New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
July 12, 2012
ALLIE MOTORS, INC.,
Appeals from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered April 8, 2011, and a judgment of the same court entered April 25, 2011.
Anglin v Allie Motors, Inc.
Decided on July 12, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., RIOS and ALIOTTA, JJ
The order denied defendant's motion for summary judgment dismissing the complaint. The judgment, following an inquest, awarded plaintiff the principal sum of $3,358.10.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is reversed, without costs, the order denying defendant's motion for summary judgment dismissing the complaint is vacated and defendant's motion is granted.
Plaintiff commenced this action for breach of contract or warranty arising out of his purchase of a used motor vehicle from defendant. Defendant interposed an answer containing defenses, including that the Civil Court lacked personal jurisdiction over defendant as there was no basis for long-arm jurisdiction. Thereafter, defendant moved for summary judgment dismissing the complaint on that basis. In support of the motion, defendant submitted an affidavit by its vice president who averred, in relevant part, that defendant, a car dealer, operates its business in Linden, New Jersey, where it has been located for over 35 years, and that it has been incorporated in New Jersey since 1997. Defendant has always conducted its business within Union County, New Jersey, and has no contacts with, and derives no benefits from, the State of New York. He further stated that, on May 15, 2010, plaintiff came to defendant's place of business and purchased a 2002 Lincoln. When plaintiff subsequently advised defendant that, on May 21, 2010 at 12:30 A.M., the vehicle had caught fire while parked with the engine off, defendant informed plaintiff that the mechanical failure warranty plaintiff had purchased would not cover this type of loss.
By order entered April 8, 2011, the Civil Court denied defendant's unopposed motion. A judgment was entered on April 25, 2011, following an inquest, awarding plaintiff the principal sum of $3,358.10. Defendant appeals from the order and from the default judgment.
The appeal from the order is dismissed. The right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 ). The appeal from the default judgment brings up for review the order denying defendant's motion for summary judgment (see James v Powell, 19 NY2d 249, 256 n 3 ).
On appeal, defendant contends that the court should have granted its motion for summary judgment dismissing the complaint since its exercise of personal jurisdiction over defendant was improper.
Section 404 of the New York City Civil Court Act sets forth the basis for the Civil Court's exercise of personal jurisdiction over nonresidents of the City of New York, such as defendant herein. Defendant's motion papers demonstrated its entitlement to summary judgment dismissing the complaint as it has done none of the acts enumerated in CCA 404 within the City of New York with respect to plaintiff's cause of action so as to bring it within the Civil Court's long-arm jurisdiction. The ultimate burden of proof as to jurisdiction rests with the party asserting jurisdiction (see Sanchez v Major, 289 AD2d 320 ; Weiss v Chou, 234 AD2d 539 ; Cushley v Wealth Masters Intl., 29 Misc 3d 144[A], 2010 NY Slip Op 52221[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Here, plaintiff failed to oppose defendant's motion.
Accordingly, the judgment is reversed, the order denying defendant's motion for summary judgment dismissing the complaint is vacated and defendant's motion is granted.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 12, 2012
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