLP v. Vail, 2001, 143 F.Supp.2d 367. Federal Courts
76.30
California manufacturer was “transacting business” in New York within the meaning of New York long-arm
statute when it selected plaintiff as its advertising broker; contract was executed in New York, no choice-of-law
clause existed, contract was to be performed primarily in New York, after executing the contract, manufacturer's
representatives visited New York to discuss such items pertaining to the contract such as a photo layout, and a
sight to make a commercial, and manufacturer was physically present in New York. Photoactive Productions,
81
Inc. v. AL-OR Intern. Ltd., 2000, 99 F.Supp.2d 281. Federal Courts
Defendant corporation was amenable to service pursuant to New York's long arm statute, having contracted to
provide services in New York. American Institute of Certified Public Accountants v. Affinity Card, Inc., 1998, 8
79
Out-of-state client transacted business and, thus, had sufficient contacts with New York to be subject to personal
jurisdiction in attorney's breach of contract action; although retainer agreement was signed in Texas, client's
president came to New York and discussed agreement before it was signed, legal services were performed in
New York, client had customers in New York, and purported termination of retainer agreement was accomplished by sending letter to attorney in New York. Kelly v. MD Buyline, Inc., 1998, 2 F.Supp.2d 420. Federal
Courts
76.30
American importer made prima facie showing that district court has personal jurisdiction over Turkish shipper
of cargo of dried apricots under section of New York long arm statute by demonstrating that shipper conducted
business in New York in conjunction with shipment, and that claim arose out of contract to supply goods to New
York; shipper's bills of lading provided for New York as port of discharge, and such purposeful activity directed
at New York was sufficient to confer personal jurisdiction pursuant to statute despite the fact that the two containers of apricots were ultimately shipped to Port Elizabeth, New Jersey. APC Commodity Corp. v. Ram Dis
Ticaret A.S., 1997, 965 F.Supp. 461. Federal Courts
86
Texas seller of telecommunications equipment was subject to personal jurisdiction in New York; seller's contract to supply goods and services in New York met requirements of state's long-arm statute, and seller had sufficient minimum contacts with New York by virtue of its subcontract with New York corporation to install
seller's telecommunications products in New York. Micro-Assist, Inc. v. Cherry Communications, Inc., 1997,
76.30
Page 266
84
District court sitting in New York had jurisdiction over out-of-state subcontractor in contract breach case, even
though contractor had no offices or assets in state; representative of subcontractor had traveled to New York to
negotiate contract in question, had obtained certificate to do business in state and had signed subcontracting
form agreeing that all terms of subcontract were subject to interpretation under laws of New York. LaCorte Elec.
76.30
Const. & Maintenance, Inc. v. Centron Sec. Systems, Inc., 1995, 894 F.Supp. 80. Federal Courts
Corporations' agent had sufficient contacts with New York to subject corporations and corporations' vicepresident to jurisdiction in New York under New York long-arm statute in dispute arising out of contracts executed by agent; agent made multiple visits to New York and communicated with contracting party in New
York. Paribas Corp. v. Shelton Ranch Corp., 1990, 742 F.Supp. 86. Federal Courts
79
Under New York law, defendant's contacts with state were sufficiently substantial and continuous to subject defendant to state's long-arm jurisdiction with respect to claims arising out of business relationship, including
claims under business contract, where plaintiff and defendant negotiated modification of preexisting contract
upon which suit was brought, and defendant maintained bank account for number of years and occupied townhouse unit in New York. Bower v. Weisman, 1986, 639 F.Supp. 532. Federal Courts
76.30
Texas corporation and its vice-president and executive producer were “transacting business” in New York so as
to be subject to personal jurisdiction of courts in New York, where the two corporate officers traveled from
Texas to New York and hand delivered offer to plaintiff at plaintiff's New York offices, where they discussed
and negotiated the offer in New York, and where defendants' activities in New York were purposeful activities
which significantly advanced the making of the contract at issue in the suit, though agreement was not reached
in New York. M. L. Byers, Inc. v. HRG Productions, Inc., 1980, 492 F.Supp. 827. Federal Courts
76.15;
Federal Courts
79
Where baseball player who resided in Georgia was provided with personal representation from New York offices of plaintiff, which brought action for breach of nonexclusive representation agreement, where defendant
went to New York to make television commercial for razor blades arranged by plaintiff, and where on another
occasion defendant was in New York to perform contract arranged by plaintiff in New York, defendant was subject to in personam jurisdiction under this section. Mattgo Enterprises, Inc. v. Aaron, 1974, 374 F.Supp. 20. Federal Courts
76.10
Although New York client retained Pennsylvania attorney in Massachusetts, quantity and quality of attorney's
contacts with New York in performing that agreement supported exercise of long-arm jurisdiction over attorney
in suit to recover allegedly excessive fees; attorney made no fewer than ten trips to New York in connection
with the representation, during attorney's visits to New York, which took place over nine-month period, he reviewed documents in offices of client's former attorneys and had several meetings with client and his adversar-
Page 267
ies, and approximately eight percent of attorney's bill was for work performed in New York. Scheuer v.
Schwartz (1 Dept. 2007) 42 A.D.3d 314, 839 N.Y.S.2d 485, on remand 21 Misc.3d 1143(A), 2008 WL 5191395.
13.5(11)
Courts
Evidence that Uruguayan company representative visited New York on several occasions to discuss the business
of the parties' venture supported a finding that company's contacts with New York were sufficient to confer jurisdiction under New York long-arm statute in suit between New York domiciliary and company arising from an
agreement whereby company was permitted to distribute domiciliary's goods throughout South America. War13.3(11)
naco Inc. v. Trialand S.A. (1 Dept. 2013) 102 A.D.3d 633, 959 N.Y.S.2d 69. Courts
Property owners' allegations that contractor's key personnel personally executed or caused to be submitted allegedly fraudulent payment applications representing sums owed or paid to various New York subcontractors
that, in reality, either were not due, had not been paid or were due in sum less than amount portrayed on payment applications, that they submitted numerous original invoices for payment, obtained architect's certification
thereof, secured appropriate payments from property owners and then either failed to remit certified sums to
New York subcontractors or thereafter requested that such subcontractors withdraw their original invoices and
submit revised invoices in their place, and that they hired and supervised more than one dozen subcontractors in
New York, extensively communicated with subcontractors via telephone calls and e-mails, traveled to New York
to supervise project and derived substantial financial benefit from their work thereon, were sufficient to survive
officers' motion to dismiss for lack of personal jurisdiction. Urfirer v. SB Builders, LLC (3 Dept. 2012) 95
A.D.3d 1616, 946 N.Y.S.2d 266. Pretrial Procedure
554
Delaware company's sales of delinquent customer accounts to New York debt collection agency subjected
Delaware company to personal jurisdiction of New York court pursuant to state's long-arm statute, on grounds
that it contracted to supply goods or services in New York, where 28 purchase agreements executed by agency
and company that were subject of agency's causes of action for breach of contract provided that all accounts
were to be delivered to agency by company simultaneously with payment of purchase price and that company
was to provide to agency copies of all records reasonably requested by agency, which contemplated delivery of
goods into New York, and information pertaining to accounts and all records relating thereto were delivered via
e-mail to agency's New York office. LHR, Inc. v. T-Mobile USA, Inc. (4 Dept. 2011) 88 A.D.3d 1301, 930
13.5(7)
New York court had personal jurisdiction under transacting business section of long-arm statute over local
Illinois labor union which allegedly breached contract with New York public relations firm that developed corporate campaign directed at putting pressure on New York customers of union's opponent in labor dispute,
where union representatives made no less than 12 trips to New York to assist plaintiff in making contacts with
other labor unions, organizing rallies and raising funds, union communicated with New York firm by telephone,
fax and mail, and union exercised close control over design and implementation of corporate campaign. Corporate Campaign, Inc. v. Local 7837, United Paperworkers Intern. Union (1 Dept. 1999) 265 A.D.2d 274, 697
N.Y.S.2d 37. Courts
13.5(3)
Union's active participation in corporate campaign it hired New York public relations firm to conduct against
Page 268
New York customers of union's opponent in labor dispute could be deemed “transacting business” in state for
purposes of breach of contract suit brought under long-arm statute by firm, as union's business was not limited
to representing employees in collective bargaining, but also included fund-raising, public relations and economic
pressure tactics to advance its members' interest. Corporate Campaign, Inc. v. Local 7837, United Paperworkers
13.5(3)
Intern. Union (1 Dept. 1999) 265 A.D.2d 274, 697 N.Y.S.2d 37. Courts
Personal jurisdiction existed over California purchaser of real property in New York, in connection with suit by
New Jersey vendors to compel specific performance of contract, even though communications leading to signing
of contract took place from offices in California, New Jersey or vendors' agents in Florida; under terms of contract purchaser had designated New York Secretary of State as agent for service of process, contract contemplated that purchaser would be making contacts with New York as he utilized New York realty, and state had
“overwhelming” interest in insuring that its courts and laws were applied to real property located within its borders. Black River Associates v. Newman (4 Dept. 1996) 218 A.D.2d 273, 637 N.Y.S.2d 880. Courts
13.5(2)
Exercise of personal jurisdiction over foreign corporation was proper, where its principal did not deny that at
time of transaction in question, he resided in New York and engaged in corporate business from his home address, he met with plaintiffs numerous times in Brooklyn to discuss contract and receive their payments, and
contract was executed in New York; those contacts evidenced purposeful activity in New York directed toward
and resulting in establishment of contractual relationship. Roman v. Sunshine Ranchettes, Inc. (2 Dept. 1983) 98
A.D.2d 744, 469 N.Y.S.2d 449. Courts
13.6(2)
Where stock purchase agreement was negotiated and executed and substantially performed in New York, where
plaintiff delivered a purchase price payment of $8,400,000 to defendant by means of New York banking facilities, where the securities sold pursuant to the agreement were transferred to plaintiff and his designees in New
York, where second defendant executed guaranty of other defendant's obligations secured by an escrow fund in
New York, and where second defendant was sole shareholder of first defendant, defendants had sufficient contacts with New York to support quasi in rem jurisdiction in New York. Unitech USA, Inc. v. Ponsoldt (1 Dept.
1983) 91 A.D.2d 903, 457 N.Y.S.2d 526. Courts
13.5(12); Courts
13.6(8)
Foreign corporation, a provider of continuing professional and legal education courses, had sufficient contacts
with New York to find that it “transacted business” in the state, for jurisdiction purposes, even though the seminar for which plaintiff-instructor sought reimbursement from corporation took place in Texas; corporation conducted four seminars in New York, although instructor initiated contact with corporation, corporation's president
came into New York of his own volition to meet with instructor and audit the seminar that instructor was giving,
president met with instructor for drinks the night before the seminar, though president claimed that no business
negotiations were discussed in New York, and president's auditing of seminar given by instructor was a substantial factor in bringing about the parties' agreement. Taibleson v. National Center for Continuing Educ., 2002,
13.4(3)
Nonresident defendants had minimal contacts with New York and transacted business within New York, so that
New York court could assume personal jurisdiction over defendants, where contract was entered into in New
Page 269
York to send infant plaintiff to defendants' camp outside New York, camp fee was paid in New York, and infant
plaintiff was transported from New York to camp by defendants and action for injuries to infant was closely in13.5(3);
terwoven with contract. Janklow v. Williams, 1964, 43 Misc.2d 1053, 252 N.Y.S.2d 785. Courts
13.5(4)
Courts
Pursuant to provision of New York long-arm statute allowing for personal jurisdiction over nonresident defendants transacting business within state, nonresident corporation and its majority shareholder and employee stock
ownership plan (ESOP) were amenable to personal jurisdiction in New York in acquisition company's action for,
inter alia, specific performance of contract for purchase of corporation, inasmuch as corporation, shareholder,
and ESOP transacted business in New York by soliciting company's interest there, negotiating and meeting with
company within state for several months, choosing New York law in commitment letter, sending hundreds of
telephone, facsimile, and electronic mail communications into New York, and choosing New York law in stock
purchase agreement. AIH Acquisition Corp. LLC v. Alaska Industrial Hardware, Inc., 2003, 2003 WL 21511921
76.15; Federal
, Unreported, vacated and remanded 105 Fed.Appx. 301, 2004 WL 1496864. Federal Courts
Courts
79
204. ---- Insufficient contacts, contracts, transaction of business
Italian ship designer's conduct of designing ship in Italy, and execution of contract to design ship in Italy, was
not “transaction of business” within forum, for purposes of personal jurisdiction under New York long-arm statute. Lyons v. Rienzi & Sons, Inc., 2012, 856 F.Supp.2d 501, reconsideration denied 2012 WL 1339442. Federal
Courts
86
Software developer's Canadian sales representative did not transact business in New York, within meaning of
New York's long-arm statute, and thus was not subject to personal jurisdiction in New York in developer's action against it for breach of contract, tortious interference with contract, and misappropriation of trade secrets,
even though contract had New York choice-of-law clause, developer's principal traveled to New York once to
view product and discuss possible business relationship, and representative regularly communicated with developer in New York by telephone, email, and mail, where representative negotiated, executed, and performed
contract solely in Canada, and was paid in Canada. Navaera Sciences, LLC v. Acuity Forensic Inc., 2009, 667
86
South Carolina businessman did not “transact business” in New York within meaning of long-arm statute, so as
to provide personal jurisdiction in diversity action for breach of oral agreement, by virtue of his ongoing agreement with New York plaintiffs to combine efforts to recover their investments in business entities located in
North Carolina and Florida, where agreement was not negotiated or executed in New York, was not to be performed in New York, and did not designate New York as legal forum for any disputes, notwithstanding that
businessman sent limited correspondence, invoices, or checks to one of the plaintiffs' offices in New York, and
communicated with the plaintiffs by telephone. Patel v. Patel, 2007, 497 F.Supp.2d 419. Federal Courts
76.30
District Court lacked specific personal jurisdiction over non-resident warehouse operator, under New York law,
in New York plaintiff's action against operator for breach of contract and conversion of property; even assuming
Page 270
that enforceable contract was formed between the parties, and that the parties had an ongoing business relationship, contract was not negotiated or executed in New York, there was no showing that operator ever traveled to
New York during the negotiation or formation of the contract, the operation of website accessible to New York
residents and provision of delivery services in New York by operator were not directly related to its contract
with plaintiff, the warehouse in which plaintiff stored its property was located in New Jersey, no goods were
shipped by warehouse operator to plaintiff in New York, operator did not collect New York sales tax from
plaintiff, and any conversion occurred in New Jersey. C.B.C. Wood Products, Inc. v. LMD Integrated Logistics
79
Services, Inc., 2006, 455 F.Supp.2d 218. Federal Courts
Under New York law, fabrics distributor, a North Carolina corporation, did not “transact business” in New
York, as would permit District Court to assert specific jurisdiction over distributor pursuant to New York's longarm statute, although it had an on-going contractual relationship with New York corporation that manufactured
sportswear, where its contract with manufacturer did not have a choice-of-law provision, contract was not negotiated in New York, and distributor did not visit New York for purposes of meeting with manufacturer. Wickers
79
Sportswear, Inc. v. Gentry Mills, Inc., 2006, 411 F.Supp.2d 202. Federal Courts
Virginia seller, which entered into a contract requiring it to rebuild a press in Virginia and then to ship the rebuilt press to New York buyer in Ohio and to send billing statements to New York, did not transact business in
New York so as to be subject to personal jurisdiction under New York long-arm statute; seller did not send any
representatives to New York for purposes of discussing its contractual relationship with buyer, and parties were
not engaged in an ongoing contractual relationship. Burrows Paper Corp. v. R.G. Engineering, Inc., 2005, 363
79
District court lacked personal jurisdiction over claims brought by pension fund against Turkish corporations, alleging failure to pay assessed withdrawal liability under ERISA; corporations lacked contractual relationship
with fund, and complaint lacked averments that corporations were doing business in New York or United States,
or that they were derelict in any individual obligations to fund. Smit v. Isiklar Holding A.S., 2005, 354
F.Supp.2d 260. Labor And Employment
666
Under New York long-arm statute, Swiss defendants lacked sufficient contacts with New York to subject them
to personal jurisdiction, in action brought by investors allegedly defrauded when government of Azerbaijan and
others extorted securities from the investors and then reneged on promise to privatize government-owned oil
company; defendants did not transact any business or commit any tortious acts in New York connected with the
events alleged, and they did not have an agency relationship with their putative co-conspirators. Daventree Ltd.
v. Republic of Azerbaijan, 2004, 349 F.Supp.2d 736, opinion clarified on denial of reconsideration 2005 WL
86
District court lacked personal jurisdiction over nonresident individual defendant, under New York long-arm statute, in action by plaintiff art galleries alleging that individual and defendant art galleries with which he was associated sold pieces of art plaintiffs had sold to defendant galleries before completing payment to plaintiffs; individual's only connection to state was alleged debt to resident plaintiff galleries, and individual was not subject
to contract agreeing to personal jurisdiction in New York, since he had signed contract on behalf of corporation
Page 271
only. Spanierman Gallery, PSP v. Love, 2004, 320 F.Supp.2d 108. Federal Courts
76.30
Non-resident software engineering firm did not transact business in New York, within meaning of that state's
long-arm statute, despite existence of multiple agreements to perform work for benefit of New York corporation
and sending of prototype product to corporation in New York; agreements were between firm and corporation's
California representative, agreements were executed in California and were governed by California law, firm received payment for its work in California, work was performed in California, and no representative of firm visited corporation's New York offices. Arista Technologies, Inc. v. Arthur D. Little Enterprises, Inc., 2000, 125
F.Supp.2d 641.
Fact that Massachusetts corporation unilaterally chose to forward professional services contract with Massachusetts nonprofit corporation to its president in New York was not sufficient to confer personal jurisdiction over
nonprofit corporation under New York's long arm statute. Unlimited Care, Inc. v. Visiting Nurse Ass'n of East84
ern Massachusetts, Inc., 1999, 42 F.Supp.2d 327. Federal Courts
Massachusetts nonprofit corporation that entered into professional services agreement with subsidiary of New
York corporation did not “transact business” in New York, for purposes of New York's long arm statute, given
that subsidiary was a Massachusetts corporation, contract was executed in Massachusetts, no representative of
nonprofit corporation was ever physically present in New York, agreement contained a Massachusetts choiceof-law clause, and all services were to be rendered in Massachusetts. Unlimited Care, Inc. v. Visiting Nurse
Ass'n of Eastern Massachusetts, Inc., 1999, 42 F.Supp.2d 327. Federal Courts
79
84
Taiwanese corporation did not transact business in New York for purposes of long-arm jurisdiction in breach of
contract action, though contract contained choice of law clause indicating that New York law would apply,
though it was claimed that corporation was agent of its American parent, and though plaintiffs contended that
majority of their performance under the contract was in New York where, though there were mail and wire communications between New York and Taiwan, all face-to-face negotiations occurred in Taiwan and contract was
executed in Taiwan, substantial part of performance under the contract was to occur in Taiwan in that plaintiff
was to represent defendant corporation before Taiwanese customs authorities, and any fees that defendant corporation became obligated to pay plaintiff under agreement were to be paid in Taiwanese currency to Taiwanese
bank account and it was alleged failure to make such payment that constituted breach of contract. International
Customs Associates, Inc. v. Ford Motor Co., 1995, 893 F.Supp. 1251, affirmed 201 F.3d 431, certiorari denied
120 S.Ct. 2723, 530 U.S. 1264, 147 L.Ed.2d 987. Federal Courts
86
Plaintiffs failed to make prima facie showing that district court had personal jurisdiction over German builder of
Page 272
vessel's engine under New York law which allows personal jurisdiction to be asserted over nonresident who is
engaged in such continuous and systematic course of doing business in state to warrant finding of presence in
state; there was no evidence that German manufacturer's contract with New York company or its Illinois subsidiary's activities resulted in any contacts with New York in the recent past or that further discovery would produce
evidence of those contacts but there was only evidence that manufacturer advertised in publications distributed
in New York. Volkswagen De Mexico, S.A. v. Germanischer Lloyd, 1991, 759 F.Supp. 1053, amended and su96
perseded 768 F.Supp. 1023. Federal Courts
Federal district court lacked personal jurisdiction under “transacting business” provision of New York's longarm statute [N.Y. McKinney's CPLR 302] over Alabama corporation, being sued by Delaware corporation with
principal place of business in New York for breach of contract for locating purchaser, where Alabama corporation was solicited by Delaware corporation in Alabama and executed its end of agreement in Alabama, Alabama
corporation's president's two visits to New York in connection with agreement did not pertain to Delaware corporation's location of purchaser at issue, and only activities undertaken in New York on Alabama corporation's
behalf were performed by Delaware corporation. New World Capital Corp. v. Poole Truck Line, Inc., 1985, 612
79
Illinois electrical contractor, its chief executive officer and president did not have sufficient contacts with New
York to find that they were “doing business” or “transacting business” in state within meaning of this section,
where no allegations had been made that they provided services or solicited business in New York or that they
performed any work in state, contractor's principal place of business was Illinois, subcontract was negotiated,
executed and performed in Illinois, contractor's mechanic's lien applied to Illinois property, and copies of contractor's notice and claim for mechanic's lien were sent to Illinois parties with exception of New York mortgagee
of Illinois property. Paul v. Premier Elec. Const. Co., 1983, 576 F.Supp. 384, transferred to 581 F.Supp. 721.
Federal Courts
79
California corporation that had its principal place of business in California did not have sufficient minimum contacts with New York to be subject to state's long-arm jurisdiction in declaratory judgment action in which liability insurers sought declaration that they had no duty to defend or indemnify corporation in third-party California
action, inasmuch as corporation had no contacts in New York, and New York negotiations that led to underlying
insurance policies were conducted by corporation's parent company and parent company's insurance brokerage
representative. Insurance Co. of North America v. EMCOR Group, Inc. (1 Dept. 2004) 9 A.D.3d 319, 781
N.Y.S.2d 4. Courts
13.5(14)
Under New York law, United Kingdom citizen who at times consulted for limited liability company that served
as advisor and asset manager for real estate investors undertook no affirmative acts in New York with respect to
transactions that gave rise to real estate broker and brokerage agencies' breach of contract and quantum meruit
claims, and thus, District Court lacked personal jurisdiction over him. Ross v. UKI Ltd., 2004, 2004 WL 384885
, Unreported. Federal Courts
76.30
Unincorporated association of insurers failed to show that federal district court had personal jurisdiction over
Page 273
Netherlands reinsurer, under New York long arm statute governing the transaction of any business within state
or contracting anywhere to supply goods or services within state, in lawsuit alleging breach of contract, on allegations that letter of credit was processed through New York branch of Dutch bank, or that parties' had longstanding and ongoing relationship, association had its offices in New York, and contract provided that any dispute resulting in arbitration would occur in New York. Associated Aviation Underwriters v. DAP Holding, N.V.,
94
2003, 2003 WL 21277148, Unreported. Federal Courts
205. Negotiation and execution of contract, transaction of business--In general
Under New York's long arm statute, the transacts-business standard can be satisfied where both the negotiations
and execution of a contract took place within New York. Grand River Enterprises Six Nations, Ltd. v. Pryor,
C.A.2 (N.Y.)2005, 425 F.3d 158, certiorari denied 127 S.Ct. 379, 549 U.S. 951, 166 L.Ed.2d 267. Courts
13.3(11)
Facts that defendant executed employment contract in Massachusetts and that contract was to be performed in
Massachusetts did not preclude finding of meaningful presence in New York based on substantial negotiations in
New York leading to contract's execution so as to render defendant amenable to personal jurisdiction in New
York under “transacting business” provision of this section. Lehigh Val. Industries, Inc. v. Birenbaum, C.A.2
(N.Y.)1975, 527 F.2d 87. Federal Courts
89
Courts are generally loath to uphold personal jurisdiction under “transaction in New York” prong of New York
long-arm statute if contract at issue was negotiated solely by mail, telephone, and fax without any New York
presence by defendant. Mortgage Funding Corp. v. Boyer Lake Pointe, LC, 2005, 379 F.Supp.2d 282. Courts
13.3(10)
Any contract negotiations which indicate a purposeful invocation of New York laws are transactions of business
for purposes of New York's long-arm statute, and a single transaction of business in New York may be sufficient
to support jurisdiction thereunder; it does not matter whether the negotiations are preliminary, whether the contract is executed in New York, or whether performance is contemplated for New York. SAS Group, Inc. v.
Worldwide Inventions, Inc., 2003, 245 F.Supp.2d 543. Courts
13.3(11)
New York-based contractual negotiations can by themselves constitute transaction of business in New York, sufficient to satisfy New York's long-arm statute, if they substantially advanced or were substantively important or
essential to formation of contract, so long as negotiations relate to same agreement that is the subject of
plaintiff's lawsuit. Clarendon Nat. Ins. Co. v. Lan, 2001, 152 F.Supp.2d 506. Courts
13.5(3)
Fact that producer of beauty pageant and Indiana non-profit corporation executed contract, in which corporation
agreed to host pageant, in state of New York was insufficient to establish personal jurisdiction over corporation
under New York's long-arm statute; contract was negotiated elsewhere, and contract was to be performed in Indiana. Anderson v. Indiana Black Expo, Inc., 2000, 81 F.Supp.2d 494. Federal Courts
79
Jurisdiction over nonresident defendants existed under New York's long arm statute where contractual relation-
Page 274
ship out of which cause of action between arose was negotiated in a New York restaurant and was reduced to
76.30
writing at a New York law office. Pfeffer v. Mark, 1999, 36 F.Supp.2d 556. Federal Courts
Any contract negotiations evidencing a purposeful invocation of the laws of the forum state are transactions of
business for purposes of New York's long-arm statute. Saltzman v. Louisiana Auction Exchange, Inc., 1998, 997
13.3(11)
F.Supp. 537. Courts
Significant contract negotiations in New York constitute transaction of business in the state for long-arm jurisdictional purposes, and it makes no difference whether negotiations are preliminary, or whether contract is executed in New York, or whether performance is contemplated in New York. Mayer v. Josiah Wedgwood &
76.30
Sons, Ltd., 1985, 601 F.Supp. 1523, 225 U.S.P.Q. 776. Federal Courts
Neither fact that contracts at issue were not executed in New York nor fact that certain terms of contracts may
have remained unresolved after New York meetings precluded application of New York long-arm statute. Silverman v. Worsham Bros. Co., Inc., 1984, 595 F.Supp. 959. Federal Courts
76.30
For purposes of determining whether defendant has transacted business within New York for purposes of longarm statute, strong emphasis is placed on the locale of the original contract negotiations. Guardino v. American
Sav. & Loan Ass'n of Florida, 1984, 593 F.Supp. 691. Federal Courts
76.30
Under this section, neither mere negotiation nor mere execution of contract in New York is sufficient to constitute “transaction of business” within the state, though one or the other plus other contacts may suffice. Impex
Metals Corp. v. Oremet Chemical Corp., 1971, 333 F.Supp. 771. Federal Courts
76.30
Negotiations for and conclusion of a contract within New York are unquestionably a “transaction of business”
supporting long-arm jurisdiction. Karlin v. Avis, 1971, 326 F.Supp. 1325. Federal Courts
76.30
Meaningful activity in New York sufficient to establish jurisdiction under the “transacts any business within the
state” provision of this section may be found if there were substantial negotiations in the state leading to the execution of the contract and, also, if agreement is reached on a number of essential terms of the contract and the
“critical” part of the negotiations took place in New York, jurisdiction will clearly attach. J. Baranello & Sons v.
Hausmann Industries, Inc., 1980, 86 F.R.D. 151. Federal Courts
76.15
New York courts had in personam jurisdiction over nonresident salesman under long-arm statute by reason of
salesman's action in coming into state and negotiating employment relationship out of which dispute later arose.
George Reiner & Co., Inc. v. Schwartz, 1977, 41 N.Y.2d 648, 394 N.Y.S.2d 844, 363 N.E.2d 551. Courts
13.5(3)
For purposes of this section, to “negotiate” does not merely mean haggling over and changing contract terms, it
also means to “procure agreement” by means of discussion. Abbate v. Abbate (2 Dept. 1981) 82 A.D.2d 368,
Page 275
13.3(10)
Where complaint for sum owed by foreign corporation to plaintiff pursuant to stock purchase agreement alleged
that negotiations leading up to agreements and the closing, including transfer of down payment, all occurred in
New York, personal jurisdiction over corporation was acquired. Decisionware, Inc. v. Systems Equipment
13.5(12)
Lessors, Inc. (2 Dept. 1974) 45 A.D.2d 971, 359 N.Y.S.2d 586. Courts
Written agreement executed by defendant in New York as general manager of French corporation and requiring
defendant to pay plaintiff percentage of amounts received by defendant in transfer of minority interest in corporation to person or business having branch in United States was not applicable to claims of plaintiff for commissions for bringing about arrangement between defendant and individuals having no branch in United States, and
execution in New York provided no basis for personal jurisdiction over defendant. Rene Boas and Associates v.
13.6(4)
Vernier (1 Dept. 1965) 22 A.D.2d 561, 257 N.Y.S.2d 487. Courts
Substantial negotiation in New York leading to a contract is sufficient presence to support jurisdiction under
provision of New York long-arm statute covering transaction of business in state. Taibleson v. National Center
for Continuing Educ., 2002, 190 Misc.2d 796, 740 N.Y.S.2d 772. Courts
13.3(11)
Contract negotiation in New York which substantially advances the negotiation process supports jurisdiction under provision of New York long-arm statute covering transaction of business in state. Taibleson v. National Center for Continuing Educ., 2002, 190 Misc.2d 796, 740 N.Y.S.2d 772. Courts
13.3(11)
Although a contract is executed outside New York, substantial negotiation in New York coupled with other contacts are sufficient to support jurisdiction under provision of New York long-arm statute covering transaction of
business in state. Taibleson v. National Center for Continuing Educ., 2002, 190 Misc.2d 796, 740 N.Y.S.2d 772.
Courts
13.3(11)
Where contract is made in New York and cause of action arises out of such contract, consummation of contract
in New York constitutes “transacting business” or the minimum contacts necessary to invoke personal jurisdiction. Iroquois Gas Corp. v. Collins, 1964, 42 Misc.2d 632, 248 N.Y.S.2d 494, affirmed 23 A.D.2d 823, 258
13.5(3)
A Netherlands corporation not licensed to do business in New York engaged in sufficient “transaction of business” in New York, to be subject to jurisdiction of New York court, where a 50 percent stockholder, director and
officer of corporation, individually and in behalf of corporation, executed contract in New York for purpose of
acquiring stock and stock was transferred pursuant to contract and instant action was based on the contract.
Steele v. De Leeuw, 1963, 40 Misc.2d 807, 244 N.Y.S.2d 97. Courts
13.6(8)
New York federal district court did not have personal jurisdiction over New Jersey architect under long arm statute, since work was performed in New Jersey for two New Jersey corporations for renovation of property located in New Jersey, communications were not utilized by architect to “project” himself into New York, architect
Page 276
never visited New York to negotiate contract, sign it, or discuss matters relating to contract, and unilateral activity of principal of executing contract in New York was insufficient basis for court to acquire jurisdiction over
76.30
non-domiciliary defendant. Falow v. Cucci, 2003, 2003 WL 22999458, Unreported. Federal Courts
206. ---- Place of signing contract, negotiation and execution of contract, transaction of business
Where fact that formal contract was sent unsigned to Philadelphia, so that last signature was affixed in New
York, was purely fortuitous circumstance; mere execution of contract in New York for manufacture, sale and installation of equipment did not constitute transaction of business in New York within this section permitting personal jurisdiction over nondomiciliary who transacts any business within the state; it was more meaningful that
negotiation of contract took place on numerous occasions in Philadelphia. Galgay v. Bulletin Co., Inc., C.A.2
76.15
(N.Y.)1974, 504 F.2d 1062. Federal Courts
Execution of agreement in New York, without more, does not constitute “transacting business” for purposes of
New York long-arm statute. Smit v. Isiklar Holding A.S., 2005, 354 F.Supp.2d 260. Courts
13.3(11)
Mere execution of a contract in New York is not dispositive of the question of whether a defendant has transacted business in New York such as to be subjected to jurisdiction of New York courts under this section. Dogan
v. Harbert Const. Corp., 1980, 507 F.Supp. 254. See, also, Aurea Jewelry Creations, Inc. v. Lissona,
D.C.N.Y.1972, 344 F.Supp. 179; Green & White Const. Co. v. Columbus Asphalt Corp., D.C.N.Y.1968, 293
F.Supp. 279; Electronics Devices, Inc. v. Mark Rogers Associates, 1969, 60 Misc.2d 322, 303 N.Y.S.2d 158, affirmed 63 Misc.2d 243, 311 N.Y.S.2d 413; McNellis v. American Box Bd. Co., 1967, 53 Misc.2d 479, 278
N.Y.S.2d 771. Federal Courts
76.15
Fact that contract was executed out of state was not alone fatal to long-arm jurisdiction in New York. Mattgo
Enterprises, Inc. v. Aaron, 1974, 374 F.Supp. 20. See, also, American Contract Designers, Inc. v. Cliffside, Inc.,
D.C.N.Y.1978, 458 F.Supp. 735. Federal Courts
76.30
Where there is an interstate telephone or mail contract, place of last act of execution is given little or no weight
in determining whether personal jurisdiction can be acquired over nonresident defendant by extraterritorial service of process. Harry Winston, Inc. v. Waldfogel, 1968, 292 F.Supp. 473. Federal Courts
76.30
For purpose of conferring jurisdiction over nonresident defendants, no reliance could be placed on negotiations
at alleged conference within state attended by defendants, since no proof was tendered by one having personal
knowledge thereof; fact that modification letter and agreement concerning terms of contract for sale of Alabama
real estate development were signed in New York was not sufficient to confer jurisdiction on nonresident defendants. Presidential Realty Corp. v. Michael Square West, Ltd., 1978, 44 N.Y.2d 672, 405 N.Y.S.2d 37, 376
N.E.2d 198. Courts
13.3(10)
Fact that final execution of contract takes place in New York is, in and of itself insufficient to confer jurisdiction
under this section relating to personal jurisdiction by acts of nondomiciliaries. Standard Wine & Liquor Co. v.
Bombay Spirits Co., 1967, 20 N.Y.2d 13, 281 N.Y.S.2d 299, 228 N.E.2d 367. Courts
13.5(7)
Page 277
Where defendant has signed contract outside of New York, court cannot exercise jurisdiction over that defendant
on ground that it transacted business in New York, based simply on circumstance that plaintiff signed in New
York. Libra Global Technology Services (UK) Ltd. v. Telemedia Intern., Ltd. (1 Dept. 2001) 279 A.D.2d 326,
719 N.Y.S.2d 53.
Where New Jersey corporation, which had its only place of business in that state, and individual defendant guarantor of automobile lease, a New Jersey resident, negotiated contract for lease of automobile from New York
corporation in New Jersey and the contract was signed by defendants in New Jersey to which the automobile
was delivered for use in that state, notwithstanding action of New York corporation in performing a credit check
on defendants in New York and its signing of lease agreement there, defendants did not transact business in New
York so as to be amenable to process under this section. A-Leet Leasing Corp. v. Kingshead Corp., 1973, 75
13.5(12)
Foreign corporation which signed contract in New York was “transacting business” in New York so that New
York court had jurisdiction of action against corporation on contract. Sharp Export Limited v. Mulco Products,
Inc., 1966, 50 Misc.2d 611, 270 N.Y.S.2d 787. Courts
13.5(3)
A North Carolina corporation which was not licensed to do business in New York did not engage in sufficient
“transaction of business” in New York to be subject to jurisdiction of New York court notwithstanding plaintiff
who was suing for royalties under a contract signed documents of assignment of trade name and mark and
plaintiff's patent rights to corporation in New York, where such documents were signed to fulfill requirements of
contract previously executed in North Carolina, and cause of action was for alleged breach of North Carolina
contract. Irgang v. Pelton & Crane Co., 1964, 42 Misc.2d 70, 247 N.Y.S.2d 743. Courts
13.5(3); Trademarks
1558
Vessel owner's making in New York of contract whereby he engaged plaintiff's assignor to furnish crew to deliver vessel to Virgin Islands was a sufficient transaction to bring vessel owner within scope of this section permitting court to exercise personal jurisdiction over nondomiciliaries and to permit personal service on owner in
Virgin Islands for purpose of prosecuting action for breach of the contract. Patrick Ellam, Inc. v. Nieves, 1963,
13.5(3); Process
83
207. ---- Communications into state, negotiation and execution of contract, transaction of business
The negotiation and conclusion of goods contracts through mails and by telephone by persons residing in New
York are insufficient contacts to give personal jurisdiction over foreign corporation. Agrashell, Inc. v. Bernard
Sirotta Co., C.A.2 (N.Y.)1965, 344 F.2d 583. See, also, Plaza Realty Investors v. Bailey, D.C.N.Y.1979, 484
79
Belgian financial services company's acts within State of New York, relating to three letter agreements with resident private equity firm relating to firm's proposed acquisition of controlling interest in company, did not constitute substantial activity sufficient to establish specific or general jurisdiction over company under New York
long-arm statute in firm's action against company alleging breach of contract; letter agreements had been only
Page 278
transactions between parties and contained Belgian choice of law provision, supplemental letter agreements had
been negotiated and executed in Belgium, firm had reached out to and solicited company in Belgium to pursue
acquisition of controlling interest in company, and company been organized under laws of Belgium, had its
headquarters in Belgium, and had not maintained office, bank account, or phone listings in New York. Aquiline
86
Capital Partners LLC v. FinArch LLC, 2012, 861 F.Supp.2d 378, appeal dismissed. Federal Courts
Where plaintiff's cause of action is based upon contract, negotiation of contractual terms by phone, fax or mail
by non-resident with the New York party is generally insufficient to support finding that non-resident transacted
business in New York, so as to support exercise of personal jurisdiction under New York's long arm statute.
13.5(3)
Traver v. Officine Meccaniche Toshci SpA, 2002, 233 F.Supp.2d 404. Courts
California residents who entered into sales representation agreement with New York distributor transacted business in New York, within meaning of New York long-arm statute, despite dispute over where agreement was negotiated; it was undisputed that there had been numerous telephone calls and facsimile transmissions between
parties in connection with agreement. 777388 Ontario Ltd. v. Lencore Acoustics Corp., 2001, 142 F.Supp.2d
309. Federal Courts
76.15
Nondomiciliary who was never in New York did not “transact business” in state, within meaning of New York
long arm statute, by making telephone calls, fax transmissions, and correspondence in negotiating contract involving Oklahoma oil well; although contract was executed by New York based company and nondomiciliary
initiated contact with company, communications did not project nondomiciliary into activities occurring in New
York. Palace Exploration Co. v. Petroleum Development Co., 1998, 41 F.Supp.2d 427. Federal Courts
76.15
District court could not exercise personal jurisdiction over employment contract under New York long-arm statute in breach of contract action against Idaho corporation, despite plaintiff's claim that some of contract negotiations occurred over telephone to his residence in New York and that contract was executed in New York, where
plaintiff failed to establish substance of telephone negotiations, where plaintiff failed to prove that events critical
to formation of contract were substantially performed in New York, and where terms of contract which were
subject of alleged breach were to be substantially performed outside New York. Crouch v. Atlas Van Lines, Inc.,
79
Nondomiciliaries' contacts with New York through telephone, mail, and other methods of communications during contract negotiations that occurred in New York and in London were insufficient to rise to level of
“transacting business” in order to permit assertion of personal jurisdiction over nondomiciliaries who were never
physically present in New York; transaction involved oil refinery in Germany, and there was no indication that
nondomiciliaries projected themselves into events that occurred in New York. Wilhelmshaven Acquisition Corp.
v. Asher, 1993, 810 F.Supp. 108. Federal Courts
76.15
District court lacked jurisdiction over nonresident defendants under New York long-arm statute
[N.Y.McKinney's CPLR 302(a), par. 1] allowing for jurisdiction over nonresidents that transacts business within
state or contract anywhere to supply goods or services in state where contract was initiated and negotiated over
Page 279
the telephone and did not necessitate visits or consultations in New York with executive personnel of either corporate defendant. Current Textiles Corp. v. Ava Industries, Inc., 1985, 624 F.Supp. 819. Federal Courts
76.30
Under New York law, interstate negotiations by telephone did not constitute the transacting of business sufficient to subject caller to jurisdiction of the receiver under this section. Dogan v. Harbert Const. Corp., 1980, 507
F.Supp. 254. See, also, Sayles Biltmore Bleacheries, Inc. v. Soft-Fab Textile Processors, Inc., D.C.N.Y.1977,
76.15
Maryland corporation which had entered into contract under which New York corporation would supply it with
certain drawings, plans and blueprints necessary to perform subcontract on a construction project in Washington,
D.C., which engaged in frequent telephone conversations to negotiate the contract and which sent one of its officers to New York on one occasion to discuss matters relevant to contract but which had no offices, telephones,
or employees in New York was not subject to long-arm jurisdiction in New York, on theory that it had transacted business in New York, with respect to suit for breach of the contract. Concrete Detailing Services, Inc. v.
84
Thomsson Steel Co., Inc., 1976, 411 F.Supp. 1021. Federal Courts
California corporation did not transact business in New York by placing of single interstate telephone call for
purpose of renegotiation of payment terms for purchase of machinery ordered from New York corporation. Stanat Mfg. Co. v. Imperial Metal Finishing Co., 1971, 325 F.Supp. 794. Federal Courts
84
Texas corporation, which maintained no offices, bank account, telephone listing or warehouse in New York, nor
employed state salesman, solicited orders, made sales nor conducted shipping activities in New York, but negotiated contract for joint venture with New York corporation over telephone, was not transacting business within
New York sufficiently to confer jurisdiction on New York court, and hence federal court in New York did not
have jurisdiction of case after removal to federal court. Friedr. Zoellner (New York) Corp. v. Tex Metals Co.,
1967, 278 F.Supp. 52, affirmed 396 F.2d 300. Federal Courts
79; Removal Of Cases
10
Chemical sales contracts negotiated telephonically between New York and California companies and followed
up by written sales confirmations, together with lunch meeting in New York at which the sales were discussed,
constituted business transacted in New York in manner sufficient to provide long-arm personal jurisdiction over
the California company under New York McKinney's CPLR 302(a), par. 1. CT Chemical (USA), Inc. v. Horizons Intern., Inc., 1985, 106 F.R.D. 518. Federal Courts
84
Personal jurisdiction existed over Montana Board of Investments (MBOI), under “transacts any business” provision of long-arm statute, in securities firm's suit for breach of contract for bond sale, even though Board's representative never entered state but rather conducted trade giving rise to action via phone and e-mail with firm's representative; Board should reasonably have expected to defend its actions in New York, since it was sophisticated
institutional trader that entered New York to transact business there by knowingly initiating and pursuing negotiation with firm's employee in New York that culminated in sale, and Board had engaged in numerous previous
bond sales with firm. Deutsche Bank Securities, Inc. v. Montana Bd. of Investments, 2006, 7 N.Y.3d 65, 818
Page 280
13.5(12)
Nevada company for which New York company recruited personnel did not have sufficient contact to come
within personal jurisdiction of New York court, in recruiting company's breach of contract action; New York
company initially contacted Nevada company and, after telephone negotiations, parties' written agreement was
signed by Nevada company in Nevada. Professional Personnel Management Corp. v. Southwest Medical Asso13.5(3)
ciates, Inc. (4 Dept. 1995) 216 A.D.2d 958, 628 N.Y.S.2d 919. Courts
Supreme Court lacked personal jurisdiction under long-arm statute over Florida corporation in breach of contract
action; contract was negotiated entirely by facsimile or mail, and all activities in New York relating to contract
were performed by plaintiff, and thus it could not be said that Florida corporation transacted business within
New York; moreover, since there was no allegation that Florida corporation committed a tortious act, that section of statute did not apply. Success Marketing Electronics, Inc. v. Titan Sec., Inc. (2 Dept. 1994) 204 A.D.2d
13.5(3); Courts
13.5(4)
711, 612 N.Y.S.2d 451. Courts
Where contract for resident's advertising services was negotiated by telephone or mail, no meetings were held in
forum state, and all of forum activities relating to contract were performed by resident, there was no purposeful
activity undertaken in forum state by nonresident to permit forum's exercise of personal jurisdiction over nonresident under transacting business provision of this section in resident's breach of contract action. J. E. T. Advertising Associates, Inc. v. Lawn King, Inc. (2 Dept. 1981) 84 A.D.2d 744, 443 N.Y.S.2d 745. Courts
13.5(3)
208. ---- Meetings, negotiation and execution of contract, transaction of business
Maryland information technology company did not “transact business” in New York, so as to come within New
York's long-arm jurisdiction statute in New York company's breach of contract action in federal court, even
though parties' nondisclosure agreement contained New York choice-of-law clause; New York company solicited Maryland company in Virginia, nondisclosure agreement was executed in Virginia, partnership agreement
was executed in Maryland, there was no ongoing contractual relationship between parties, Maryland company
never visited New York to negotiate or perform any act with respect to contracts, neither agreement contained
forum selection clause, contract opportunity was to be performed in Hawaii, and Maryland company's website
only passively provided information accessible to any person browsing internet and did not constitute purposeful
availment to privilege of conducting activities in New York. Zibiz Corp. v. FCN Technology Solutions, 2011,
79
New product developer's New York meeting with product marketer substantially advanced formation of parties'
contract for slap wraps, was essential to formation of contract, and advanced parties' business relationship to
more solid level, and thus supported exercise of personal jurisdiction over developer, under “transacts business”
provision of New York's long-arm statute, with respect to marketer's breach of contract claim; developer's representatives initiated meeting to try to develop business relationship with marketer, with which it had no prior
relationship, and meeting led to formation of parties' contract, notwithstanding approximately five-month delay.
SAS Group, Inc. v. Worldwide Inventions, Inc., 2003, 245 F.Supp.2d 543. Federal Courts
84
Page 281
Under New York long arm statute, manufacturer's meetings with software developer in New York were insufficient to support exercise of personal jurisdiction over manufacturer in developer's action for breach of marketing
agreement, where there were only five meetings in New York over three year period with three potential customers to assist in marketing of manufacturer's system, activities at meetings lacked any substantial nexus
between business transacted and cause of action sued on, and agreement did not require manufacturer's presence
at sales promotion meetings. United Computer Capital Corp. v. Secure Products, L.P., 2002, 218 F.Supp.2d 273.
79
Federal Courts
Purchaser/reseller of telecommunications services, a Delaware corporation with its principal place of business in
New Jersey, “transacted business” in New York, and therefore, federal court in District of New York had personal jurisdiction over purchaser in breach of contract action brought by seller of telecommunications services;
purchaser came to seller's New York office three to four times each year to discuss parties' relationship and negotiate parties' contract, and purchaser maintained checking account in New York. Worldcom Technologies, Inc.
79
v. ICC Inteleca Communications, Inc., 1999, 37 F.Supp.2d 633. Federal Courts
Under New York's long-arm statute, for meetings in New York that are subsequent to formation of contractual
relationship to confer personal jurisdiction over foreign party, meetings must be essential to the business relationship or at least substantially advance it. Kahn Lucas Lancaster, Inc. v. Lark Intern. Ltd., 1997, 956 F.Supp.
1131. Courts
13.3(11)
Taiwanese cosmetic packaging manufacturer transacted business in New York, as required for exercise of personal jurisdiction under New York's long-arm statute with regard to cosmetics supply distributor's breach of
contract claim; members of manufacturer's top management travel to New York at least six times to meet with
distributor, and during those meetings, manufacturer accepted distributor's orders for goods, products were
planned and designed, and manufacturer allegedly reconfirmed its original agreement regarding protection of
distributor's customers and products. Cosmetech Intern., LLC v. Der Kwei Enterprise and Co., Ltd., 1996, 943
86
Defendant, a television anchor reporter, transacted business in New York, within meaning of New York longarm statute, when he traveled to New York and negotiated with New York-based management agency, and later
traveled to New York for purposes of entering into management agreement, which specifically provided that his
affairs would principally be handled by three representatives, at least two of whom worked in New York; in addition, work to be done by agency pursuant to agreement was to be done in New York, with only the work
product being disseminated elsewhere. Geller Media Management, Inc. v. Beaudreault, 1996, 910 F.Supp. 135.
Courts
13.3(11)
Meeting in New York at which parties allegedly discussed reducing nondomiciliaries' equity position in German
oil refinery carried sufficient jurisdictional weight to support finding that nondomiciliaries transacted business in
New York and were subject to personal jurisdiction; nondomiciliaries' alleged repudiation of underlying agreement arose out of that meeting. Wilhelmshaven Acquisition Corp. v. Asher, 1993, 810 F.Supp. 108. Federal
Courts
86
Page 282
Participation by signatory to purchase agreement in one meeting in New York during which modification of purchase agreement was memorialized did not show that signatory had transacted business in New York, within
meaning of New York's long-arm statute. PaineWebber Inc. v. Westgate Group, Inc., 1990, 748 F.Supp. 115.
76.15
Federal Courts
New York federal district court's jurisdiction in contract action extended to defendants who came to New York
for one day in order to negotiate and sign two written contracts which were subject of action, notwithstanding
defendants' claim that they were forced to sign their contracts in New York by “an overbearing business partner
with virtual control over their economic survival”; defendants voluntarily went to New York in order to appease
plaintiff's chairman of the board, and were not forced to come to New York. New Generation Foods, Inc. v.
76.30
Spicer's Intern. Common Trust, 1987, 669 F.Supp. 599. Federal Courts
Under New York long-arm statute, federal district court in New York had personal jurisdiction over nonresident
defendant corporation which, through its president, was physically present in New York on three occasions at
meetings for negotiation of agreement in principle to contracts out of which cause of action arose. Cross &
Cross Properties, Ltd. v. Everett Allied Co., 1987, 664 F.Supp. 713. Federal Courts
79
Federal court had long-arm jurisdiction over nonresident on basis of his having transacted business in New York
where action was one for breach of fiduciary duties and employment obligations and defendant had attended
meetings at employer's headquarters in New York to negotiate salary and bonuses and to negotiate the terms of
his departure from his employment. Philipp Bros., Inc. v. Schoen, 1987, 661 F.Supp. 39. Federal Courts
76.15
Two meetings at the offices of corporation with its principal place of business in New York with officers of defendant corporation doing business in Virginia and Maryland, and agreements reached at such meetings, were
sufficient to give New York long-arm jurisdiction over Virginia corporation and its corporate officers under
New York long-arm statute, particularly since several of agreements signed by individual corporate defendants
contained provision recognizing New York State as proper forum in event of suit and that its laws were to apply,
notwithstanding fact that some of documents executed under credit agreements were signed in Virginia. Burlington Industries, Inc. v. Salem Intern. Co., 1986, 645 F.Supp. 872. Federal Courts
84
Meeting between New Mexico corporation's representatives and Delaware corporation's representatives in New
York constituted a transaction of business in New York sufficient to establish personal jurisdiction under New
York's long-arm statute, N.Y.McKinney's CPLR 302, with regard to breach of contract claim, where meeting
produced agreement in principle with respect to fundamental terms of joint venture. Rates Technology, Inc. v.
Diorio, 1986, 626 F.Supp. 1295. Federal Courts
79
Nonresident corporate president's one hour long meeting with plaintiff in Manhattan hotel room constituted insufficient ground for exercising personal jurisdiction over president under New York long-arm statute
[N.Y.McKinney's CPLR 302, 302(a), par. 1] in action alleging breach of contract and fraud arising from negotiations involved in financing purchase of Nevada radio station; meeting was one of several and merely finalized
Page 283
previously agreed to terms. Gates v. Pinnacle Communications Corp., 1985, 623 F.Supp. 38. Federal Courts
76.20
Actions of nonresident corporate officers in coming to New York for several meetings and negotiations with international financial services firm on behalf of Mississippi corporation were sufficient to constitute transacting
business for purposes of conferring jurisdiction over Mississippi corporation under the New York long-arm statute [N.Y.McKinney's CPLR 302, 302(a), par. 1.]. Thomson McKinnon Securities, Inc. v. Hamiltonian Indus76.20
tries, Inc., 1985, 610 F.Supp. 5. Federal Courts
California corporation's president's presence in New York to attend a demonstration of use of plaintiff's product
and allegedly negotiate joint venture agreement as well as for subsequent meetings for purpose of negotiations
demonstrated sufficiently purposeful activity to constitute “transaction of business” under New York long-arm
statute and therefore personal jurisdiction existed with respect to claim for declaratory judgment that parties had
not entered a joint venture agreement and that California corporation was not plaintiff's exclusive distributor and
licensee. Interface Biomedical Laboratories Corp. v. Axiom Medical, Inc., 1985, 600 F.Supp. 731, 225 U.S.P.Q.
79
146. Federal Courts
In breach of contract action, district court did not have jurisdiction, under New York's long-arm statute, over
party who visited New York in May, 1982 for purpose of discussing with plaintiff's officers possibility of becoming retailer of plaintiff's solar greenhouse units in California and who reached no written or oral agreement
with plaintiff. Sun System Prefabricated Solar Greenhouses, Inc. v. Venuti, 1984, 596 F.Supp. 1516. Federal
Courts
76.30
Under New York law, personal jurisdiction exists where defendant has entered state, even for a day, to negotiate
and execute contract on which suit is eventually brought. Chemco Intern. Leasing, Inc. v. Meridian Engineering,
Inc., D.C.N.Y.1984, 590 F.Supp. 539. Federal Courts
76.30
Under New York law governing jurisdiction by acts of nondomiciliaries, negotiation meetings within state must
either be of substantive importance in concluding contract or essential to ongoing relationship of parties for jurisdiction to be based on such meetings. I. Oliver Engebretson, Inc. v. Aruba Palm Beach Hotel & Casino, 1984,
76.30
Rhode Island corporation doing business in New York had made sufficient prima facie showing that negotiations
at meetings with Liechtenstein corporation, and possibly subsequent meetings, were material and substantial in
relation to allegedly breached contracts for sale of fabric to Liechtenstein corporation, notwithstanding entirely
incompatible versions offered by the parties as to events surrounding contracts, and consequently Rhode Island
corporation had made requisite threshold showing for assertion of personal jurisdiction over Liechtenstein corporation pursuant to this section providing for personal jurisdiction over nondomiciliaries who transact any business within state. Cranston Print Works Co. v. Brockmann Intern. A. G., 1981, 521 F.Supp. 609. Federal Courts
96
Page 284
Certain meetings between president of foreign corporation and plaintiff in New York did not constitute sufficient purposeful activity to support long-arm jurisdiction under this section in that it was not shown that the
meetings were essential to the contract relationship between the parties and since, under New York law, a meeting to discuss differences under existing contract had no jurisdictional significance. Dogan v. Harbert Const.
79
Corp., 1980, 507 F.Supp. 254. Federal Courts
Single four-hour meeting in New York City between parties' attorneys to negotiate final terms of a licensing
agreement did not constitute “transaction of business” within New York for purposes of this section where
parties had previously agreed upon all substantive business terms of the agreement by telephone and mail and
where counsel's role was limited to negotiating minor terms and reducing to writing the bargain which had
already been struck in another jurisdiction. National Spinning Co., Inc. v. Talent Network, Inc., 1979, 481
76.15
Where nonresident corporate officer traveled to New York and conducted negotiations for contract, in-personam
jurisdiction over corporation and officer was proper under this section, notwithstanding that fact that parties had
“shook hands on a partnership” in New York which may not have finalized the contract sued upon, inasmuch as
the discussions significantly advanced the making of an important contract. Bastille Properties, Inc. v. Hometels
of America, Inc., 1979, 476 F.Supp. 175. Federal Courts
79
Meeting in New York between officer of plaintiff corporation and individual representatives of defendant foreign corporation was insufficient under this section to confer on federal court personal jurisdiction over such individual defendants for purposes of plaintiff's diversity suit to recover for breach of contract and tortious interference with contractual relations, since such meeting involved only an offer by defendants to buy rights to
study conducted by plaintiff, which offer was rejected by plaintiff, and plaintiff's causes of action did not arise
out of business transacted at such meeting. Transatlantic Cement, Inc. v. Lambert Freres et Cie, 1978, 448
80
Building owners who were residents of Ohio and who attended meeting in New York with real estate broker and
prospective building tenant, a New York resident, at which broker negotiated with tenant concerning terms of
lease of building in Ohio “transacted business” in New York within meaning of this section and thus were subject to personal jurisdiction of New York state and federal courts. Mendelson v. Fleischmann, 1973, 386 F.Supp.
436. Federal Courts
76.30
Where critical meeting of the contracting parties' minds as to licensing arrangement between New York patentee
and Ohio corporate licensee was reached at a single meeting in New York, third party's causes of action with respect to alleged patent invalidity and noninfringement, patent misuse, and antitrust violations, all ultimately involving validity of patent rights, arose from the New York transaction for jurisdictional purposes, particularly
where such corporation had, through its patent counsel in New York, presented to potential customer of the third
party the idea that to buy third party's devices might infringe the patents in question. ECC Corp. v. Slater Elec.,
Inc., 1971, 336 F.Supp. 148, 171 U.S.P.Q. 119. Federal Courts
89
Assuming that London-based partnership participated in meeting and that meeting was transaction of business in
Page 285
New York, cause of action did not arise out of those activities, as required to subject partnership to personal jurisdiction in New York, absent proof that projections garnered from presentation seeking exclusive contract,
which was rejected, were nonetheless the projections subsequently provided to project owner, which helped
form basis of matter which owner in turn sued upon. Stratagem Development Corp. v. Heron Intern. N.V., 1994,
86
153 F.R.D. 535. Federal Courts
Allegations were sufficient to subject Connecticut corporation to personal jurisdiction in New York on a cause
of action arising out of the transaction of business in New York between plaintiff, a New York corporation, and
the Connecticut corporation's predecessor where the Connecticut corporation had voluntarily elected to complete
contract that had been negotiated and finalized by its predecessor at meetings in New York and the agreement
relevant to the suit had been fully negotiated at meetings in New York and where the performance required of
the New York corporation contemplated a course of activities in New York. Applied Hydro-Pneumatics, Inc. v.
Bauer Mfg., Inc. (2 Dept. 1979) 68 A.D.2d 42, 416 N.Y.S.2d 817. Corporations And Business Organizations
3288
Meetings of plaintiff and defendant in New York to discuss making of motion pictures, negotiations in New
York by their attorneys leading to execution of contract and fact that the motion pictures were advertised and exhibited in New York provided basis for personal jurisdiction over defendant, a resident of foreign country. Morrissey v. Sostar, S.A. (1 Dept. 1978) 63 A.D.2d 944, 407 N.Y.S.2d 146. Courts
13.3(10)
Investor in a Cayman Island company adduced sufficient evidence to support a prima facie showing that the
New York long-arm statute conferred personal jurisdiction over foreign investment solicitors in the investor's
fraud suit; reading the record evidence in the light most favorable to the investor, two substantive meetings took
place in New York three months prior to the time the investor wired $5 million to the defendants; moreover, the
funds solicited were wired from a New York bank account, and a contract was executed in a relatively short
period of time after a New York meeting. Druck Corp. v. Macro Fund (U.S.) Ltd., C.A.2 (N.Y.)2004, 102
Fed.Appx. 192, 2004 WL 1367926, Unreported, on remand 2004 WL 2313930. Federal Courts
86
209. ---- Preliminary negotiations, negotiation and execution of contract, transaction of business
Prospective buyer of yacht that sued boat building company and officer, stemming from purported breach of
construction and sale agreement, properly alleged that company was doing business or transacted business in
New York, as required to make prima facie showing of jurisdiction under New York long-arm statute; complaint
averred that officer lived and worked in New York, and that initial discussions concerning agreement occurred
at New York yacht club. EED Holdings v. Palmer Johnson Acquisition Corp., 2004, 387 F.Supp.2d 265. Federal
Courts
94
Preliminary negotiations conducted in New York qualify as a “transaction of business,” within meaning of longarm statute, if they have substantially advanced or were substantively important or essential to the formation of a
contract outside New York. Ainbinder v. Potter, 2003, 282 F.Supp.2d 180. Courts
13.3(11)
Under New York law, court could not exercise long-arm jurisdiction over foreign corporation, in action by lim-
Page 286
ited partner which claimed that general partner had conducted unauthorized transfers of his interest in partnership; only allegation that corporation transacted business in New York was that a representative was present to
negotiate the purchase of limited partner's interest in partnership, which sale never took place and did not have a
connection to claims in limited partner's complaint. JN Realty LLC v. Estate of Marvin, 2003, 268 F.Supp.2d
79
231. Federal Courts
On issues of contract formation and subsequent breach, jurisdiction over a non-resident defendant under New
York's long-arm statute may well be available if essential negotiations between the parties occurred in New
York, even if those negotiations were only preliminary. Anderson v. Indiana Black Expo, Inc., 2000, 81
13.5(3)
Canadian court which entered judgment sought to be enforced in New York obtained valid in personam jurisdiction over American company in action on accounts receivable, under both New York law and Quebec law, even
though initial stage of negotiations between American company and Canadian supplier took place in New York,
where contract was concluded in Quebec as the last act necessary to bind the Canadian company took place
there upon written confirmation of American company's purchase order, and cause of action arose in Quebec because American company's nonpayment caused prejudice to Canadian company in its place of business in Quebec. Canadian Imperial Bank of Commerce v. Saxony Carpet Co., Inc., 1995, 899 F.Supp. 1248, affirmed 104
F.3d 352. Judgment
830.1
Italian corporation was not transacting business in New York for purposes of exercise of long-arm jurisdiction
by virtue of its participation in New York discussions about possible formation of joint venture; contract negotiations in New York were not “substantially advanced” or “essential to” formation of joint venture which was in
exploratory phase at time of meeting and was not advanced by meeting. ICC Primex Plastics Corp. v. LA/ES
Laminati Estrusi Termoplastici S.P.A., 1991, 775 F.Supp. 650. Federal Courts
86
Preliminary negotiations in New York that are essential to existence of a contract provide sufficient contact to
establish New York's personal jurisdiction over a nondomiciliary defendant. Mayer v. Josiah Wedgwood &
Sons, Ltd., 1985, 601 F.Supp. 1523, 225 U.S.P.Q. 776. Federal Courts
76.30
Where precontract New York meetings appeared to be important in defining terms of final contract and structuring relationship among parties, such meetings provided fair basis for exercise of long-arm jurisdiction under
New York law. Silverman v. Worsham Bros. Co., Inc., 1984, 595 F.Supp. 959. Federal Courts
76.30
Where defendant in breach of contract action has engaged in substantial preliminary negotiations on the contract
in New York, there can be little doubt that the cause of action “arises from” the business transacted in New
York, for purposes of this section, even though the last act marking the formal execution of the contract occurred outside the forum. Xedit Corp. v. Harvel Industries Corp., Fidelipac, 1978, 456 F.Supp. 725. Federal
Courts
76.10
Where though contract in issue might have been formally executed in state of Ohio, defendants Ohio citizens,
Page 287
were present in New York on at least two occasions in connection with the matter and were actively involved in
at least preliminary, if not all of, contractual negotiations in New York, defendants had transacted business within New York and personal jurisdiction could properly be exercised over them under this section. Moser v. Boat76.15
man, 1975, 392 F.Supp. 270. Federal Courts
While it was unclear where or when alleged oral agreement between plaintiff, a New York corporation, and defendant, a Delaware corporation, concerning an exclusive distributorship was consummated, defendant was
“transacting business within state” for jurisdictional purposes where it was clear that preliminary negotiations
regarding defendant's granting plaintiff a distributorship and also plaintiff's desire to sell defendant's films were
conducted in New York on at least three occasions. Potter's Photographic Applications Co. v. Ealing Corp.,
79
Where person, on behalf of himself and Florida resident, made trips to New York for preliminary negotiations
leading to execution of contract for sale of stock in corporation in which they were equal shareholders and
where Florida resident actively participated at closing in New York and derived substantial monetary gain, he
had “engaged in purposeful activity” in New York in connection with causes of action alleged, in action based
on claims of fraudulent activities by such persons, violation of Securities Act of 1933, 15 U.S.C.A. § 77a et seq.,
and breach of warranty, so as to permit personal jurisdiction to be obtained over him. Milton R. Barrie Co., Inc.
v. Levine (1 Dept. 1976) 54 A.D.2d 642, 387 N.Y.S.2d 627. Courts
13.5(12)
210. ---- Benefit and protection of laws, negotiation and execution of contract, transaction of business
Federal district court sitting in New York could exercise personal jurisdiction, consistent with due process, over
Florida software producer, alleged to have breached contract to pay New York financial services provider for introducing it to business partner; by negotiating contract in New York, software producer availed itself of opportunity to conduct business activities in New York, and could anticipate being haled into court in state. HD Brous
& Co., Inc. v. Synthesys Secure Technologies, Inc., 2002, 229 F.Supp.2d 191. Constitutional Law
3965(5);
Federal Courts
79
Federal district court sitting in New York had personal jurisdiction over Canadian officers of Canadian corporation acting as agent for New York distributor of syndicated newspaper features, in breach of contract action; officers availed themselves of privilege of conducting activities in New York by negotiating contract in state, by
carrying on extensive telephone and mail communications regarding contract, and by remitting hundreds of
thousands of dollars to distributor in New York. United Feature Syndicate, Inc. v. Miller Features Syndicate,
86
Where foreign corporate defendant's agent acted in New York to further contract that was being negotiated, defendant purposefully availed itself of privilege of conducting activities in New York, and was subject to suit in
its courts; moreover, fact that negotiations bore no fruit did not alter nature and quality of defendant's actions
through its agent. Mayer v. Josiah Wedgwood & Sons, Ltd., 1985, 601 F.Supp. 1523, 225 U.S.P.Q. 776. Federal
Courts
86
Page 288
By signing guaranty of payment of lease obligations in New York, president and principal shareholder of lessee
purposefully availed himself of privileges and laws of New York so as to warrant exercise of personal jurisdiction under New York long-arm statute in lease assignee's action for alleged default on payment obligations.
Chemco Intern. Leasing, Inc. v. Meridian Engineering, Inc., D.C.N.Y.1984, 590 F.Supp. 539. Federal Courts
76.30
Defendant who negotiated for and executed contract in Florida and performed all services under contract in Florida did not purposefully invoke benefits and protection of New York laws, and, thus, defendants lacked sufficient minimum contacts to support exercise of jurisdiction in compliance with due process. Finesurgic Inc. v.
Davis (2 Dept. 1989) 148 A.D.2d 414, 538 N.Y.S.2d 568, appeal dismissed in part, denied in part 74 N.Y.2d
3965(5); Courts
13.5(3)
781, 545 N.Y.S.2d 101, 543 N.E.2d 744. Constitutional Law
211. ---- Particular contracts, negotiation and execution of contract, transaction of business
Transacts-any-business requirement of New York personal jurisdiction long arm statute was satisfied, in lawsuit
brought by other cigarette manufacturers, importers, and wholesalers regarding various states' enactment of escrow statutes and certification statutes, by prior extensive negotiations in New York between attorneys-general
over model escrow legislation language and interconnected master settlement agreement (MSA), and ultimate
execution of agreement in New York, to settle civil suit against major tobacco companies which sought compensation for, inter alia, healthcare costs. Grand River Enterprises Six Nations, Ltd. v. Pryor, C.A.2 (N.Y.)2005,
425 F.3d 158, certiorari denied 127 S.Ct. 379, 549 U.S. 951, 166 L.Ed.2d 267. Federal Courts
79
Even assuming that employment contract which was executed by one defendant in Massachusetts and which was
to be performed in that state was negotiated in New York by defendant's agent, such negotiations, which involved no more than adding names and addresses of employees and employers in that salary, term of office, and
very form of contract had already been fixed, were insufficient to render defendant amenable to personal jurisdiction in New York under “transacting business” provision of this section. Lehigh Val. Industries, Inc. v. Birenbaum, C.A.2 (N.Y.)1975, 527 F.2d 87. Federal Courts
89
Bahamian corporation's negotiations with New York contractor for contractor to install irrigation system at golf
course located in the Bahamas was insufficient to constitute transaction of business within New York by Bahamian corporation, as required for court to exercise specific jurisdiction over corporation under New York law;
although small number of telephone conversations regarding the contract negotiation did take place between the
Bahamas and New York, bulk of the negotiations regarding contract took place in the Bahamas, corporation executed the contract in the Bahamas, and no representative of corporation ever traveled to New York to meet with
anyone regarding the contract. Sandoval v. Abaco Club on Winding Bay, 2007, 507 F.Supp.2d 312. Federal
Courts
86
Colorado auction house and an officer of the house were not amenable to personal jurisdiction under the
“transacted business” provision of the New York long-arm statute, in an action brought by a collector arising
from the defendants' failure to complete an auction transaction; the collector learned of defendants' auction
through an advertisement in a national publication and subsequently contacted the defendants in Colorado, and
the alleged contract was negotiated and executed in Colorado. Hutton v. Priddy's Auction Galleries, Inc., 2003,
Page 289
76.15
In action initially brought in state court by film producer, stemming from failed film projects, producer alleged
that non-domiciliary actor conducted “transactions of business” within New York state, as required to establish
personal jurisdiction over breach of contract, breach of fiduciary duty and unjust enrichment claims under New
York law; producer alleged that actor agreed to star in three films at producer's New York residence, that production contract stating that actor would appear in fourth film was prepared and finalized in New York, and that
actor took subsequent steps in New York in furtherance of all four contracts. Nasso v. Seagal, 2003, 263
94
Virginia municipality transacted business in New York for purposes of exercise of personal jurisdiction over it
under New York long-arm statute in breach of contract suit brought by New York software developer, where
city solicited bid from developer, maintained contacts with New York via telephone and mail before and after
execution of contract, entered into ongoing contractual relationship, employed developer to provide on-going
services in New York for its benefit in Virginia, and forwarded payments to New York, notwithstanding that
city executed contract in Virginia and its personnel had little physical presence in New York. Creative Socio76.15
Medics, Corp. v. City of Richmond, 2002, 219 F.Supp.2d 300. Federal Courts
Affiliates of New York parent corporations “transacted business” in New York within the meaning of New
York's long-arm statute by placing numerous telephone calls and sending many letters and facsimiles to New
York to negotiate several key agreements, entering into several agreements which containing not only New York
choice-of-law provisions, but New York forum selection and consent to jurisdiction and venue clauses and assumed obligations of contracts or leases requiring specific performance on the part of affiliates in New York.
ESI, Inc. v. Coastal Corp., 1999, 61 F.Supp.2d 35. Federal Courts
82
Michigan media research corporation did not transact business in New York, as would subject it to personal jurisdiction there, by entering into contract with New York public opinion research company to conduct three studies, even if parties had an ongoing relationship; contract was negotiated and executed in either Michigan or
Illinois and contained no New York choice of law clause. Roper Starch Worldwide, Inc. v. Reymer & Associates, Inc., 1998, 2 F.Supp.2d 470. Federal Courts
79
Lawyer and his wife who entered into letter agreement with individual who purchased forged paintings from
auction exchange “transacted business” in New York and, therefore, were subject to personal jurisdiction in
New York in purchaser's action for breach of letter agreement; lawyer and his wife initiated settlement discussions and entered into an agreement that required them to refund purchaser's monies to him in New York, and
acted as guarantors for debts of exchange. Saltzman v. Louisiana Auction Exchange, Inc., 1998, 997 F.Supp.
537. Federal Courts
76.30
Under New York long-arm statute, federal district court sitting in New York lacked personal jurisdiction over
nonresident corporate officer of Texas corporation in contract action brought by Pennsylvania corporation, even
though certain contracts signed by parties provided that New York law would apply; allegations against officer
did not relate to documents signed in New York or to financing arrangements allegedly negotiated in New York,
Page 290
in any direct manner, and officer was not bound by documents signed in New York, except ownership agreement, which did not in any way give rise to the action. Packer v. TDI Systems, Inc., 1997, 959 F.Supp. 192. Fed76.30
eral Courts
Federal district court sitting in New York lacked personal jurisdiction over New Jersey customer in breach of
contract suit brought by New York mortgage broker; negotiations were carried out by telephone, facsimile machine or correspondence, with executive of customer making only one visit to broker's office, found by court to
be for social purposes. Premier Lending Services, Inc. v. J.L.J. Associates, 1996, 924 F.Supp. 13. Federal Courts
76.30
New York merchant banking firm's activities on behalf of corporation seeking sale or merger did not amount to
transaction of business in state and, therefore, did not, under New York's long-arm statute, entitle court to exercise personal jurisdiction over corporation in firm's action for breach of contract; nothing in contract or in nature
of work to be performed required any activity in state, no one from corporation visited New York during negotiation of contract, and only postcontract visit to state did not result in sale of business. Lamco Group, Inc. v. Uni79
versal Life Ins. Co., 1995, 903 F.Supp. 612. Federal Courts
Missouri corporation did not “transact business” in New York within meaning of New York's long-arm statute
when it agreed to sell its assets to corporation that had its principal place of business in New York; deal was
closed and all relevant agreements were signed outside of New York, all assets purchased were located outside
of New York, and all negotiations were conducted by telephone and were held at locations outside of New York.
Benjamin Sheridan Corp. v. Benjamin Air Rifle Co., 1993, 827 F.Supp. 171. Federal Courts
79
New York law firm established prima facie case for personal jurisdiction over Bermuda and Canadian corporations in action to recover legal fees where firm alleged that negotiations which took place in New York substantially advanced and were essential to formation of its agreement with corporations. Milgrim Thomajan & Lee
P.C. v. Nycal Corp., 1991, 775 F.Supp. 117. Federal Courts
94
Under New York law, alleged infringer of patent could not assert personal jurisdiction over patent holder based
upon failed contract negotiations which took place in New York, as two brief negotiation sessions in New York
could not be deemed transaction of business. Kash 'n Gold, Ltd. v. ATSPI, Inc., 1988, 690 F.Supp. 1160, 7
U.S.P.Q.2d 1383. Patents
288(4)
Publishing company had sufficient contact with New York to subject it to personal jurisdiction of that state's
courts where publishing company contracted with New York company to distribute one of its books, which led
plaintiff magazine into negotiations with defendant publishing company for right to serialize book, and suit concerned alleged breach of serialization contract. Ligi v. Regnery Gateway, Inc., 1988, 689 F.Supp. 159. Federal
Courts
84
Plaintiff sufficiently alleged transaction of business in New York under New York long-arm statute to withstand
motion to dismiss for lack of personal jurisdiction where plaintiff alleged that corporation's president, who was
Page 291
citizen of Pennsylvania, was acting in his individual capacity when he negotiated ticket stock purchase agreement and where plaintiff alleged that president made numerous phone calls in New York to negotiate agreement.
94
Catsimatidis v. Innovative Travel Group, Inc., 1986, 650 F.Supp. 748. Federal Courts
In regard to claim against Delaware corporation for breach of employment contract, unrefuted allegations that
the corporation had engaged in negotiations, which consisted of two interviews of plaintiff in New York by officers of corporation and which led to further interviews and plaintiff being eventually offered the job and that
significant contract terms were negotiated and tentatively agreed on in New York established a prima facie case
of corporation having “transacted business” in New York within meaning of this section providing that court
could exercise personal jurisdiction over nondomiciliaries transacting any business within the state. Bialek v.
94
Racal-Milgo, Inc., 1982, 545 F.Supp. 25. Federal Courts
Personal jurisdiction over foreign corporate defendant did not exist under “transacting business” test of this section by virtue of occasional visits made to New York by defendant's officers to confer with plaintiff and its customers where contracts giving rise to litigation were negotiated and executed in California and no claim was
made that subsequent New York meetings were essential to ongoing relationship of parties or were not otherwise for plaintiff's sole benefit. Pneuma-Flo Systems, Inc. v. Universal Machinery Corp., 1978, 454 F.Supp. 858
. Federal Courts
84
While contract which defendants claimed plaintiff breached was signed in California and was by its terms governed by California law relating to contract “made” within that state, in personam jurisdiction could nevertheless
be found in New York if defendants engaged in substantial negotiations or activities relating to its performance
in New York. Columbia Pictures Industries, Inc. v. Schneider, 1977, 435 F.Supp. 742, affirmed 573 F.2d 1288.
Federal Courts
74
Foreign corporation transacted business in New York, within this section, conferring jurisdiction upon the
United States district court for the Southern District of New York in diversity action, both where officers of corporation conducted negotiations in New York with respect to the contract out of which the action subsequently
arose, and where corporation had bestowed upon two commission companies and their distributors exclusive
right to sell its products in New York and its advertisement appeared in two trade publications published in New
York. Montclair Electronics, Inc. v. Electra/Midland Corp., 1971, 326 F.Supp. 839. Federal Courts
299
Where nondomiciliary defendant was a resident of New York at time the agreement sued upon was negotiated in
New York by parties which selected New York law as that governing contract and nondomiciliary defendant
was represented by New York counsel during negotiations, there was sufficient contact with New York to authorize extraterritorial service in diversity action brought in federal court in New York under this section.
Uniroyal, Inc. v. Heller, 1974, 65 F.R.D. 83. Process
62
New York's long-arm statute did not give district court power to exercise jurisdiction over nonresident defendants, even if plaintiff-condominium purchasers bought condominium unit pursuant to contract with original developer that purchasers negotiated and executed while in New York and developer was in California; developer
was not party to action. Harder v. Desert Breezes Master Ass'n, 1996, 192 B.R. 47. Federal Courts
76.1
Page 292
Non-resident defendant was subject to long-arm jurisdiction in New York, where defendant had transacted business in New York through an agent by negotiating and entering into a contract with plaintiffs in New York for a
musical performance in Canada. Owens v. Freeman (3 Dept. 2009) 65 A.D.3d 731, 884 N.Y.S.2d 791, leave to
13.5(3)
appeal dismissed 13 N.Y.3d 855, 891 N.Y.S.2d 688, 920 N.E.2d 93. Courts
Trial court had personal jurisdiction over borrower, a Florida resident, in lender's action against borrower seeking repayment of loan; borrower transacted business within New York when he negotiated subject loan agree13.5(12)
ment with lender. Bui v. Berman (1 Dept. 2008) 48 A.D.3d 287, 851 N.Y.S.2d 175. Courts
Personal jurisdiction existed over Montana investment board in bank's contract action pursuant to New York
long-arm statute allowing for jurisdiction over nondomiciliary which transacted business within state that was
connected with claim, even though bank initiated negotiations and board's investment officer was not in New
York when deal was consummated, given that officer, who was sophisticated trader/investor, rejected bank's
proposed bond swap and subsequently reinitiated negotiations that led to parties' cash deal, and that negotiating
such major transactions was principal aspect of board's mission; board could not evade jurisdiction through use
of technology which allowed it to purposefully conduct transaction with New York bank without actually appearing in New York. Deutsche Bank Securities, Inc. v. Montana Bd. of Investments (1 Dept. 2005) 21 A.D.3d
90, 797 N.Y.S.2d 439, affirmed 7 N.Y.3d 65, 818 N.Y.S.2d 164, 850 N.E.2d 1140, certiorari denied 127 S.Ct.
13.5(13)
832, 549 U.S. 1095, 166 L.Ed.2d 665. Courts
Where contract involving steel frames and doors, to be manufactured by New York corporation in New York
and shipped to Washington, D.C. firm, was executed in New York, written change orders were executed in New
York and New York conferences were attended by firm's representatives, including its president, and the firm
subsequently sent a draft to attorney for New York corporation, the nonresident firm had sufficient contact with
New York to support in personam jurisdiction over it, on theory of transacting business in the state, in suit
arising out of the contract; contract had substantial connection with New York and maintenance of suit did not
offend traditional notions of fair play and substantial justice. Atlantic Metal Products, Inc. v. Blake Const. Co.,
13.5(3)
Under New York law, holding company organized under laws of Gibraltar and officer/director of United Kingdom limited liability company that served as advisor and asset manager for real estate investors transacted business in New York, as would warrant District Court's assertion of personal jurisdiction over them, where they
played active role in negotiating transactions, and consented to their agents' execution of transactions. Ross v.
UKI Ltd., 2004, 2004 WL 384885, Unreported. Federal Courts
76.30
Federal district court in New York did not have personal jurisdiction over foreign university under “transacting
business” provision in long arm statute, on allegations that patentee was New York citizen and he entered into
contract with English citizen, since contract was negotiated and entered into by both parties in England and contract did not contain choice of law provision. Pieczenik v. Dolan, 2003, 2003 WL 23095553, Unreported. Federal Courts
76.35
Federal district court sitting in New York did not have specific personal jurisdiction over nonresident corpora-
Page 293
tion, under New York long-arm statute providing for jurisdiction when cause of action arose from defendant doing business in state; no part of negotiations leading to $20 million loan underlying suit took place in New York,
and debtors' subsequent trip to state to discuss aspects of loan did not count. Daewoo Intern. (America) Corp. v.
84
Orion Engineering and Service, Inc., 2003, 2003 WL 22400198, Unreported. Federal Courts
Non-resident breach of contract defendant's alleged negotiation and execution of subject contract in New York
was sufficient to satisfy transaction of business provision of New York long-arm statute. Fashion Fragrance &
76.15
Cosmetics v. Croddick, 2003, 2003 WL 342273, Unreported. Federal Courts
212. Communications into state, transaction of business--In general
Even if some individuals received kickbacks from cash wired into and out of Argentine defendant's account at a
New York bank, defendant did not “transact business” in New York within meaning of New York long-arm statute so as to confer personal jurisdiction over him in suit arising from misconduct the wrongful receipt of benefits
by Argentine employee of Argentine subsidiary of New York-based broadcaster and a United States citizen
residing in Argentina; events giving rise to suit involved exclusively persons located outside New York and
harmed a non-New York corporation, and the central fraud was the improper transfer of ownership of the shares
in an Uruguayan corporation to Argentine-based kickback recipients. DirecTV Latin America, LLC v. Park 610,
86
LLC, 2010, 691 F.Supp.2d 405. Federal Courts
While electronic communications, telephone calls or letters, in and of themselves, are generally not enough to
establish jurisdiction under New York long-arm statute, they may be sufficient if used by defendant deliberately
to project itself into business transactions occurring within New York state. Credit Suisse Securities (USA) LLC
v. Hilliard, 2007, 469 F.Supp.2d 103. Courts
13.3(11)
Only in cases where telephone call or communication clearly shows that defendant intends to project itself into
ongoing New York commerce, such as where defendant directly conducts market activity or securities transactions in New York over telephone, do New York courts sustain long-arm jurisdiction based on telephone calls or
facsimile transmissions alone. Credit Suisse Securities (USA) LLC v. Hilliard, 2007, 469 F.Supp.2d 103. Courts
13.3(10); Courts
13.5(12)
Communications into New York will only be sufficient to establish personal jurisdiction under transacting business portion of long-arm statute if they were related to some transaction that had its center of gravity inside New
York, into which a defendant projected himself. Maranga v. Vira, 2005, 386 F.Supp.2d 299. Courts
13.3(11)
While telephone and mail contacts generally do not constitute “transacting business” under New York's longarm statute, in certain circumstances jurisdiction may be predicated on a transaction conducted by means of telephone calls, faxes, and the acts of an in-state agent; physical presence in the state is not required. Loudon
Plastics, Inc. v. Brenner Tool & Die, Inc., 1999, 74 F.Supp.2d 182. Courts
13.3(11)
Telephone and mail contacts generally do not constitute “transacting business” within meaning of New York
Page 294
long arm statute allowing jurisdiction over nondomiciliary who transacts business in state. Palace Exploration
13.3(11)
Co. v. Petroleum Development Co., 1998, 41 F.Supp.2d 427. Courts
Generally, telephone or written communications do not provide basis for personal jurisdiction, on a transactingbusiness theory under New York long-arm statute, unless they are used by defendant to actively participate in
business transactions in New York. Levisohn, Lerner, Berger & Langsam v. Medical Taping Systems, Inc.,
13.3(11)
Long-arm jurisdiction lies over commercial actors and investors using electronic and telephonic means to project
themselves into New York to conduct business transactions. Vandermark v. Jotomo Corp. (4 Dept. 2007) 42
13.3(11)
A.D.3d 931, 839 N.Y.S.2d 670. Courts
While electronic communications, telephone calls, or letters, in and of themselves, are generally not enough to
establish personal jurisdiction under New York long-arm statute extending jurisdiction over nondomiciliary that
transacts business within state, they may be sufficient if used by defendant deliberately to project itself into
business transactions occurring within state. Deutsche Bank Securities, Inc. v. Montana Bd. of Investments (1
Dept. 2005) 21 A.D.3d 90, 797 N.Y.S.2d 439, affirmed 7 N.Y.3d 65, 818 N.Y.S.2d 164, 850 N.E.2d 1140, certiorari denied 127 S.Ct. 832, 549 U.S. 1095, 166 L.Ed.2d 665. Courts
13.3(11)
Telephone calls and letters by non-resident defendants to plaintiffs in New York did not constitute substantial
relationship between transaction and plaintiffs' claims, so as to support exercise personal jurisdiction over defendants under long-arm statute. Edelman v. Taittinger, S.A. (1 Dept. 2002) 298 A.D.2d 301, 751 N.Y.S.2d 171.
Courts
13.3(10)
Sending faxes and making telephone calls to state were not, without more, activities tantamount to “transacting
business” in state within meaning of long-arm statute. Granat v. Bochner (1 Dept. 2000) 268 A.D.2d 365, 702
13.3(11)
Personal jurisdiction, under the “transacting business” section of long-arm statute, may be predicated on a transaction conducted by means of telephone calls, faxes, and the acts of an in-state agent. Courtroom Television
Network v. Focus Media, Inc. (1 Dept. 1999) 264 A.D.2d 351, 695 N.Y.S.2d 17. Courts
13.3(11)
Long-arm jurisdiction may not be based merely on order telephoned or mailed from out-of-state, on rendition of
services in state, or on mere shipment of goods from out-of-state, but these elements combined supported jurisdiction over nonresidents who shipped valuable painting to plaintiff in New York for restoration, dealing with
plaintiff through phone calls and letters. Margaret Watherston, Inc. v. Forman, 1972, 70 Misc.2d 539, 334
N.Y.S.2d 35, affirmed 73 Misc.2d 875, 342 N.Y.S.2d 744. Courts
13.3(10)
Telephone calls and correspondence sent into New York, by a non-domiciliary defendant who is outside New
York, generally are insufficient to establish personal jurisdiction under the transacting business provision in
New York's long arm statute. Landau v. New Horizon Partners, Inc., 2003, 2003 WL 22097989, Unreported.
Courts
Page 295
13.3(11)
213. ---- Sufficiency of communications into state, transaction of business
Bank's two telephone calls and one mailing into State of New York did not confer personal jurisdiction over
bank, on district court, to entertain claims by two guarantors for declaratory judgment that they were only secondarily liable on their guarantees. Fiedler v. First City Nat. Bank of Houston, C.A.2 (N.Y.)1986, 807 F.2d 315.
78
Federal Courts
Under New York law, German investment firm's discussions with another German firm regarding German funds
did not qualify as “transacting business” in New York, even though other firm had New York subsidiary, where
discussions were sporadic contacts by telephone or electronic mail that never resulted in any formal business arrangement, and there was no nexus among defendant's investments in New York-based funds, visits by its managing directors to New York, and claims at issue in lawsuit. NewMarkets Partners LLC v. Oppenheim, 2009,
82; Federal Courts
86
638 F.Supp.2d 394, reconsideration denied 2009 WL 3631030. Federal Courts
District court's exercise of personal jurisdiction, pursuant to New York long-arm statute, over limited liability
company (LLC) sued by guardian for investor, alleging multimillion-dollar scheme to defraud investor, comported with due process; complaint averred that LLC, through investment promoter, came into New York to meet
with investor and consistently telephoned and sent documents into New York for purpose of wrongfully obtaining investor's money. Allen ex rel. Allen v. Devine, 2009, 670 F.Supp.2d 164. Constitutional Law
3965(7);
Federal Courts
79
Connecticut supplier of helicopter component to buyer in Finland never purposefully availed itself of benefits
and privileges of New York law in relation to its sale of component, and thus was not “transacting business” in
New York as to sale within meaning of New York's long-arm statute, where price quotation for component was
submitted via internet in Connecticut, e-mail purchase order was completed by buyer via internet in Finland and
was received by supplier in Connecticut, no part of transaction took place in New York, none of supplier's New
York sales related to component transaction, and supplier's responsibility for transporting component from Connecticut to New York for shipment was of minor or accidental importance. Copterline Oy v. Sikorsky Aircraft
Corp., 2007, 649 F.Supp.2d 5. Federal Courts
79
Under “transacting business” section of New York's long-arm statute, district court had personal jurisdiction
over supervisor and acting general counsel for plaintiff's former employer in disparate treatment action; supervisor and acting general counsel communicated with plaintiff in her New York City home from where she
worked, giving her the allegedly discriminatory work assignments via telephone, e-mail, and fax, and discussions concerning her complaints about her work assignments took place through the same channels. International
Healthcare Exchange, Inc. v. Global Healthcare Exchange, LLC, 2007, 470 F.Supp.2d 345. Federal Courts
76.35
Although New York's long-arm jurisdiction may be invoked even if defendant never enters New York, telephone
calls and correspondence sent into New York by non-domiciliary defendant who is outside New York generally
Page 296
are insufficient to establish personal jurisdiction. Beatie and Osborn LLP v. Patriot Scientific Corp., 2006, 431
13.3(3)
Minimum contacts requirement for exercise of personal jurisdiction over out-of-state interexchange telecommunications carriers (IXCs) was satisfied by transaction of business within state that was sufficient to satisfy state's
long-arm statute. New York Access Billing, LLC v. ATX Communications, Inc., 2003, 289 F.Supp.2d 260. Fed76.35
eral Courts
Railroad car lessor's renewals of lease terms via telephone and facsimile communications after lessee had moved
its offices to New York constituted sufficient contact with New York to subject lessor to personal jurisdiction of
federal court sitting in that forum, for purpose of lessor's action to enforce purchase option contained in lease.
Toledo Peoria & Western Ry. Corp. v. Southern Illinois Railcar Co., 2000, 84 F.Supp.2d 340. Federal Courts
76.30
Massachusetts nonprofit corporation's telephone contacts with New York corporation, regarding collection of
debt owed to New York corporation's subsidiary, were insufficient to confer jurisdiction over nonprofit corporation under New York's long arm statute, since those telephone contacts were initiated by New York corporation.
Unlimited Care, Inc. v. Visiting Nurse Ass'n of Eastern Massachusetts, Inc., 1999, 42 F.Supp.2d 327. Federal
Courts
84
Under New York long-arm statute, activities of other officers of company that law firm agreed to represent on
intellectual property law issues, in making telephone calls, sending telefaxes and mailing letters to law firm at its
New York offices regarding pending legal settlement and firm's entitlement to fees, did not rise to level of
“transacting business” in state, and did not permit court to exercise personal jurisdiction over these officers, on a
transacting-business theory, in lawsuit brought by firm against officers for allegedly participating in fraudulent
conveyances designed to defeat firm's right to fees. Levisohn, Lerner, Berger & Langsam v. Medical Taping
Systems, Inc., 1998, 10 F.Supp.2d 334. Federal Courts
76.15
Telephone calls placed and letters mailed from outside state into New York were not committed “within the
state” for purposes of New York's long-arm statute permitting personal jurisdiction over defendant who in person of through agents commits “tortious act within the state.” Cleft of the Rock Foundation v. Wilson, 1998, 992
76.25
Oklahoma oil company and its officers did not transact business in New York, and thus were not subject to personal jurisdiction in New York court in action based on company's alleged failure to assign interests in oil well
located in Oklahoma in accordance with purchase of 20% working interest in well; initial solicitation occurred
in Oklahoma, neither of officers ever traveled to New York in connection with sale, and use of telephone and
mail to communicate with representative of purchaser while he was in New York was insufficient to demonstrate that business was transacted there. Longwood Resources Corp. v. C.M. Exploration Co., Inc., 1997, 988
79; Federal Courts
81
Page 297
California buyer's telephone and fax contact with New York seller and broker did not constitute “transacting
business” in New York, within meaning of that state's long arm statute. Worldwide Futgol Associates, Inc. v.
13.3(11); Federal Courts
76.15
Event Entertainment, Inc., 1997, 983 F.Supp. 173. Courts
Telephone calls made and letters sent to New York by Florida attorney for foreign individual who claimed interest in painting were not enough to bring them within parameters of New York's long-arm jurisdiction under
“commits a tortious act within the state” section of long-arm statute. Carlson v. Cuevas, 1996, 932 F.Supp. 76.
86
Federal Courts
Under New York law, Mexican hotel corporation was not transacting business within New York and district
court lacked personal jurisdiction over it; telephone conversations and telegraph communications alone were insufficient to establish transaction of business particularly where terms of contract in dispute were negotiated in
86
Mexico. Tripmasters, Inc. v. Hyatt Intern. Corp., 1988, 696 F.Supp. 925. Federal Courts
Under New York law, district court lacked personal jurisdiction over foreign citizen who acted as agent for New
York corporation, despite numerous telephone conversations, facsimile transmissions to corporation from agent,
agent's receipt of pay which originated in New York, and delivery of agent's work for review in New York,
where work was not performed in New York and agent had not visited state on business; agent did not transact
business within New York. Lawrence Wisser and Co., Inc. v. Slender You, Inc., 1988, 695 F.Supp. 1560. Federal Courts
76.20
Out-of-state law firm's correspondence with in-state client did not amount to conduct within state so as to
provide personal jurisdiction over law firm in federal court pursuant to state's long-arm statute, where only connection within state was telephone and letters from law firm to client and fees paid by client to law firm. Smith
v. Morris & Manning, 1986, 647 F.Supp. 101, transfer granted 657 F.Supp. 180. See, also, Mayes v. Leipziger,
C.A.N.Y.1982, 674 F.2d 178. Federal Courts
85
Former employer, who made no assertions of specific transactions occurring in New York but merely alleged
use of mails and telephone by former employee to communicate with employer in New York, failed to establish
basis for jurisdiction over former employee under this section permitting exercise of jurisdiction over a defendant who transacts any business within state when those acts or transactions give rise to claim asserted. Pavlo v.
James, 1977, 437 F.Supp. 125. Federal Courts
76.15
Mail and telephonic jewelry transactions with New York residents were insufficient, under this section, to satisfy “doing business” test or “transaction of business” test. Lichtenstein v. Jewelart, Inc., 1982, 95 F.R.D. 511.
Federal Courts
76.15
Where Florida corporate lender had no connections with New York and original loan transaction was entirely in
Florida, mere fact that lender in Florida telephoned and wrote to borrower in New York with respect to renewal
and mailed him from Florida renewal note and loan agreement which borrower executed in New York did not
constitute “transaction of business” in New York, within this section, so as to authorize, under rule 4(e), Federal
Page 298
Rules of Civil Procedure, 28 U.S.C.A., out-of-state service of process on lender in borrower's action under the
Truth in Lending Act, 15 U.S.C.A. § 1601 et seq. Bernard v. Richter's Jewelry Co., 1971, 53 F.R.D. 606. Cor3271
porations And Business Organizations
Clients who were residents of California and retained a New York attorney to represent one of the clients in an
action brought in an Oregon federal court, “transacted business” in New York within meaning of the long-arm
statute, although they never entered New York; clients purposefully attempted to establish an attorney-client relationship in New York and directly participated in that relationship via telephone calls, faxes and e-mails that
they projected into New York over many months. Fischbarg v. Doucet, 2007, 9 N.Y.3d 375, 849 N.Y.S.2d 501,
13.5(11)
Out-of-state clients transacted business with attorney in New York, and, thus, clients were subject to jurisdiction
under the long-arm statute for purposes of determining fee dispute, although clients never came to New York
and attorney represented clients in copyright infringement action in federal court in Oregon, where clients made
frequent phone calls to attorney in New York, clients sent e-mails and fax communications to attorney in New
York, clients made their payments to attorney's office in New York, and all of attorney's actions on clients' behalf took place in New York. Fischbarg v. Doucet (1 Dept. 2007) 38 A.D.3d 270, 832 N.Y.S.2d 164, affirmed 9
13.5(11)
Florida real estate developer's acts of faxing executed marketing agreements to broker in New York and of making a few telephone calls were not purposeful acts constituting the transacting of business in New York, as required to support exercise of jurisdiction under long-arm statute, consistent with due process, but rather were
merely attempts to contact broker. Kimco Exchange Place Corp. v. Thomas Benz, Inc. (2 Dept. 2006) 34 A.D.3d
433, 824 N.Y.S.2d 353, leave to appeal denied 9 N.Y.3d 803, 840 N.Y.S.2d 762, 872 N.E.2d 875. Courts
13.3(11)
Under “transacting business” section of long-arm statute, the requisite contacts with the state may take place by
mail or telephone; physical presence in the state is not required. Courtroom Television Network v. Focus Media,
13.3(11)
State courts could exert personal jurisdiction over defendant in negligence claim, even though defendants never
entered state; defendants had transacted business within state by use of telephones, faxes, and wire transfers, and
through agents, and claims were sufficiently related to business transacted that it would not be unfair to subject
defendants to suit. Camel Investments Ltd. v. Transocean Capital (2 Dept. 1993) 195 A.D.2d 533, 600 N.Y.S.2d
471. Courts
13.5(4); Courts
13.6(2)
Fact that regional theater company from West Virginia called actress in New York and mailed contract to New
York did not, standing alone, confer jurisdiction over company pursuant to transacting business prong of longarm statute with respect to actress' breach of contract action; such communications are commonplace. Berk v.
Theatre Arts of West Virginia, Inc., 1993, 157 Misc.2d 696, 598 N.Y.S.2d 418. Courts
13.5(3)
Page 299
Non-resident sales representative exchange of correspondence, facsimiles, and phone calls with New York manufacturer of fiber optic cable, in facilitation of sales to non-resident buyer, constituted sufficient transaction of
business to satisfy New York long arm statute. Remee Products Corp. v. Sho-Me Power Elec. Co-op, 2002, 2002
76.15
WL 31323827, Unreported. Federal Courts
214. ---- Telephone calls, communications into state, transaction of business
New York federal district court lacked personal jurisdiction over individual defendants sued in Bivens action,
where two defendants never lived in, worked in, travelled to or through, or visited state of New York, and third
defendant had only been in state of New York twice, and telephone call allegedly made from federal agency's
office in Dallas to federal agency's office in New York was unconnected to individual defendants. Robinson v.
76.35
Overseas Military Sales Corp., C.A.2 (N.Y.)1994, 21 F.3d 502. Federal Courts
If the purpose of telephone calls to New York is for the defendant to actively participate in business in New
York, then they alone may support a finding of jurisdiction under “transact business” provision of New York
long-arm statute, but, where a defendant's contacts with New York consist of telephone calls, fax transmissions,
and correspondence in connection with the negotiation of a contract that has a center of gravity well outside the
state, there is no personal jurisdiction under the statute. DirecTV Latin America, LLC v. Park 610, LLC, 2010,
13.3(11)
Argentine employee of Argentine subsidiary of Delaware parent did not “transact business” in New York within
meaning of New York long-arm statute when he made intra-company phone calls to New York in connection
with formation of a joint venture between parent and Argentine business for purposes of creating a Delaware
limited liability company (LLC) to broadcast sports programming in Latin American countries; no part of the
contract was to take place in New York, and employee's only purpose was to discuss the joint venture transaction with an official of parent who was located in New York. DirecTV Latin America, LLC v. Park 610, LLC,
86
Although telephone communications between parties may, in a few instances, suffice as transacting business, for
the purpose of the exercise of specific personal jurisdiction under New York law, in such a scenario, the defendant must actively project itself into New York, thereby availing itself of the business privileges and protections
of the state. C.B.C. Wood Products, Inc. v. LMD Integrated Logistics Services, Inc., 2006, 455 F.Supp.2d 218.
Courts
13.3(11)
Generally, telephone calls and other communications sent into New York by an out of state defendant, taken
alone, are insufficient to establish a transaction of business in New York for purposes of New York's long-arm
statute. Hughes v. BCI Intern. Holdings, Inc., 2006, 452 F.Supp.2d 290. Federal Courts
76.15
Although telephone communications between parties may suffice as “transacting business” for purposes of New
York long-arm statute, defendant must actively project itself into New York, thereby availing itself of business
privileges and protections of state. Mortgage Funding Corp. v. Boyer Lake Pointe, LC, 2005, 379 F.Supp.2d 282
. Courts
13.3(11)
Page 300
Telephone calls and correspondence sent into New York by a non-domiciliary defendant who is outside New
York generally are insufficient to establish personal jurisdiction under New York long-arm statute. Burrows Pa13.3(3)
per Corp. v. R.G. Engineering, Inc., 2005, 363 F.Supp.2d 379. Courts
Personal jurisdiction existed over out-of-state interexchange telecommunications carriers (IXCs) under New
York long-arm statute in suit by competitive local exchange carriers (CLECs) to recover access charges incurred
by IXCs in handling toll calls that either originated or terminated in state; IXCs transacted business in state by
handling toll calls originating or terminating in state and claim arose out of that transaction of business. New
76.35
York Access Billing, LLC v. ATX Communications, Inc., 2003, 289 F.Supp.2d 260. Federal Courts
Personal jurisdiction can rarely be based solely on defendant's telephone calls into state, and only if purpose of
calls is for defendant to actively participate in business in state, can they alone support finding of personal jurisdiction under “transacts any business” provision of New York's long arm statute. Whitaker v. Fresno Telsat,
13.3(3); Courts
13.3(11)
Inc., 1999, 87 F.Supp.2d 227, affirmed 261 F.3d 196. Courts
Telephone calls from client's attorney to client's former attorney requesting his consent to sale of client's partnership interest to nonresident corporation, even if made on behalf of corporation, did not constitute transacting
business within state and, thus, could not establish jurisdiction over corporation under “transacts any business”
provision of New York's long arm statute. Whitaker v. Fresno Telsat, Inc., 1999, 87 F.Supp.2d 227, affirmed
261 F.3d 196. Federal Courts
76.20
Under New York law, phone calls that seek to insure fulfillment of contract terms do not project a defendant into New York sufficiently to confer personal jurisdiction over defendant under long-arm statute. Roper Starch
Worldwide, Inc. v. Reymer & Associates, Inc., 1998, 2 F.Supp.2d 470. Courts
13.3(10)
Provision of long-arm statute conferring personal jurisdiction over defendant who transacts business within state
where business transacted bears substantial relationship to cause of action asserted is not satisfied by showing
that offer placed inside New York by telephone is accepted by out-of-state party. Forgash v. Paley, 1987, 659
76.15
Under New York law, federal district court did not have jurisdiction over out-of-state principal, based on
plaintiff agency's activities within the state, where principal's only contact with agent was by telephone and telex. Metropolitan Air Service, Inc. v. Penberthy Aircraft Leasing Co., 1986, 648 F.Supp. 1153. Federal Courts
76.20
Defendant did not transact business in New York with respect to sale of property in Chicago where the only contacts with New York were telephone calls with an intermediary and a mailgram sent to that intermediary. Advance Realty Associates v. Krupp, 1986, 636 F.Supp. 316. Federal Courts
76.15
There was no statutory basis for personal jurisdiction in New York federal court over San Francisco purchaser of
certain Denver office buildings of Missouri real estate investment trust where there were no allegations that pur-
Page 301
chaser violated Securities Exchange Act, 15 U.S.C.A. § 78aa, or aided and abetted such a violation and where
only contact with New York was a single telephone call made by one of purchaser's trustees, a Canadian resident, with one of the trustees of real estate investment to arrange a meeting which took place in Toronto. Bolton
133
v. Gramlich, 1982, 540 F.Supp. 822. Securities Regulation
Calls and telexes between Spanish steel producer's sales manager in New York and chief executive officer of
buyer, which transacted business in Louisiana and Tennessee, regarding placing of order for purchase of steel
did not amount to either “minimal contacts” nor purposeful activity within state of New York which would subject buyer to in personam jurisdiction under this section. Empresa Nacional Siderurgica, S. A. v. Glazer Steel
81
Co., 1980, 503 F.Supp. 1064. Federal Courts
Where defendant, against whom recovery was sought for amount bid on two paintings at auction in state, though
never present in state, had received and transmitted bids over open telephone line and thus had been active participant in auction, defendant had “transacted business within state” within this section and thus was subject to
jurisdiction of state courts. Parke-Bernet Galleries, Inc. v. Franklyn, 1970, 26 N.Y.2d 13, 308 N.Y.S.2d 337, 256
N.E.2d 506. Courts
13.3(11)
Allegations that Ohio resident made a phone call to New York for the purpose of purchasing a diamond, and
subsequently transferred payment to New York, were insufficient to support court's exercise of personal jurisdiction over him under the “doing business” test, for purposes of action alleging that the Ohio resident purchased a
diamond belonging to plaintiff and sold without plaintiff's consent; allegations failed to establish continuous and
systematic contacts with New York. Stengel v. Black (1 Dept. 2006) 28 A.D.3d 401, 813 N.Y.S.2d 428. Courts
13.5(2)
Five phone calls made by California domiciliary over the course of three days to plaintiff's office in New York
to place orders for the purchase of stock was not sufficient activity to support an exercise of personal jurisdiction by the courts of New York over California domiciliary. Barington Capital Group, L.P. v. Arsenault (1 Dept.
2001) 281 A.D.2d 166, 721 N.Y.S.2d 58. Courts
13.5(12)
New York electricity wholesaler's calls to foreign wholesaler's Texas office in an attempt to obtain electricity
from foreign wholesaler after it cancelled contract with New York wholesaler's Midwest supplier were insufficient to establish basis for exercise of personal jurisdiction over foreign wholesaler. Niagara Mohawk Energy
Marketing, Inc. v. Entergy Power Marketing Corp. (4 Dept. 2000) 270 A.D.2d 872, 706 N.Y.S.2d 794. Courts
13.5(3)
Several telephone conversations Pennsylvania resident had at his home in Pennsylvania with account representative of stockbroker at its New York office did not constitute sufficient contact with New York to confer personal jurisdiction of New York court over the Pennsylvania resident in broker's action for alleged breach of agreement to purchase stock. L. F. Rothschild, Unterberg, Towbin v. McTamney (1 Dept. 1982) 89 A.D.2d 540, 452
N.Y.S.2d 630, affirmed 59 N.Y.2d 651, 463 N.Y.S.2d 197, 449 N.E.2d 1275. Courts
13.5(12)
Page 302
Assuming resident art dealer pleaded causes of action other than defamation of character, single telephone communication made by resident appraisal association to French citizen in France relating to nonauthenticity of art
work sold by dealer as authentic did not qualify as transaction by French citizen of business within state or commission by French citizen of tortious act within state whether in person or through agent within meaning of
13.3(11);
long-arm provision. Findlay v. Duthuit (1 Dept. 1982) 86 A.D.2d 789, 446 N.Y.S.2d 951. Courts
Courts
13.5(4)
Telephone calls from Washington to New York for purpose of retaining lawyer were, by themselves, insufficient
basis for personal jurisdiction over nonresident under this section. Perlman v. Martin, 1972, 70 Misc.2d 169, 332
13.5(11)
Federal district court did not have personal jurisdiction over employees of Equal Employment Opportunity
Commission (EEOC), since they did not live or work in New York, they did not own, use, or possess property in
New York, and they did not transact or solicit business in New York, and even though EEOC employees spoke
with plaintiff over the telephone, any telephone contact that they had with New York plaintiff in investigating
his claims did not rise to the level sufficient to establish personal jurisdiction in New York. Caraveo v. Nielsen
Media Research, Inc., 2003, 2003 WL 169767, Unreported, report and recommendation adopted in part, rejected
in part 2003 WL 1745064, affirmed 96 Fed.Appx. 738, 2004 WL 608590. Federal Courts
76.5
215. ---- Mailings, communications into state, transaction of business
Patentee “transacted business” in New York for purposes of “transacts any business” provision of New York's
long-arm statute, where patentee sent “cease and desist” letter to retailer of weight loss products in attempt to
settle legal claims arising from retailer's alleged infringement of his patented weight loss product, and his New
York attorney engaged in persistent campaign to secure competitor's investment in patentee's product. PDK
Labs, Inc. v. Friedlander, C.A.2 (N.Y.)1997, 103 F.3d 1105, 41 U.S.P.Q.2d 1338. Patents
288(7)
“Cease and desist” letter sent by nonresident defendant to plaintiff alleging that latter's use of trademark violated
federal copyright and trademark law did not constitute a “transaction of business” within New York sufficient to
support exercise of long-arm jurisdiction over defendant under this section providing that a defendant who transacts any business within state or contracts anywhere to supply goods or services in the state subjects himself to
personal jurisdiction. Beacon Enterprises, Inc. v. Menzies, C.A.2 (N.Y.)1983, 715 F.2d 757. Copyrights And Intellectual Property
79; Trademarks
1558
Mailing of single letter to corporation's shareholders residing in New York, conveying recommendation of corporation's board of directors that shareholders tender their shares to company that was acquiring corporation, did
not establish that either corporation or its then-chief executive officer (CEO) was transacting business within
New York within meaning of provision of New York's long-arm statute governing specific personal jurisdiction.
Duravest, Inc. v. Viscardi, A.G., 2008, 581 F.Supp.2d 628. Federal Courts
79
Under New York law, songwriter had not transacted business in state, for purpose of establishing jurisdiction
over songwriter in declaratory judgment action by publishing company, by sending multiple cease and desist let-
Page 303
ters to publishers; letters did not specify state as appropriate forum for resolution of dispute or otherwise seek
protection or benefit of state's laws. Fort Knox Music, Inc. v. Baptiste, 2001, 139 F.Supp.2d 505, 59 U.S.P.Q.2d
76.15
1067, appeal dismissed 257 F.3d 108, 59 U.S.P.Q.2d 1538. Federal Courts
Nondomiciliary executive of Puerto Rican bank did not “transact business” within New York within meaning of
New York long arm statute by merely sending letter to plaintiff in New York which solicited continued use of
76.15; Fedbank's services in Puerto Rico. Daly v. Castro Llanes, 1998, 30 F.Supp.2d 407. Federal Courts
76.20
eral Courts
Georgia telephone directory publisher-corporation did not transact business in New York within meaning of
New York long-arm statute, for purposes of personal jurisdiction in contract dispute with New York certified
marketing representative (CMR), though publisher solicited business by forwarding literature to New York CMRs, where the mailings were sent to CMRs across the nation and were designed to further publisher's southeastern directories, mailings had nothing to do with the formation of the contract or the dispute thereunder, contract
was drafted in Georgia and involved no negotiations in New York, and stated that it was to be construed by the
laws of Georgia, and publisher maintained no offices, employees, property, or mailing addresses in New York.
National Telephone Directory Consultants, Inc. v. Bellsouth Advertising & Pub. Corp., 1998, 25 F.Supp.2d 192.
81
Federal Courts
Delaware trade association-corporation did not transact business in New York within meaning of New York
long-arm statute, for purposes of personal jurisdiction in contract dispute between a publisher member and a certified marketing representative (CMR) member, though association had distributed to New York and other CMRs various literature designed to promote its services as a facilitator of telephone directory pages advertising
between publishers and CMRs, where association was not a party to the disputed contract, its mailings had nothing to do with formation of, or the disputed definition in, the contract, no officer or employee of association had
ever met with plaintiff CMR in New York, and association did not have any property in New York and had never held a convention in New York. National Telephone Directory Consultants, Inc. v. Bellsouth Advertising &
Pub. Corp., 1998, 25 F.Supp.2d 192. Federal Courts
81
Under New York law, defendant manufacturers' act of sending to shareholder, in New York, quarterly report
which allegedly contained mark infringing plaintiff's trademarks was insufficient to permit exercise of jurisdiction under statute allowing for jurisdiction over one who commits tortious act within New York, as mailing of
report was not intended to derive business or profits. Taurus Intern. Inc. v. Titan Wheel Intern. Inc., 1995, 892
F.Supp. 79, 34 U.S.P.Q.2d 1600. Federal Courts
84
Federal district court in New York had personal jurisdiction over Indiana attorney who allegedly violated Fair
Debt Collection Practices Act (FDCPA) by sending debt collection notice to debtor's employer in New York;
distant forum imposed on attorney was triggered by his own action in projecting his allegedly improper debt collection effort into New York. Sluys v. Hand, 1993, 831 F.Supp. 321. Federal Courts
76.35
Under this section governing personal jurisdiction by acts of nondomiciliaries, mailing copies of letters from out
of state to New York did not amount to “transaction of business,” so as to confer personal jurisdiction over Mis-
Page 304
souri corporation in New York corporation's action for amount due for fabric processing work it performed in
North Carolina for Missouri corporation. Sayles Biltmore Bleacheries, Inc. v. Soft-Fab Textile Processors, Inc.,
79
Massachusetts resident was not subject to personal jurisdiction in New York under “doing business” provision
of New York's long-arm statute based on her letters to New York authorities expressing her personal dissatisfaction with health care rendered to her stepfather in New York's Veterans Administration system. Kim v. Dvorak
13.5(1)
Legislature in enacting this section has not extended to all commercial contracts the insurance contract principle
that mailing a contract into state is sufficient basis for assumption of jurisdiction by state with respect to policy.
13.5(3)
A. Millner Co. v. Noudar, Lda. (1 Dept. 1966) 24 A.D.2d 326, 266 N.Y.S.2d 289. Courts
New York Supreme Court did not have jurisdiction under New York's long arm statute over security broker's
noncommercial customers who were nondomiciliaries of New York; customers' only contact with the state, their
mailing of claims statements to New York City, was a requirement and not a voluntarily chosen benefit and
quality and nature of this contact was not such that it was reasonable and fair to require them to conduct a defense in this forum. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Barnum, 1994, 162 Misc.2d 245, 616
13.5(12)
New York federal district court did not have personal jurisdiction over New Jersey lawyer under long arm statute, although attorney caused summons and complaint in New Jersey state action to be sent by certified mail to
New York office; lawyer was only admitted to New Jersey bar and he only practiced out of offices in New Jersey, and contact by mail did not provide basis for jurisdiction since lawyer did not intend to “project” himself into events taking place in New York. Falow v. Cucci, 2003, 2003 WL 22999458, Unreported. Federal Courts
76.30
216. ---- Video conference, communications into state, transaction of business
Foreign corporation did not “project” itself into New York for jurisdictional purposes via 45-minute videoconference, during which parties negotiated portion of their contract for provision of worldwide telecommunications services. Libra Global Technology Services (UK) Ltd. v. Telemedia Intern., Ltd. (1 Dept. 2001) 279
A.D.2d 326, 719 N.Y.S.2d 53.
217. Totality of circumstances, transaction of business--In general
Although all factors are relevant in determining whether a party has “transacted business” in New York within
meaning of New York's long-arm statute, no one factor is dispositive and other factors may be considered; ultimate determination is based on the totality of the circumstances. Sunward Electronics, Inc. v. McDonald, C.A.2
(N.Y.)2004, 362 F.3d 17, 69 U.S.P.Q.2d 2002. Courts
13.3(11)
To determine whether party has “transacted business” in New York, within meaning of that state's long-arm stat-
Page 305
ute, courts must look at totality of circumstances concerning party's interactions with, and activities within, the
state. Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, C.A.2 (N.Y.)1999, 171 F.3d 779, on remand
13.3(11)
2001 WL 893362. Courts
For non-domiciliary defendant to become subject to personal jurisdiction under “transacting business” prong of
New York's long-arm statute, no single event or contact connecting defendant to New York need be demonstrated; rather, the totality of all of defendant's contacts with New York must indicate that the exercise of juris13.3(11)
diction would be proper. Grasso v. Bakko, 2008, 570 F.Supp.2d 392. Courts
In determining whether a nondomiciliary defendant has transacted business within New York, as required for
exercise of jurisdiction, the district court must consider the totality of all defendant's contacts with the forum
76.15
state. Katz v. Mogus, 2007, 538 F.Supp.2d 538. Federal Courts
Finding of personal jurisdiction under New York long-arm statute must be based upon totality of circumstances.
Mortgage Funding Corp. v. Boyer Lake Pointe, LC, 2005, 379 F.Supp.2d 282. Courts
13.3(1)
When assessing questions of personal jurisdiction under New York long-arm statute in situations where contracts are executed outside state, court must conduct examination of any other purposeful acts on defendant's behalf which in aggregate may demonstrate that defendant has purposefully availed himself of benefits and protections of state. Mortgage Funding Corp. v. Boyer Lake Pointe, LC, 2005, 379 F.Supp.2d 282. Courts
13.3(10)
A non-domiciliary transacts business within meaning of “transacting business” provision of New York long arm
statute when he purposefully avails himself of the privilege of conducting activities within New York, thus invoking the benefits and protections of its laws; courts look to the totality of the circumstances to determine
whether the defendant has engaged in such purposeful activity and require a substantial nexus between the business transacted and the cause of action sued upon. Posven, C.A. v. Liberty Mut. Ins. Co., 2004, 303 F.Supp.2d
391. Courts
13.3(11)
To determine whether a party has “transacted business” within the meaning of New York's long-arm statute,
courts look at the totality of the circumstances and consider: (1) whether the defendant has an ongoing contractual relationship with a New York corporation; (2) whether the contract was negotiated or executed in New
York; (3) whether the contract contains a New York choice-of-law, forum-selection or consent to jurisdiction
clause; and (4) whether the contract requires notices or payments to be sent to New York or requires supervision
by the corporation in New York. ESI, Inc. v. Coastal Corp., 1999, 61 F.Supp.2d 35. Courts
13.3(11)
The ultimate conclusion as to whether a party in a contract action has “transacted business” in New York, within
meaning of New York's long arm statute, should be based on the totality of the circumstances. Unlimited Care,
Inc. v. Visiting Nurse Ass'n of Eastern Massachusetts, Inc., 1999, 42 F.Supp.2d 327. Courts
13.3(11)
In determining whether nondomiciliary's contacts are of the appropriate nature, as required by New York long
Page 306
arm statute allowing jurisdiction over nondomiciliary who transacts business in state, court must examine totality of circumstances. Palace Exploration Co. v. Petroleum Development Co., 1998, 41 F.Supp.2d 427. Courts
13.3(11)
In deciding whether out-of-state defendant is “transacting business” and subject to personal jurisdiction in New
York on cause of action arising from those transactions, district court must examine totality of defendant's activities with New York. Daniel v. American Bd. of Emergency Medicine, 1997, 988 F.Supp. 127, disapproved in
76.15
later appeal 428 F.3d 408. Federal Courts
When determining whether business was transacted in New York for purposes of New York long-arm statute,
federal district court had to examine totality of Florida bank's activities within New York to see if purposeful
acts had been performed in New York, albeit acts preliminary or subsequent to execution of a contract or loan.
79
Guardino v. American Sav. & Loan Ass'n of Florida, 1984, 593 F.Supp. 691. Federal Courts
In determining whether District Court in New York has jurisdiction over foreign corporation, District Court cannot simply isolate each contact of defendant with New York and say that each such contact does not constitute
doing of business; rather, it must look to cumulative significance of all activities of foreign corporation within
state in order to determine whether corporation is doing business within state for jurisdictional purposes, and in
doing so it must make use of so much of judicial notice as is required to understand general commercial settings
and particular relationships of parties and their dispute. Bulova Watch Co., Inc. v. K. Hattori & Co., Ltd., 1981,
97
The ultimate question, in determining whether a nonresident defendant's activities in New York constitute the
transaction of business within the meaning of this section, is whether, on the facts of the case, the totality of defendant's New York connections evidence purposeful activity by which defendant could be deemed to have invoked the benefits and protection of New York law in satisfaction of the dictates of due process. Chemical Bank
v. Major Realty Corp., 1977, 439 F.Supp. 181. See, also, Trafalgar Capital Corp. v. Oil Producers Equipment
Corp., D.C.N.Y.1983, 555 F.Supp. 305. Federal Courts
76.15
In deciding whether it can exercise personal jurisdiction over non-domiciliary, on theory that non-domiciliary
has transacted business in state, New York courts look at totality of circumstances to determine whether nondomiciliary engaged in some purposeful activity in New York in connection with matter in controversy. In re
Med-Atlantic Petroleum Corp., 1999, 233 B.R. 644. Courts
13.3(11)
218. ---- Particular cases, totality of circumstances, transaction of business
Totality of New York contacts of former chief executive officer (CEO) for New York law firm's former client
did not support exercise of personal jurisdiction over former CEO under “transacts business” prong of New
York's long-arm statute in law firm's action for, inter alia, tortious interference with contract, even though
former CEO participated in negotiation of retainer agreement, communicated with firm respecting litigations undertaken on former client's behalf, and allegedly served as former client's sole negotiator when former client
failed to pay firm pursuant to retainer agreement, given that former CEO was California resident, had no prop-
Page 307
erty or bank account in New York, and did not travel to New York while employed by former client, and that
most of law firm's performance under retainer agreement occurred in California. Beatie and Osborn LLP v. Pat76.20
riot Scientific Corp., 2006, 431 F.Supp.2d 367. Federal Courts
Promissory notes underlying alleged default were issued in satisfaction of investment vehicle's obligations to
corporation's former directors in respect of debtor-in-possession (DIP) loan, which was negotiated in New York,
and, thus, under the totality of the circumstances, directors' claims on notes arose out of investment vehicle's
transaction of business in New York, for purposes of New York long arm statute. Antaeus Enterprises, Inc. v.
79
SD-Barn Real Estate, LLC, 2005, 396 F.Supp.2d 408. Federal Courts
Totality of debtor's contacts with New York rendered debtor amenable to federal court's jurisdiction under section of New York's long-arm statute granting court jurisdiction over any nondomiciliary who transacts business
within state or contracts any where to supply goods or services in state; debtor agreed to make payment on
promissory notes in New York, mailed its prospectus to creditors in New York in an attempt to solicit funds,
procured loans through series of telephone calls to creditors in New York, allegedly prepared requisite documentation for loans and mailed these papers, along with executed notes, to creditors in New York, and continued
to reap benefits of lasting financial relationship with New York creditors through series of communications relating to loans that spanned at least a seven-year period. Snyder v. Madera Broadcasting, Inc., 1995, 872 F.Supp.
79
Under this section, where president of Illinois corporation conducted contract negotiations in New York with officials of New York corporation and negotiations determined specifications, terms of delivery, terms of payment, shipping requirements and, particularly, price of paper to be furnished to Illinois corporation for fulfillment of government contract and president accepted award of government contract while in New York, totality
of purposeful activity in New York amounted to transaction of business in state so as to make Illinois corporation subject to personal jurisdiction of New York courts. Northland Paper Co. v. Mohawk Tablet Co., 1967, 271
79
Defendant transacted business within New York so as to satisfy New York's long-arm statute and due process
where it used New York as shipping port, New York laboratory tested its product's quality, it entered a number
of agreements with New York company, contract specified that New York law governed, defendant allegedly
sold New York company $200,000 worth of merchandise, received orders for over 67,000 cans of instant coffee,
and conducted business with New York company by mail, phone and facsimile, and defendant then nurtured and
continued to reap the benefits of lasting financial relationship with the company through a series of communications relating to the sale of products that spanned at least two years, with daily communication at times. Melkaz
Intern. Inc. v. Flavor Innovation Inc., 1996, 167 F.R.D. 634. Constitutional Law
76.15
219. Torts, generally, transaction of business
Although “transacts business” provision of New York's long-arm statute is typically invoked in breach of contract cases, it applies as well to actions in tort when supported by a sufficient showing of facts. Sunward Electronics, Inc. v. McDonald, C.A.2 (N.Y.)2004, 362 F.3d 17, 69 U.S.P.Q.2d 2002. Courts
13.5(4)
Page 308
New York client's causes of action for breach of contract, unfair business practices, tortious interference with
contract, professional malpractice, and defamation against Florida law firm arising from firm's representation of
client in personal injury action in Florida did not arise out of any alleged acts taken by firm in New York, for
purposes of New York's long-arm statute, where firm's alleged tortious acts all took place in Florida. Sea Tow
85
Services Intern., Inc. v. St. Paul Fire & Marine Ins. Co., 2011, 779 F.Supp.2d 319. Federal Courts
Fact that Florida railway company transported passengers and goods in and out of New York and maintained
sales agents there did not establish that company was subject to personal jurisdiction in former employee's personal injury action against it in New York; there was no nexus between such conduct and personal injury claim,
which was based on unsafe conditions at railway's Florida worksite. Swindell v. Florida East Coast Ry. Co.,
83
1999, 42 F.Supp.2d 320, affirmed 201 F.3d 432. Federal Courts
Under New York law, widow of individual who died from asbestos-related illness could not establish that any
business that Canadian manufacturer of asbestos products conducted in New York was substantially related to
individual's exposure to manufacturer's asbestos products in Virginia, as would allow New York to assume personal jurisdiction over manufacturer in widow's tort action. Hamilton v. Garlock, Inc., 1998, 31 F.Supp.2d 351,
on reargument 1999 WL 135203, reversed 197 F.3d 58, on remand 96 F.Supp.2d 352, certiorari denied 120 S.Ct.
2691, 530 U.S. 1244, 147 L.Ed.2d 962. Federal Courts
86
Buyer of beverage bottling equipment did not establish that nondomiciliary seller committed tort outside New
York, causing damages inside state, as required for personal jurisdiction based on doing business in state; claim
that seller fraudulently represented condition of equipment was unsuccessful attempt to transform contract
claim, which could not serve as basis for jurisdiction, into one for tort. Slapshot Beverage Co., Inc. v. Southern
Packaging Machinery, Inc., 1997, 980 F.Supp. 684. Federal Courts
76.25
Plaintiffs who alleged that federal officials conspired to deprive plaintiffs and other members of political groups
of right to participate in electoral process and that defendants were responsible for illegal burglary, mail tampering, and other wrongful activities, failed to allege or prove that nonresident defendants, including former White
House Chief of Staff, former Assistant to the President, and former Assistant Attorney General were connected
with any act or transactions in New York, and thus failed to sustain burden of pleading and proving jurisdiction.
Socialist Workers Party v. Attorney General of U. S., 1974, 375 F.Supp. 318. Federal Courts
94
There is reason to doubt whether the restatement in tort of a claim resting on breach of contract can bring that
claim within this section. Schenin v. Micro Copper Corp., 1967, 272 F.Supp. 523. Federal Courts
76.25
Several visits which representatives of nonresident trading company made to New York for purpose of doing
general marketing research and ascertaining what type of products might be salable in New York could not form
predicate for exercise of in personam jurisdiction over trading company in personal injury action in view of fact
that visits had not been shown to bear substantial relationship to transaction out of which cause of action arose.
McGowan v. Smith, 1981, 52 N.Y.2d 268, 437 N.Y.S.2d 643, 419 N.E.2d 321. Courts
13.6(2)
Page 309
Injury sustained by guest in fall in room in British hotel did not arise from British corporation's transaction of
any business in New York and subd. (a) 1 of this section, authorizing exercise of personal jurisdiction over foreign corporation upon cause of action “arising” from transaction of business in state, was not applicable,
however, jurisdiction was properly acquired over the British corporation pursuant to § 301 since it was “doing
business” here in the “traditional sense.” Frummer v. Hilton Hotels Intern., Inc., 1967, 19 N.Y.2d 533, 281
N.Y.S.2d 41, 227 N.E.2d 851, motion granted 20 N.Y.2d 737, 283 N.Y.S.2d 99, 229 N.E.2d 696, reargument
denied 20 N.Y.2d 758, 283 N.Y.S.2d 1025, 229 N.E.2d 844, certiorari denied 88 S.Ct. 241, 389 U.S. 923, 19
13.5(4)
L.Ed.2d 266. Courts
This section providing that personal jurisdiction may be asserted over any nondomiciliary if, in person or
through an agent, he transacts any business within state is not limited to actions in contract but applies as well to
actions in tort when supported by sufficient showing of facts. Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 1965, 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68, certiorari denied 86 S.Ct. 241, 382 U.S. 905,
15 L.Ed.2d 158. See, also, Mayer v. Josiah Wedgwood & Sons, Ltd., D.C.N.Y.1985, 601 F.Supp. 1523; Hutton
v. Piepgras, D.C.N.Y.1978, 451 F.Supp. 205; Dewitt v. American Stock Transfer Co., D.C.N.Y.1977, 433
13.5(4)
F.Supp. 994; Wurtenberger v. Cunard Line Ltd., D.C.N.Y.1974, 370 F.Supp. 342. Courts
Allegations that employee of plaintiff, a New York company, and employees of United Kingdom (UK) firm, including one particular employee, worked together to use plaintiff's confidential and proprietary information to
divert work for a client from plaintiff to plaintiff's employee and the UK firm were sufficient to establish that
UK defendants engaged in tortious conduct in New York, acting through plaintiff's employee as their agent, and
therefore to invoke jurisdiction, even though motion court dismissed conspiracy claim against plaintiff's employee. Front, Inc. v. Khalil (1 Dept. 2013) 103 A.D.3d 481, 960 N.Y.S.2d 79. Courts
13.5(4)
Assuming that the contract was negotiated in New York, it was nevertheless to be performed in Connecticut, at
the defendant’s residence. The plaintiffs allege that the defendant provided Brandt with defective equipment in
Connecticut to perform work there. The underlying cause of action arises from an alleged breach by the defendant of a duty to provide Brandt with a safe work place, which is wholly separate from the contract negotiations.
This duty of care arose in Connecticut, not in New York. The trial court lacked personal jurisdiction over Connecticut homeowner in personal injury action by contractor injured while performing work on residence in Connecticut claiming that homeowner provided defective equipment. Brandt v. Toraby (2 Dept. 2000) 273 A.D.2d
429, 710 N.Y.S.2d 115. Courts
13.5(4)
Trial court had personal jurisdiction over California pilot in flight instructor's negligence suit regarding plane
crash, even though accident occurred in California; pilot's significant and purposeful acts in New York with regard to transaction at issue, involving retention of instructor to inspect plane, determine if it was airworthy, and
provide pilot with 25 hours of flight instruction were sufficient to confer jurisdiction under long-arm statute, and
there was clearly articulable nexus between accident and transactions in New York. Lebel v. Tello (1 Dept.
2000) 272 A.D.2d 103, 707 N.Y.S.2d 426. Courts
13.5(4)
Horseback riding accident in St. Lucia did not arise from transaction in state under long-arm personal jurisdiction statute; accident bore little relationship to resident's purchase of travel package in state from travel agency
Page 310
unrelated to hotel. Weinstock v. Le Sport (1 Dept. 1993) 194 A.D.2d 400, 598 N.Y.S.2d 511. Courts
13.5(4)
220. Arbitration, transaction of business
Under New York law as predicted by federal appellate court, New York contacts by two foreign entities, in negotiating and performing management contract that subsequently gave rise to arbitration occurring outside New
York, had articulable nexus with or substantial relationship to challenge to arbitrators' award, and would, if sufficient, support exercise of personal jurisdiction over that challenge under “transacts any business” provision of
New York long-arm statute; arbitration proceeding was extension of contract. Sole Resort, S.A. de C.V. v. Allure Resorts Management, LLC, C.A.2 (N.Y.)2006, 450 F.3d 100, on remand 2007 WL 646288. Courts
13.5(3)
Where parties came to New York not solely in their capacity as arbitrators, but also in their capacity as management representatives under master contract, parties were subject to District Court's jurisdiction in Southern District of New York on ground they transacted business in New York out of which litigation stemming from arbitration process arose. International Longshoremen's Ass'n, AFL-CIO v. West Gulf Maritime Ass'n, 1985, 605
76.15
Where affidavit filed by Louisiana corporation stated that only connection that Louisiana corporation had with
New York regarding events which gave rise to conversion suit was exchange of telephone calls, mail, and telexes with debtor corporation involving sales contract, Louisiana corporation could not be said to have availed itself of privilege of conducting activities within New York, even though sales contract signed by Louisiana corporation and debtor provided for arbitration of disputes in New York. Sterling Nat. Bank & Trust Co. of New
York v. Southern Scrap Export Co., 1979, 468 F.Supp. 1100. Federal Courts
81
There was insufficient contact between securities fraud claimant and New York courts, to provide basis for jurisdiction in suit brought by stockbrokers to prevent arbitration of customer claim; only contact with New York
was filing of arbitration request with New York office of National Association of Securities Dealers (NASD) as
required by NASD arbitration procedures, customer was based in Michigan, as was office of stockbroker from
which alleged fraud took place, and NASD had designated Michigan as appropriate site for arbitration.
Painewebber Inc. v. McAdams (1 Dept. 1995) 212 A.D.2d 464, 623 N.Y.S.2d 198. Courts
13.5(12)
Where foreign entity expressly agreed to arbitrate disputes under patent license agreement in New York, agreement automatically subjected entity to personal jurisdiction of district court. Lucent Technologies, Inc. v. Tatung
Co., 2003, 2003 WL 402539, Unreported. Federal Courts
95
221. Artistic endeavors, transaction of business
German theatrical company producing American musical transacted business in New York, for purposes of jurisdiction in privacy rights violation suit under New York long-arm statute brought by actor in American production whose likeness was used in connection with German production, when German company entered into li-
Page 311
censing and supplemental production agreements with New York companies holding rights to musical. Cuccioli
v. Jekyll & Hyde Neue Metropol Bremen Theater Produktion GmbH & Co., 2001, 150 F.Supp.2d 566, 59
86
U.S.P.Q.2d 1771. Federal Courts
Minnesota residents who starred in television program produced by New York corporation were subject to personal jurisdiction in New York in action for breach of contract brought by Minnesota-based creator of television
programs. Kaprall v. WE: Women's Entertainment, LLC (2 Dept. 2010) 74 A.D.3d 1151, 904 N.Y.S.2d 721.
13.5(3)
Courts
Musical composer by his composing activities, which he exploited in the United States through attorneys and accountants whom he retained in New York on continuing basis, did business in New York, within purview of this
section. ABKCO Industries, Inc. v. Lennon (1 Dept. 1976) 52 A.D.2d 435, 384 N.Y.S.2d 781. Courts
13.6(2)
By auditioning actress in New York, regional theater company from West Virginia subjected itself, pursuant to
transacting business prong of long-arm statute, to jurisdiction by New York courts with respect to actress' breach
of contract action, despite fact that company only evaluated actress for 15 minutes and did not offer her job at
that time; in performance contract between actress and company, 15-minute audition was extremely crucial part
of business transaction, company based its entire evaluation of actress on 15-minute meeting in New York, and
by travelling from West Virginia to New York, company took advantage of unique talent pool available to it in
this particular forum, such that company purposefully availed itself of benefits and privileges of conducting
business in New York. Berk v. Theatre Arts of West Virginia, Inc., 1993, 157 Misc.2d 696, 598 N.Y.S.2d 418.
Courts
13.5(3)
222. Banking, transaction of business--In general
Court of Appeals would certify to New York high court question of whether Israeli residents' claims against Lebanese bank under Anti-Terrorism Act, Alien Tort Statute, and Israeli tort law “arose from” bank's transaction of
business in New York, as required for exercise of personal jurisdiction over bank under New York long-arm
statute on basis of business transacted in New York, in action alleging that bank facilitated terrorist organization's attacks in Israel, which injured Israeli residents or killed their family members, by using correspondent
banking account at New York bank to make wire transfers on behalf of organization totaling; lack of New York
authority prevented confident prediction of how state high court would resolve what causal connection was required between bank's New York activities and residents' claims, which were jurisdictional issues involving
value judgments and important public policy choices, and state high court's answer to question would be determinative of action if jurisdiction were lacking. Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, C.A.2
(N.Y.)2012, 673 F.3d 50, certified question accepted 18 N.Y.3d 952, 944 N.Y.S.2d 472, 967 N.E.2d 697, certified question answered 20 N.Y.3d 327, 960 N.Y.S.2d 695, 984 N.E.2d 893. Federal Courts
392
Hong Kong--based manufacturer of infringing coffeemakers did not purposefully project itself into New York,
for purposes of New York long-arm statute, as result of transactions, which had connection with New York that
was fortuitous result of its distributor's designation of New York bank as the collecting bank, as was required for
New York court to exercise personal jurisdiction over competitor in patent infringement action; manufacturer
Page 312
did not have an account at bank, its receipt of payment on its invoices occurred outside New York, and there was
no evidence manufacturer ever negotiated or executed a contract with bank in New York, maintained an ongoing
contractual relationship with bank, visited New York, or otherwise availed itself of the benefits and protections
of New York laws. Wing Shing Products (BVI), Ltd. v. Simatelex Manufactory Co., Ltd., 2007, 479 F.Supp.2d
86
388. Federal Courts
There was insufficient nexus between whatever bank business was done in New York by Maryland-based issuer
of credit card and circumstances giving rise to card holder's claim of breach of contract against issuer, to confer
jurisdiction under state long-arm statute; card holder was resident of Massachusetts when he initiated transaction
giving rise to lawsuit by purchasing airline ticket from Massachusetts travel agency, under credit card contract
which stated that it was made in Delaware. Walsh v. Maryland Bank, N.A., 1992, 806 F.Supp. 437. Federal
79
Courts
Bank's wiring of purchase price for certificate of deposit from California bank to California bank's collection
and paying agent in New York, which was sum total of bank's purposeful activities in New York, was insufficient to establish New York long-arm jurisdiction over bank in suit to recoup alleged subsequent overpayment of
principal and interest to bank. Colson Services Corp. v. Bank of Baltimore, 1989, 712 F.Supp. 28. Federal
Courts
84
Minnesota resident was not subject to long-arm jurisdiction in New York in action by California holder of note
on theory that he transacted business in New York when borrowing money from New York bank and agreeing to
repay the money in New York, in

NY CPLR § 302(a)(2)

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