Court Planners & Investor Services, Ltd. v. Fegely

Appellate Division of the Supreme Court of New York

Court Planners & Investor Services, Ltd. v. Fegely

79 A.D.2d 995, 435 N.Y.S.2d 24, 1981 N.Y. App. Div. LEXIS 9891

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 19, 1981

StatusPublished

This text of 79 A.D.2d 995 (Court Planners & Investor Services, Ltd. v. Fegely) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Court Planners & Investor Services, Ltd. v. Fegely, 79 A.D.2d 995, 435 N.Y.S.2d 24, 1981 N.Y. App. Div. LEXIS 9891 (N.Y. Ct. App. 1981).

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Opinion

In an action to recover for goods sold and delivered, plaintiff appeals from an order of the Supreme Court, Nassau County, dated November 26,1979, which granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 8). Order affirmed, without costs or disbursements. Defendant, a Pennsylvania resident, purchased certain goods from plaintiff, a New York corporation with its principal place of business in Nassau County. The goods were delivered in Pennsylvania to defendant, who made partial payment, leaving a balance due and owing of approximately $7,500. Thereafter, plaintiff commenced the instant suit by service of a summons and complaint on defendant as an individual. Defendant moved pursuant to CPLR 3211 (subd [a], pars 7, 8) to dismiss the complaint. Under paragraph 7 defendant claimed that the complaint failed to state a cause of action since plaintiff had never transacted with him as an individual. Defendant contended that at all times plaintiff had transacted business with “Ken Fegely Building Co., Inc.”, a Pennsylvania corporation. Under paragraph 8 defendant inartfully asserted that even if plaintiff had dealt with him in his individual capacity, a New York court could not .exercise in personam jurisdiction over him since he was a Pennsylvania resident and had no minimum contacts with this State. Special Term granted the motion to dismiss “pursuant to CPLR [996]*9963211 (a) (8)”, even though there was some confusion in the papers submitted on the motion as to whether the issue of in personam jurisdiction had been raised. This court is satisfied that the issue was adequately raised and that plaintiff failed to sustain its burden of proving (Lamarr v Klein, 35 AD2d 248, affd 30 NY2d 757) that defendant was subject to in personam jurisdiction in this State (cf. Katz & Son Billiard Prods. v Correale & Sons, 26 AD2d 52, affd 20 NY2d 903). Accordingly, Special Term’s order must be affirmed. Lazer, J. P., Mengano, Gibbons and Cohalan, JJ., concur.

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In an action to recover for goods sold and delivered, plaintiff appeals from an order of the Supreme Court, Nassau County, dated November 26,1979, which granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 8). Order affirmed, without costs or disbursements. Defendant, a Pennsylvania resident, purchased certain goods from plaintiff, a New York corporation with its principal place of business in Nassau County. The goods were delivered in Pennsylvania to defendant, who made partial payment, leaving a balance due and owing of approximately $7,500. Thereafter, plaintiff commenced the instant suit by service of a summons and complaint on defendant as an individual. Defendant moved pursuant to CPLR 3211 (subd [a], pars 7, 8) to dismiss the complaint. Under paragraph 7 defendant claimed that the complaint failed to state a cause of action since plaintiff had never transacted with him as an individual. Defendant contended that at all times plaintiff had transacted business with “Ken Fegely Building Co., Inc.”, a Pennsylvania corporation. Under paragraph 8 defendant inartfully asserted that even if plaintiff had dealt with him in his individual capacity, a New York court could not .exercise in personam jurisdiction over him since he was a Pennsylvania resident and had no minimum contacts with this State. Special Term granted the motion to dismiss “pursuant to CPLR [996]*9963211 (a) (8)”, even though there was some confusion in the papers submitted on the motion as to whether the issue of in personam jurisdiction had been raised. This court is satisfied that the issue was adequately raised and that plaintiff failed to sustain its burden of proving (Lamarr v Klein, 35 AD2d 248, affd 30 NY2d 757) that defendant was subject to in personam jurisdiction in this State (cf. Katz & Son Billiard Prods. v Correale & Sons, 26 AD2d 52, affd 20 NY2d 903). Accordingly, Special Term’s order must be affirmed. Lazer, J. P., Mengano, Gibbons and Cohalan, JJ., concur.

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Bluebook (online)

79 A.D.2d 995, 435 N.Y.S.2d 24, 1981 N.Y. App. Div. LEXIS 9891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/court-planners-investor-services-ltd-v-fegely-nyappdiv-1981.

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