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MENDELSON v. FLEISCHMANN

May 16, 1973

Max MENDELSON, Plaintiff,
v.
Charles FLEISCHMANN and James H. Eastland, Jr., Defendants


Brieant, District Judge.


The opinion of the court was delivered by: BRIEANT

MEMORANDUM AND ORDER

BRIEANT, District Judge.

 Plaintiff, a citizen of California presently residing in Spain, is a licensed real estate broker in New York. He brought an action in Supreme Court, New York County, to recover brokerage commissions in excess of $10,000.00 from defendants. Defendants, residents and individual citizens of Ohio, removed the action to this Court on diversity grounds [28 U.S.C. § 1441(b)].

 They now move, alternatively, to dismiss for lack of personal jurisdiction over them, and improper venue, or to transfer to the Southern District of Ohio pursuant to 28 U.S.C. § 1404(a) for the convenience of the parties and witnesses and in the interests of justice.

 Jurisdiction of the person was obtained in state court pursuant to New York CPLR § 302(a)(1), which reads in part as follows:

 
"§ 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."

 Defendants owned or controlled real property (the "Mercantile Library Building") located in Ohio. Part of that property was ultimately, on July 3, 1969, leased in writing for a term of years to Garfinckel, Brooks Brothers, Miller & Rhoads, Inc. (hereinafter "Brooks"). In that lease plaintiff was recognized as broker, and landlords covenanted with the tenant to pay his brokerage fee in accordance with a separate written agreement. This brokerage fee is the subject of the first cause of action pleaded.

 Thereafter, the landlord and tenant agreed upon a novation, by which a new lease, on different terms, for a different parcel (the "Formica Building"), also owned by defendants was leased to Brooks instead of the original store site. The new lease contains the same recital concerning landlords' obligation to plaintiff for brokerage.

 With what seems unseemly greed, plaintiff claims separately and additionally for this compensation in his second cause of action pleaded. Whether he may get paid twice, because the parties changed their minds and renegotiated after the first lease was signed is not relevant to the jurisdictional question.

 Defendants state without contradiction that the brokerage agreement was not made in New York. They concede, grudgingly, on oral argument, that in the course of performance, plaintiff had one meeting in New York, characterized as "the brief January 30 trip to New York."

 Undisputed documents belie defendants' contention that the trip to New York was of no significance. On January 8, 1969 defendant Eastland, then trustee for co-defendant Fleischmann in respect to the realty, wrote plaintiff (Exhibit H annexed to Brandon affidavit) in part as follows, after setting forth in detail proposed financial terms for a lease with Brooks:

 
"As you know, we have tried to work out the many possible variations in order to arrive at a proposition which is economically feasible for both of us, and the one presented here is ...

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