Preview
FILED: NEW YORK COUNTY CLERK 11/12/2018 01:01 PM INDEX NO. 155570/2016
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/12/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------------------X Index No.: 155570/2016
ANTHONY MAGNI,
AFFIRMATION
Plaintiff, IN OPPOSITION
-against-
Assigned Justice:
THIRD AVENUE TOWER OWNER, LLC, POLSINELLI Hon. Arlene P. Bluth
PC, CLUNE CONSTRUCTION COMPANY LLP,
CONCEPTS FOR BUSINESS, LLC, and G&S Return Date:
CONCEPTS, INC., November 16, 2018
Defendants.
------------------------------------------------------------------------X
POLSINELLI, P.C.,
Third-Party Plaintiff,
-against-
CONCEPTS FOR BUSINESS, LLC, and
G&S CONCEPTS, INC.,
Third-Party Defendants.
-------------------- ---------------------- ---------X
William C. Mahlan, Jr.,an attorney duly admitted to practice before the Courts of the
State of New York, affirms the truth of the following under penalties of perjury:
1. I am an attorney associated with the law firm of Sackstein, Sackstein &
Lee, LLP, attorneys for the Plaintiff, ANTHONY MAGNI. This affirmation is submitted in
opposition to the Defendant/Third Party Defendant CONCEPTS FOR BUSINESS, LLC's
(hereinafter "CONCEPTS") motion pursuant to CPLR § 3211 (a)(8) and (9) to dismiss the
Complaint due to lack of jurisdiction.
CONCEPTS FOR BUSINESS LLC IS SUBJECT TO JURISDICTION
"A"
2. Annexed hereto as Exhibit is a copy of defendant, CONCEPTS, purchase
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order, P.O. No. 16-1913, dated January 18, 2016. Itprovides that CONCEPTS will deliver and
installshelving for $16,750.
3. The invoices connected to the purchase order listthe price for the materials as
+ (with change for $646.04 =
$3,327.36 (Invoice 302033 for $2,681.32 Invoice 3012412 order)
$3,327.36. Thus, there is a $13,422.64 difference between the $3,327.36 for materials and the
$16,750.00 purchase order. Arguably, this considerable difference may be for installation as
"Description" 2/10."
represented in the purchase order's as "Install shelving 2/8, 2/9 and
4. Although CONCEPTS argues in itsmotion papers that itdoes not do business in
New York, to the contrary, as indicated above, itspurchase order evidences that CONCEPTS was to
shelving"
both "Deliver and Install at the offices of Polsinelli Law Firm on 600 Third Avenue, New
York, New York on February 8, 2016 through February 10, 2016.
5. In other words, the purchase order shows that CONCEPTS was doing business in
New York.
6. Granted that International Shoe v. Washington, 326 U.S. 310, 319 (U.S. 1945)
provides that an unregistered foreign corporation is not subject to jurisdiction unless ithas
established meaningful contacts in the jurisdiction, according to itspurchase order, CONCEPTS has
actually entered the State of New York to install shelving. By doing so, ithas purposely availed
itself of the privilege of conducting activities in the forum state. Ithas invoked the benefits and
protections of New York State. Its workers who were present in New York State to install the
shelving have the benefit of availing themselves of the protections of the tort laws of New York.
7. CPLR 302 (a)(1) authorizes the court to exercise jurisdiction over non-domiciliaries
for tort and contract claims arising from the defendant's transaction of business in the State. Itis a
statute"
"single act and proof of one transaction in New York is sufficient to invoke jurisdiction,
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jurisdiction, even though the defendant never enters the New York, so long as the defendant's
activities here were purposeful and there is a substantial relationship between the transaction and the
claim asserted, Kreutter v. McFadden, 71 N.Y.2d 460, 466 (1988).
8. New York isjustified in exercising jurisdiction over CONCEPTS because the work
of CONCEPTS's employees in installing the shelving at the New York work-site was directly
connected to the claim asserted by plaintiff, ANTHONY MAGNI, in that itwas the shelving itself
that fellover and injured him.
9. At this stage in the litigation, no depositions have been taken. The purchase order
submitted by CONCEPTS is the evidence of their having installed the shelving. It isexpected that
deposition testimony of the other defendants will establish whether CONCEPTS was present at the
work-site.
10. Although CONCEPTS has submitted in itsmotion papers the affidavit of John
Archer, President of CONCEPTS, wherein he states that CONCEPTS did not perform any work at
the work-site, itis submitted that plaintiff is entitled to take his deposition or that of any other
CONCEPTS employee who has knowledge of whether itdid any work at the work-site.
CONCEP_TS WAS PROPERLY SERVED
11. CONCEPTS was served with the Amended Complaint by service on the Secretary
of State pursuant to CPLR Section 302 and Limited Liability Company Law Section 304 by filing
proof of service.
12. Section 304 of the Limited Liability Company Law reads as follows:
(a) In any case in which a non-domiciliary would be subject to the personal or other
jurisdiction of the courts of this state under article three of the civil practice law and rules, a
foreign limited liability company not authorized to do business in this state is subject to a like
jurisdiction. In any such case, process against such foreign limited liability company may be
served upon the secretary of state as its agent. Such process may issue in any court in this state
having jurisdiction of the subject matter.
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(b) Service of such process upon the secretary of state shall be made by personally
to and with the of state or his or her deputy, or with any person
delivering leaving secretary
authorized by the secretary of state to receive such service, at the office of the department of
state in the city of Albany, a copy of such process together with the statutory fee, which fee shall
be a taxable disbursement.
(c) Such service shall be sufficient if notice thereof and a copy of the process are:
(1) delivered personally outside this state to such foreign limited liability
by a person and in the manner authorized to serve process by law of the jurisdiction in
company
which service is made; or
(2) sent by or on behalf of the plaintiff to such foreign limited liability company
by registered mail, return receipt requested, at the post office address specified for the purpose of
mailing process, on filein the department of state, or with any official or body performing the
equivalent function, in the jurisdiction of itsformation, or if no such address is specified, to its
registered or other office specified, or if no such office is specified, to the last address of such
foreign limited liability company known to the plaintiff.
(d) Where service of a copy of process was effected by personal service, proof of service
shall be by affidavit of compliance with this section filed,together with the process, within thirty
days after such service, with the clerk of the court in which the action or special proceeding is
pending. Service of process shall be complete ten days after such papers are filed with the clerk
of the court.
(e) Where service of a copy of process was effected by mailing in accordance with this
section, proof of service shall be by affidavit of compliance with this section filed, together with
the process, within thirty days after receipt of the return receipt signed by the foreign limited
liability company or other official proof of delivery or of the original envelope mailed. If a copy
of the process is mailed in accordance with this section, there shall be filed with the affidavit of
compliance either the return receipt signed by such foreign limited liability company or other
official proof of delivery or, if acceptance was refused by it,the original envelope with a notation
by the postal authorities that acceptance was refused.
13. As required by paragraph (e) of section 304, plaintiff complied with the statute by
filing the return receipt along with the affidavit of service within thirty days after receipt of the
return receipt signed by theforeign limited liability company. According to the USPS tracking
receipt for item number RE135437695US, the Supplemental Summons and Amended Complaint
was delivered to, and signed for by, John Archer of defendant, CONCEPTS FOR BUSINESS, on
July 6, 2018. Accordingly, the return receipt could not have been received by plaintiff before that
July 6, 2018 date. Plaintiff filed this return receipt along with itsaffidavit of service on August 1,
2018, which is within thirty days after receipt of the return receipt signed by the foreign limited
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liability company. Accordingly, the filing was timely and service under Limited
Company Law Section 304 was properly
effectuated. The return receipt, affidavit
"B."
USPS tracking printout are attached as Exhibit
WHEREFORE, it is respectfully requested that the Defendant CONCEPTS
BUSINESS. LLC's motion be denied in its entirety, together with such further
Court seems just and proper.
Dated: Garden City, New York
November 9, 2018
William C. Mahlan, Jr., E
TO: LAW OFFICES OF TOBIAS & KUHN
Attorneys for Defendant/Third Party-Defendant
CONCEPTS FOR BUSINESS, LLC
100 William Street, Suite 920
New York, New York 10038
(212) 553-8700
File No.: Y43L41146-001
O'CONNOR REDD LLP
Attorneys for Defendant
THIRD AVENUE TOWER OWNER, LLC
P.O. Box 1000, 242 King Street
Port Chester, New York 10573
(914) 686-1700
LEWIS BRISBOIS BISGAARD & SMITH LLP
Attorneys for Defendant
CLUNE CONSTRUCTION COMPANY LLP
213' 5 of 6
77 Water Street, Floor
FILED: NEW YORK COUNTY CLERK 11/12/2018 01:01 PM INDEX NO. 155570/2016
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/12/2018
LEWIS JOHS AVALLON AVILES, LLP
Attorneys for Defendant/Third-Party Defendant
G&S CONCEPTS, INC.
61 Broadway, Suite 2000
New York, New York 10006
(212) 233-7195
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Preview
FILED: NEW YORK COUNTY CLERK 11/12/2018 01:01 PM INDEX NO. 155570/2016 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/12/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------X Index No.: 155570/2016 ANTHONY MAGNI, AFFIRMATION Plaintiff, IN OPPOSITION -against- Assigned Justice: THIRD AVENUE TOWER OWNER, LLC, POLSINELLI Hon. Arlene P. Bluth PC, CLUNE CONSTRUCTION COMPANY LLP, CONCEPTS FOR BUSINESS, LLC, and G&S Return Date: CONCEPTS, INC., November 16, 2018 Defendants. ------------------------------------------------------------------------X POLSINELLI, P.C., Third-Party Plaintiff, -against- CONCEPTS FOR BUSINESS, LLC, and G&S CONCEPTS, INC., Third-Party Defendants. -------------------- ---------------------- ---------X William C. Mahlan, Jr.,an attorney duly admitted to practice before the Courts of the State of New York, affirms the truth of the following under penalties of perjury: 1. I am an attorney associated with the law firm of Sackstein, Sackstein & Lee, LLP, attorneys for the Plaintiff, ANTHONY MAGNI. This affirmation is submitted in opposition to the Defendant/Third Party Defendant CONCEPTS FOR BUSINESS, LLC's (hereinafter "CONCEPTS") motion pursuant to CPLR § 3211 (a)(8) and (9) to dismiss the Complaint due to lack of jurisdiction. CONCEPTS FOR BUSINESS LLC IS SUBJECT TO JURISDICTION "A" 2. Annexed hereto as Exhibit is a copy of defendant, CONCEPTS, purchase 1 of 6 FILED: NEW YORK COUNTY CLERK 11/12/2018 01:01 PM INDEX NO. 155570/2016 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/12/2018 order, P.O. No. 16-1913, dated January 18, 2016. Itprovides that CONCEPTS will deliver and installshelving for $16,750. 3. The invoices connected to the purchase order listthe price for the materials as + (with change for $646.04 = $3,327.36 (Invoice 302033 for $2,681.32 Invoice 3012412 order) $3,327.36. Thus, there is a $13,422.64 difference between the $3,327.36 for materials and the $16,750.00 purchase order. Arguably, this considerable difference may be for installation as "Description" 2/10." represented in the purchase order's as "Install shelving 2/8, 2/9 and 4. Although CONCEPTS argues in itsmotion papers that itdoes not do business in New York, to the contrary, as indicated above, itspurchase order evidences that CONCEPTS was to shelving" both "Deliver and Install at the offices of Polsinelli Law Firm on 600 Third Avenue, New York, New York on February 8, 2016 through February 10, 2016. 5. In other words, the purchase order shows that CONCEPTS was doing business in New York. 6. Granted that International Shoe v. Washington, 326 U.S. 310, 319 (U.S. 1945) provides that an unregistered foreign corporation is not subject to jurisdiction unless ithas established meaningful contacts in the jurisdiction, according to itspurchase order, CONCEPTS has actually entered the State of New York to install shelving. By doing so, ithas purposely availed itself of the privilege of conducting activities in the forum state. Ithas invoked the benefits and protections of New York State. Its workers who were present in New York State to install the shelving have the benefit of availing themselves of the protections of the tort laws of New York. 7. CPLR 302 (a)(1) authorizes the court to exercise jurisdiction over non-domiciliaries for tort and contract claims arising from the defendant's transaction of business in the State. Itis a statute" "single act and proof of one transaction in New York is sufficient to invoke jurisdiction, 2 of 6 FILED: NEW YORK COUNTY CLERK 11/12/2018 01:01 PM INDEX NO. 155570/2016 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/12/2018 jurisdiction, even though the defendant never enters the New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted, Kreutter v. McFadden, 71 N.Y.2d 460, 466 (1988). 8. New York isjustified in exercising jurisdiction over CONCEPTS because the work of CONCEPTS's employees in installing the shelving at the New York work-site was directly connected to the claim asserted by plaintiff, ANTHONY MAGNI, in that itwas the shelving itself that fellover and injured him. 9. At this stage in the litigation, no depositions have been taken. The purchase order submitted by CONCEPTS is the evidence of their having installed the shelving. It isexpected that deposition testimony of the other defendants will establish whether CONCEPTS was present at the work-site. 10. Although CONCEPTS has submitted in itsmotion papers the affidavit of John Archer, President of CONCEPTS, wherein he states that CONCEPTS did not perform any work at the work-site, itis submitted that plaintiff is entitled to take his deposition or that of any other CONCEPTS employee who has knowledge of whether itdid any work at the work-site. CONCEP_TS WAS PROPERLY SERVED 11. CONCEPTS was served with the Amended Complaint by service on the Secretary of State pursuant to CPLR Section 302 and Limited Liability Company Law Section 304 by filing proof of service. 12. Section 304 of the Limited Liability Company Law reads as follows: (a) In any case in which a non-domiciliary would be subject to the personal or other jurisdiction of the courts of this state under article three of the civil practice law and rules, a foreign limited liability company not authorized to do business in this state is subject to a like jurisdiction. In any such case, process against such foreign limited liability company may be served upon the secretary of state as its agent. Such process may issue in any court in this state having jurisdiction of the subject matter. 3 of 6 FILED: NEW YORK COUNTY CLERK 11/12/2018 01:01 PM INDEX NO. 155570/2016 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/12/2018 (b) Service of such process upon the secretary of state shall be made by personally to and with the of state or his or her deputy, or with any person delivering leaving secretary authorized by the secretary of state to receive such service, at the office of the department of state in the city of Albany, a copy of such process together with the statutory fee, which fee shall be a taxable disbursement. (c) Such service shall be sufficient if notice thereof and a copy of the process are: (1) delivered personally outside this state to such foreign limited liability by a person and in the manner authorized to serve process by law of the jurisdiction in company which service is made; or (2) sent by or on behalf of the plaintiff to such foreign limited liability company by registered mail, return receipt requested, at the post office address specified for the purpose of mailing process, on filein the department of state, or with any official or body performing the equivalent function, in the jurisdiction of itsformation, or if no such address is specified, to its registered or other office specified, or if no such office is specified, to the last address of such foreign limited liability company known to the plaintiff. (d) Where service of a copy of process was effected by personal service, proof of service shall be by affidavit of compliance with this section filed,together with the process, within thirty days after such service, with the clerk of the court in which the action or special proceeding is pending. Service of process shall be complete ten days after such papers are filed with the clerk of the court. (e) Where service of a copy of process was effected by mailing in accordance with this section, proof of service shall be by affidavit of compliance with this section filed, together with the process, within thirty days after receipt of the return receipt signed by the foreign limited liability company or other official proof of delivery or of the original envelope mailed. If a copy of the process is mailed in accordance with this section, there shall be filed with the affidavit of compliance either the return receipt signed by such foreign limited liability company or other official proof of delivery or, if acceptance was refused by it,the original envelope with a notation by the postal authorities that acceptance was refused. 13. As required by paragraph (e) of section 304, plaintiff complied with the statute by filing the return receipt along with the affidavit of service within thirty days after receipt of the return receipt signed by theforeign limited liability company. According to the USPS tracking receipt for item number RE135437695US, the Supplemental Summons and Amended Complaint was delivered to, and signed for by, John Archer of defendant, CONCEPTS FOR BUSINESS, on July 6, 2018. Accordingly, the return receipt could not have been received by plaintiff before that July 6, 2018 date. Plaintiff filed this return receipt along with itsaffidavit of service on August 1, 2018, which is within thirty days after receipt of the return receipt signed by the foreign limited 4 of 6 FILED: NEW YORK COUNTY CLERK 11/12/2018 01:01 PM INDEX NO. 155570/2016 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/12/2018 liability company. Accordingly, the filing was timely and service under Limited Company Law Section 304 was properly effectuated. The return receipt, affidavit "B." USPS tracking printout are attached as Exhibit WHEREFORE, it is respectfully requested that the Defendant CONCEPTS BUSINESS. LLC's motion be denied in its entirety, together with such further Court seems just and proper. Dated: Garden City, New York November 9, 2018 William C. Mahlan, Jr., E TO: LAW OFFICES OF TOBIAS & KUHN Attorneys for Defendant/Third Party-Defendant CONCEPTS FOR BUSINESS, LLC 100 William Street, Suite 920 New York, New York 10038 (212) 553-8700 File No.: Y43L41146-001 O'CONNOR REDD LLP Attorneys for Defendant THIRD AVENUE TOWER OWNER, LLC P.O. Box 1000, 242 King Street Port Chester, New York 10573 (914) 686-1700 LEWIS BRISBOIS BISGAARD & SMITH LLP Attorneys for Defendant CLUNE CONSTRUCTION COMPANY LLP 213' 5 of 6 77 Water Street, Floor FILED: NEW YORK COUNTY CLERK 11/12/2018 01:01 PM INDEX NO. 155570/2016 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/12/2018 LEWIS JOHS AVALLON AVILES, LLP Attorneys for Defendant/Third-Party Defendant G&S CONCEPTS, INC. 61 Broadway, Suite 2000 New York, New York 10006 (212) 233-7195 6 of 6