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Marcy v. Allegro Resorts Marketing, Inc.

United States District Court, N.D. New York

February 20, 2015

SUSAN MARCY, Individually and as Administratix of the Estate of JOSEPH A. MARCY, JR., Deceased. Plaintiff,
v.
ALLEGRO RESORTS MARKETING, INC. et al., Defendants.

PETER J. MOSCHETTI, JR. ESQ., Anderson, Moschetti Law Firm, Latham, NY, for the Plaintiff.

THERESA B. MARANGAS, ESQ., Wilson, Elser Law Firm, Albany, NY, for the Defendants.

JOSHUA D. YEAGER, ESQ., KATHERINE J. BARBER, ESQ., WILLIAM J. CREMER, ESQ., Cremer, Spina Law Firm, Chicago, IL.

MEMORANDUM-DECISION AND ORDER

GARY L. SHARPE, Chief District Judge.

I. Introduction

Plaintiff Susan Marcy, individually and as administratrix of the estate of Joseph A. Marcy, Jr. (hereinafter "Joseph"), deceased, commenced this diversity action against defendants Allegro Resorts Marketing, Inc. and Occidental Hotels Management, S.L., alleging state law claims for personal injury stemming from the death of her husband, Joseph. (Compl., Dkt. No. 1, Attach. 1 at 5-9.) Pending are the motions of Allegro and Occidental, which seek dismissal of the complaint for lack of personal jurisdiction, (Dkt. Nos. 5, 18), and Marcy's cross motions seeking, among other things, limited jurisdictional discovery, leave to amend the complaint, and to add parties, (Dkt. Nos. 10, 29). For the reasons that follow, the motions of Allegro and Occidental are denied with leave to renew, and Marcy's cross motions are granted.

II. Background

A. Facts[1]

On or about March 18, 2013, the Marcys made travel reservations through a Liberty Travel agency located in Saratoga Springs, New York, for a week-long-stay at Occidental Grand Aruba Resort (hereinafter "Occidental Grand") in Palm Beach, Aruba, beginning on May 7, 2013. (Compl. ¶ 7.) While on their scheduled trip, Joseph consumed mislabled salad dressing that caused anaphylatic shock, and, ultimately, his death. ( Id. ¶¶ 11-14.)

The following information pertains only to whether Allegro is subject to the court's jurisdiction.

1. Marcy's Allegations

In her complaint, Marcy alleges that Allegro and Occidental are foreign corporations that regularly conduct business, or engage in other persistent conduct, in New York. ( Id. ¶ 4.) Marcy further alleges that Allegro and Occidental "owned, operated, managed, supervised, controlled and promoted... Occidental Grand, " ( id. ¶ 5), and that Liberty Travel "had tour agreements and/or cooperative marketing agreements with [Allegro and Occidental] to market, book and reserve hotels in the trade name of Occidental Hotels and Resorts, including the Occidental Grand, " ( id. ¶ 8).

2. Allegro's Evidence

In support of its motion, Allegro provided the affidavit of Richard Rodriguez, who is its vice president of sales and marketing. (Dkt. No. 5, Attach. 4 ¶ 2.) According to Rodriguez, Allegro is a Florida corporation, with a principal place of business in Miami, Florida, that is not registered or authorized to do business in New York. ( Id. ¶¶ 3, 5, 16.) Allegro's "business operations are limited... to advertising, marketing and otherwise soliciting business in the United States on behalf of Occidental' branded hotels and resorts, all of which are located outside of the United States." ( Id. ¶ 6.) Despite Allegro's business purpose, Occidental advertising and marketing materials are devoid of any mention of ...


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