view, an interstate communication of one's rights, does not constitute a "business transaction" under C.P.L.R. § 301(a)(1). See Stein v. Annenberg Research Institute, 1991 U.S. Dist. LEXIS 9964, No. 90 Civ. 5224, 1991 WL 143400 at *2 (S.D.N.Y. July 19, 1991); Beacon, 715 F.2d at 766. Both Stein and Beacon are factually similar to this case; they involve the interstate communication of property interests and threats of lawsuits. The defendant in Stein, believing that a manuscript designated to be auctioned by Sotheby's had been stolen from his institute's collection, contacted Sotheby's to request that they remove the piece from the auction. Stein, 1991 U.S. Dist. LEXIS 9964, 1991 WL 143400 at *1. In the Stein case, Judge Stanton dismissed the plaintiffs complaint for lack of jurisdiction. See generally, Stein, 1991 U.S. Dist. LEXIS 9964, 1991 WL 143400.
Similarly, in Beacon, the controversy centered around a "cease and desist" letter which alleged a trademark infringement and threatened possible legal action. Beacon, 715 F.2d at 766. The letter was sent to a New York corporation by a non-New York resident. Id. In finding that the court did not have jurisdiction under § 302(a)(1), the Beacon court stated that it was difficult to characterize such a letter as "an activity invoking the 'benefits and protections' of New York law." Id.
Plaintiff relies upon the number of communications to bring this case under New York's long arm jurisdiction. Courts, however, have consistently found that it is the quality of the communications, not the quantity, which amounts to the requisite business activity. Lawrence Wisser and Co., Inc. v. Slender You, Inc., 695 F. Supp. 1560 (S.D.N.Y. 1988); Chertok v. Ethyl Corp. of Canada, 341 F. Supp. 1251 (S.D.N.Y. 1972). The court in Wisser did not find that the defendant had engaged in a business transaction within New York even though he had made 80 telephone calls and sent 30 faxes into the State. Lawrence Wisser and Co., Inc. v. Slender You, Inc., 695 F. Supp. 1560 (S.D.N.Y. 1988). In Wisser, the defendant had made the calls "on virtually a daily basis" into New York to keep her client abreast of her non-New York business services. Wisser, at 1562. The Wisser court stated "It is not the quantity of communications which makes the difference between transacting business in New York or not." Wisser, 695 F. Supp. at 1562.
In a similar fashion, the Chertok court determined that it did not have jurisdiction over a non-New York resident who had engaged in sporadic business negotiations over the phone to New York. Chertok v. Ethyl Corp. of Canada, 341 F. Supp. at 1256. The Court stated that "the test is what kinds of acts and not how many. Therefore, it is axiomatic that there are no mechanical or quanlitative rules to which a court may point for resolution. . . ." Chertok, 341 F. Supp. at 1254 (internal quotations and citations omitted). Accordingly, a reliance upon the quantity of communications is misguided, for the basis of § 302(a)(1) is not the frequency of communications, but their substance. The plaintiff must do more than establish the "breath" of the communication, he must also establish the business "depth" of the communication.
Here, plaintiff failed to establish the depth of the communications. The defendant neither purchased nor sold any services or goods in New York, she merely advised a New York company of her claim to property in their possession. Courts have consistently found similar communications insufficient to give rise to New York jurisdiction under § 302(a)(1). Stein, 1991 U.S. Dist. LEXIS 9964, 1991 WL 143400 at *2; Beacon, 715 F.2d at 766. Therefore, in this case, jurisdiction can not be premised on § 302 (a)(1).
The plaintiff further alleges that jurisdiction is proper under § 302(a)(2). The Second Circuit has consistently interpreted § 302(a)(2) jurisdiction narrowly, finding that correspondence by a defendant into New York without more generally does not confer New York jurisdiction over the correspondent. See Van Essche v. Leroy, 692 F. Supp. 320, 324 (S.D.N.Y. 1988) (Court found that a tortious letter mailed from a non-domiciliary to a New York corporation did not create a basis for New York jurisdiction under § 302(a)(2)); Paul v. Premier Elec. Const. Co., 576 F. Supp. 384, 389 (S.D.N.Y. 1983)(Chicago corporation was not subject to New York jurisdiction when it mailed a false notice of lien to a New York bank); See, also, 1 Michael C. Silberberg § 8.23 at 64 & n.207.
In Stein, discussed supra, the Court did not find New York jurisdiction under § 302(a)(2). Stein, 1991 U.S. Dist. LEXIS 9964, 1991 WL 143400. The Stein court stated "the federal cases construing § 302(a)(2)...have uniformly held that jurisdiction under [this] section cannot be predicated on telephone calls made or letters mailed into the state." Stein, at *3 (citations omitted).
Plaintiff here fails to distinguish Stein from the case at bar and, instead, relies only on its unpublished nature to undermine its authority. Judge Stanton's discussion of § 302(a)(2) precedent is sound, however, and I concur with his analysis of it in Stein. To subject non-residents to New York jurisdiction under § 302(a)(2) the defendant must commit the tort while he or she is physically in New York State. Under the strict interpretation applied by courts in this Circuit, the phone calls made and letters sent by defendants' Florida attorney to New York are not enough to bring the Larrain defendants within the parameters of New York's long arm jurisdiction under § 302(a)(2). Stein, at *3; Van Essche, 692 F. Supp. at 324; Paul, 576 F. Supp. at 389. Accordingly, in this case, I find that jurisdiction can not be found under § 302(a)(2).
For the reasons stated above, the Larrain defendants' motion to dismiss the first six claims of plaintiffs amended complaint is GRANTED. The court retains jurisdiction over the issue of rightful ownership of the painting. Therefore, the parties will continue discovery in accordance with the pretrial scheduling order with the trial date to be a non-jury declaratory judgement hearing. Any proposal for a change in that order must be submitted within two weeks from the date hereof and may prompt a pre-trial conference shortly thereafter.
New York, New York
July 8, 1996
Harold Baer, Jr.