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Faust, Roy, Mangold and Fuchs, LLP v. Higbee

Other Lower Courts

January 30, 2008

Faust, Roy, Mangold and Fuchs, LLP, Marily S. Faust, Esq., and Marilyn S. Faust d/b/a Faust, Mangold & Fuchs, Plaintiff,
Nancy N. Higbee a/k/a Nancy Cresap, Defendant.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.


Joan Marshall Cresap Atty. For Deft.

Peter B. Ackerman, Esq. Atty. For Pltfs.


Mary H. Smith, J.

This is an action to recover legal fees for services rendered defendant, a Connecticut resident, in her New York matrimonial action, which fees, as of November 1, 2004, allegedly totaled $135,379.56. Defendant presently is moving to dismiss the action, arguing not only that New York does not have long arm jurisdiction over her, but that the doctrines of res judicata and collateral estoppel bar this action, which, in any event, also fails to state a cause of action. For the reasons which follow, this motion is denied.

Regarding the personal jurisdiction issue, while there is no issue as to defendant's Connecticut residency, both at the time of the commencement of the Westchester County matrimonial action and presently, the Court finds that defendant cannot successfully assert that this Court lacks jurisdiction over her given that she, by commencing her New York matrimonial action, had availed herself of the Westchester County Supreme Court, had hired New York counsel, plaintiffs herein, to represent her in that litigation, which litigation occurred over a number of years, and the legal fees here in dispute arose solely out of that litigation.

"It is well settled that in order for a court to exercise personal jurisdiction over a defendant, that defendant must "have certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.' (Citations omitted )." Further, "an essential criterion in all cases is whether the quality and nature' of the defendant's activity is such that it is reasonable ' and fair' to require him to conduct his defense in that State. " (Citations omitted).

Jacobson v. Grindlinger, 178 A.D.2d 507 (2nd Dept. 2001). Applying the foregoing standard to the instant case, the inescapable conclusion is that defendant had engaged in purposeful activity in New York and consequently properly is subject to personal jurisdiction pursuant to CPLR 302, subdivision (a), paragraph 1. See Fischbarg v. Doucet, 38 A.D.3d 270 (1st Dept. 2007); Kaczorowski v Black & Adams, 293 A.D.2d 358 (1st Dept. 2002); Abbate v. Abbate, 82 A.D.2d 368 (2nd Dept. 1981).

Defendant's reliance upon Colucci & Umans v. 1 Mark, Inc., 224 A.D.2d 243 (1st Dept. 1996) is completely misplaced, as the Court therein had held, contrary to defendant's understanding, that jurisdiction properly was exercised over the out-of-state corporate defendant based upon its hiring of New York counsel to represent it in New York litigation, its participation in that proceeding by way of numerous telephone calls and its visits to New York. Notably, defendant wholly mischaracterizes the holdings in both Deutsche Bank Securities, Inc. v. Montana Bd. of Investments, 7 N.Y.3d 65 (2006) and Granat v. Bochner, 268 A.D.2d 365 (1st Dept. 2000) as being authority for the proposition that the retention of New York counsel is insufficient to establish jurisdiction based upon the transaction of business. Indeed, neither of those cases even involved the issue of attorney hiring.

Notwithstanding defendant's protestations to the contrary, the Court further rejects defendant's arguments that this action is subject to dismissal based upon the principles of res judicata and/or collateral estoppel. Plaintiff previously had commenced this same action in Federal Court, Southern District of New York, purportedly based upon diversity jurisdiction. On September 21, 2007, Judge Brieant, addressing the defendant's motion to dismiss that action, stated his belief that the action properly should have been commenced in the District of Connecticut, based upon defendant's Connecticut residency or in the New York State Courts. Specifically on this point, Judge Brieant stated as follows:

... Diversity case. You could have brought it in the New York State Courts and you chose not to. So you have a choice. You can have it dismissed without prejudice and without costs for improper jurisdiction, and can go sue where you ought to have sued to begin with and probably can make it ...

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