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CITY COURT OF NEW YORK, YONKERS 1969.NY.42739 <>; 303 N.Y.S.2d 158; 60 Misc. 2d 322 August 6, 1969 ELECTRONICS DEVICES, INC., PLAINTIFF,v.MARK ROGERS ASSOCIATES, DEFENDANT Finley, Kumble, Underberg, Persky & Roth for defendant. Fanelli, Otto, Bosco & Penzel for plaintiff. John E. Tobin, J. Author: Tobin

John E. Tobin, J.

Author: Tobin

 This is a motion by the defendant pursuant to CPLR 3211 (subd. [a]) to dismiss the plaintiff's complaint upon the ground that the court has no jurisdiction of the person of the defendant.

It appears from the papers submitted by the parties that the defendant is a Connecticut corporation engaged in the business of operating a personnel agency with its sole and principal place of business located at Stamford, Connecticut; that it is not and never has been licensed to do business in the State of New York, has no office, agent or representative here for the purpose of doing business and has no bank accounts in this State. On or about October 1, 1968, the defendant contacted the personnel office of the plaintiff by telephone and solicited business from the plaintiff.

As a result of that telephone call, the parties arrived at an agreement and entered into a contract for the placement of employees by the defendant with the plaintiff. Pursuant to the terms of that contract, the defendant, on or about October 25, 1968, furnished the plaintiff with the services of one Jules Jacalow, who, after a 40-day training period did not qualify and his employment was terminated. The plaintiff now seeks to recover the return of its placement fee of $1,960 paid to defendant under a written guarantee which was prepared in defendant's office in Connecticut. Plaintiff commenced this action by serving the defendant with a summons and complaint on May 5, 1969, together with a notice that a copy of said process was filed with the Secretary of State of New York pursuant to section 307 of the Business Corporation Law.

The action was brought by the plaintiff under CPLR 302 (subd. [a], par. 1) which provides as follows:

"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 nondomiciliary, or his executor or administrator, who in person or through an agent:

1. transacts any business within the state".

The question to be resolved in this matter is whether the cause of action brought herein arises from the defendant's purposeful activities in this State and whether or not the said activities meet the minimal requirements to bring the action within the jurisdiction of the New York State courts. The court has carefully reviewed the papers submitted by the parties and has read all of the cases submitted in their memoranda.

In the Practice Commentary by Joseph M. McLaughlin appearing in McKinney's Consolidated Laws of New York (CPLR Book 7B, pp. 428, 430) it is stated: "There can no longer be any serious doubt that the transaction of business within the state is a sufficient predicate for personal jurisdiction at least as to causes of action arising out of that business".

In Weinstein-Korn-Miller (N. Y. Civ. Prac., vol. 1, par. 302.06a) in discussing "transaction of business" as a requirement for applying the so-called "long-arm statute", the following observations are made:

"In commercial cases the Court of Appeals has indicated a tendency to expand New York's jurisdiction and has been more liberal than lower courts. In tort cases, however, the highest state court has shown a contrary tendency.

"In determining which activities constitute the transaction of business, New York courts have uniformly sustained jurisdiction where the action arose out of a commercial contract executed in New York or specifying that New York law applies. No court has, however, as yet held that either of these factors is conclusive if the defendant had no other contacts with the state. Moreover, if substantially all of the negotiations took place in New York, it is unlikely that the mere formal execution outside the state would be reason for denying jurisdiction to our courts. Similarly, the mere formal execution in New York of a contract negotiated outside the state between parties having no substantial personal connection in the state of a contract to be performed outside the state would furnish insufficient basis for the exercise of personal jurisdiction by New York courts absent an indication in the contract that the parties intended New York courts as a forum for settling disputes.

"Troublesome are cases arising out of an out-of-state contract between a domiciliary buyer-plaintiff and a nonresident seller-defendant. The minimum activity that will satisfy both statutory and ...

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