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Latimore v. Fuller

Supreme Court, New York

April 2, 2013

SONYA WHITTEN LATIMORE, Plaintiff,
v.
KIM E. FULLER, MIAITA HAJ SMITH, THE SMITH HAJ GROUP, BEN SILVERMAN and ELMA KIM, Defendants Index No. 109456/11

Unpublished Opinion

DONNA MILLS, J.

Defendant Lima Kim (Kim) moves for an order dismissing the complaint against her and for sanctions. Plaintiff cross-moves for leave to amend her complaint and for an order disqualifying Kim's counsel.

This is an action alleging causes of action in fraud, breach of contract, breach of fiduciary duty, conversion, unjust enrichment and tortious contractual interference. Plaintiff alleges that sometime in February 2004, she spoke to defendant Kim E. Fuller (Fuller), who is a partner in a promotional company, McCready & Fuller, about an idea for a television program which involved dieting, hoping that Fuller would be interested. Plaintiff alleges that she was able to contact Fuller through defendant Miatta Haj Smith (Smith).

On October 18, 2007, plaintiff commenced an action for federal copyright infringement against NBC Universal, Inc. d/b/a Universal Television Distribution (NBC), McCready & Fuller, and Fuller, individually and as a partner of McCready & Fuller, in Federal District Court, Southern District of New York (the Federal Action). Essentially, plaintiff alleged that the NBC program, The Biggest Loser, was based on a treatment she had provided to Fuller. At a pre-trial deposition, plaintiff testified that she spoke to Fuller about the treatment, but claimed not to know any subsequent actions made by him concerning the treatment. At his pre-trial deposition, Fuller testified that he did not follow up with plaintiff, and did not give her a contract, or speak to her, until after the commencement of the Federal Action.

After the depositions, NBC moved for dismissal through summary judgment. The Federal District Court granted the motion, based upon the testimony of Fuller and Smith, who denied communicating with NBC prior to the suit's commencement. Plaintiff asserts that the testimony and sworn affidavits from these individuals that formed the basis of NBC's motion are fraudulent. Plaintiff claims that she is seeking an appeal in the Federal Circuit Court.

Subsequently, Smith and defendant Smith Haj Group moved for dismissal in the present action, arguing that there was improper service of process, that the claim for fraud is not actionable, that the claims for conversion and unjust enrichment are untimely, and that this case is precluded by collateral estoppel and res judicata. This court granted their motion, and dismissed the complaint as against these parties on the grounds that plaintiff failed to make out a claim for fraud and that the claims for conversion and unjust enrichment were untimely.

Now, defendant Kim is moving for dismissal on similar grounds, lack of substance in the fraud claim, and untimeliness in the conversion and unjust enrichment claims. In addition, Kim moves for dismissal on the ground of lack of personal jurisdiction.

Kim contends that she has no jurisdictional contacts with New York. She alleges the following: she owns no real property here, has no bank accounts here, has no mailing address here, has no agent for service of process and was not served here. She does not regularly do business or engage in any persistent course of conduct here, or derive any revenue for goods used or services consumed here.

Kim argues that she did not speak to plaintiff until the commencement of the Federal Action and lacks any prior knowledge of plaintiff s treatment. She claims to have worked as an executive assistant for 3 Ball Productions (3 Ball) in 2004, but did not participate in any substantive discussions about The Biggest Loser program (3 Ball rendered some services on this series as of 2004, none of which were performed in New York).

Kim also moves for sanctions on the ground that plaintiffs counsel is bringing a frivolous suit against her. She contends that there is absolutely no merit in the claims brought against her and, like defendant Smith, an order granting dismissal as to her is inevitable.

Plaintiff opposes the motion to dismiss and for sanctions. She also cross-moves for leave to amend her complaint and for an order disqualifying Kim's counsel. A stipulation was executed by the parties wherein a second amended complaint was submitted to replace the first amended complaint.

Plaintiff argues that discovery on the issue of whether Kim is subject to New York jurisdiction is warranted and at this stage, plaintiff may take a prima facie showing of jurisdiction solely by allegations. With respect to allegations, plaintiff contends that Kim is subject to jurisdiction pursuant to this state's long-arm statute. The complaint alleges that Kim traveled to New York for several meetings to negotiate and possibly execute a contract with Fuller and/or Smith. The meetings allegedly constitute transacting business, i.e. preliminary contract negotiations, and would give this court personal jurisdiction over Kim under CPLR 302 (a) (1). If plaintiffs allegations are shown to be true, plaintiff contends that Kim's action would also constitute a commission of an act within this state, causing harm within this state, pursuant to CPLR 302 (a) (2). Plaintiff also argues that discovery could reveal whether Kim could be subject to jurisdiction based on her being an agent of 3 Ball.

Plaintiff opposes sanctions on the ground that this action is meritorious and that there is sufficient proof to ...


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