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Roderick Cushley, Appellant v. Wealth Masters International

December 16, 2010


Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.),entered June 2, 2009,

Cushley v Wealth Masters Intl.

Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 16, 2010


deemed from a judgment of the same court entered June 29, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 2, 2009 order granting defendants' motions to dismiss, dismissed the complaint.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this action in the Civil Court of the City of New York, Queens County. In his verified complaint, he alleged, without specification, that at all times relevant to the complaint, he had "engaged Defendants" over the Internet, over the telephone and by mail, and that during all such "engagements," he was "located in New York." He further alleged that he had found defendant "Wealth Masters International, a Texas Corporation" (WMI) through its subsidiary, Carbon Copy Pro, from which he had purchased a book on marketing. The marketing book did not contain the material that he had paid for, and was merely an advertisement for WMI, from which he ordered additional books and materials on marketing. According to plaintiff, he paid $9,000 by check to one David Boyce, a person who, he believed, was a representative of defendant Michael Force (Force), an agent of WMI. Force had cashed the check, using his own personal bank account, and/or sent the money to WMI. On June 11, 2008, he had sent another check to Force, in the sum of $13,000, which had also been cashed, using Force's personal bank account, and/or sent to WMI. Plaintiff asserted that he had not received any of the products that he had ordered, but instead had been directed to market WMI's products, to deposit any checks he received into his own personal checking account, and then to withdraw and forward the funds. He believed that he was being used to launder money he received from contractors. He demanded a refund from Force, and from defendants Mary Dee (Dee) and Kip Herriage (Herriage), both officers of WMI, and sought to sever all ties with them. Force offered him a partial refund of $10,000, which he refused, since he wanted a total refund. After WMI, through its officers and agents, refused to communicate with him, he decided to travel to a WMI convention in Las Vegas, which was being held from July 27 through 29, 2008, at the Rio All Suite Hotel & Casino (Rio). On July 28, 2008, he met with Dee to discuss the matter, and a dispute arose, which became physical. Rio's hotel security arrived at the scene and summoned the local police. Rio denied him the use of his room, confiscated his belongings and identification, and allegedly removed $700 in cash stored in his belongings. He suffered a seizure and was taken to the emergency room of a local hospital. The criminal charges against him were subsequently dismissed.

Thereafter, he commenced this action, asserting breach of contract (first cause of action), violation of General Business Law § 349 (second cause of action), abuse of process (third cause of action), and fraud (fourth cause of action) as against defendants WMI, Herriage, Dee, Force and Karl Bessie (Bessie), also an officer of WMI; conversion (fifth cause of action) as against WMI, Dee and Force; conversion (sixth cause of action) against Rio; and conversion (seventh cause of action) against unspecified defendants.

By pre-answer motions, defendants sought dismissal of the complaint pursuant to CPLR 3211 (a) (8), alleging that they were beyond the reach of the Civil Court's long-arm jurisdiction. Plaintiff submitted affirmations of counsel in opposition to the motions. By order entered June 2, 2009, the Civil Court granted the motions to dismiss, and this appeal by plaintiff ensued. A judgment dismissing the complaint was subsequently entered on June 29, 2009, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Section 404 of the New York City Civil Court Act, the long-arm statute of the Civil Court, provides, in pertinent part, as follows: "Acts which are the basis of jurisdiction. The court may exercise personal jurisdiction over any non-resident of the city of New York . . . as to a cause of action arising from any of the acts enumerated in this section, in the same manner as if he were a domiciliary of the state and a resident of the city of New York, if, in person or through an agent, he: 1. transacts any business within the city of New York . . .; or 2. commits a tortious act within the city of New York . . ."

On the issue of whether a court may assert jurisdiction over a defendant, the ultimate burden of proof rests with the party asserting jurisdiction (see Sanchez v Major, 289 AD2d 320 [2001]; Brandt v Toraby, 273 AD2d 429 [2000]). However, in order to successfully oppose a pre-answer motion to dismiss a complaint pursuant to CPLR 3211 (a) (8), a plaintiff need only "make a prima facie showing that personal jurisdiction exists" (Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243 [2005]). In determining whether a plaintiff has met his burden of making a prima facie showing, the court must construe the pleadings, affidavits and other evidentiary materials in a light most favorable to the plaintiff, and must resolve all doubts in favor of jurisdiction (see Brandt, 273 AD2d 429). In the instant case, plaintiff's opposition papers consisted only of the affirmations of his counsel, who had no personal knowledge of the underlying facts (see Carte v Parkoff, 152 AD2d 615 [1989]). However, we may consider the allegations of the complaint, which was verified by plaintiff, in determining whether plaintiff made a prima facie showing of personal jurisdiction over defendants (see CPLR 105 [u]). Upon a review of the complaint, we find that plaintiff failed to meet his burden of showing the existence of facts sufficient to warrant the exercise of jurisdiction over any of the defendants.

In support of its motion to dismiss, defendant Rio submitted the affidavit of its regional vice-president of finance, who averred, among other things, that Rio was a Nevada corporation which was not authorized or registered to do business in New York, and which had never transacted or conducted any business in New York. It did not maintain any office space in New York, and had not had employees or agents present in New York. Moreover, the events outlined in the complaint with respect to Rio occurred in Las Vegas, Nevada.

With respect to the motion to dismiss submitted on behalf of the remaining defendants, defendant WMI submitted the affidavit of Bessie, an officer of the corporation, who averred, among other things, that WMI was a Texas corporation, with an office in Texas which handled all the orders, product development, accounts payable and receivable, and member services. WMI did not maintain offices or sales personnel in New York State and did not pay New York State taxes. WMI did maintain an Internet Web site, which could be used by customers throughout the world. The remaining individual defendants all averred, among other things, that they were not New York State residents, had no contacts with New York State, and did not conduct business in New York State. Defendants Bessie and Force also stated that they had never met plaintiff nor had any contact with him.

With respect to all the defendants, plaintiff failed to demonstrate, prima facie, that they had either transacted any business within New York City or committed a tortious act within New York City in connection with the various causes of action asserted against them. The fact that some of the defendants maintained an Internet Web site, did not, without more, subject them to the jurisdiction of the Civil Court (see Grimaldi v Guinn, 72 AD3d 37 [2010]). In determining whether a party has transacted business in New York City, a court must look at the "totality of the circumstances" concerning that party's interactions with, and activities in, New York City (see Grimaldi, 72 AD3d at 51). In order to sustain long-arm jurisdiction, the New York City contact must be of such a nature that the nonresident defendant can be deemed to have purposefully availed itself of the "privilege of conducting activities within the forum . . ., thus invoking the benefits and protection of its ...

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