Cwick v. City of Rochester

107 A.D.2d 1077, 486 N.Y.S.2d 549, 1985 N.Y. App. Div. LEXIS 42899

Opinion

— Order unanimously affirmed, without costs. Memorandum: Holding that there was a lack of personal jurisdiction, Special Term, pursuant to CPLR 3211 (subd [a], par 8), dismissed the third-party action brought by the Joint Venture (see Cwick v City of Rochester [appeal No. 1], 107 AD2d 1072) against Bev Morgan, a California resident who allegedly designed the diving mask plaintiff’s intestate was wearing at the time of his death. On appeal, third-party plaintiff limits the issue to whether personal jurisdiction exists under CPLR 302 (subd [a], par 3, cl [ii]). We affirm. There is no evidence contradicting Morgan’s averments that he derived no revenue from interstate commerce; thus, the requirements of this section have not been met (see Parker v Green, 63 AD2d 977). There is no need to consider third-party plaintiff’s argument that the activities of Kirby-Morgan Corp., by whom Morgan was employed, should be attributed to Morgan for purposes of finding jurisdiction. In any event there is no evidence that Kirby-Morgan Corp. derived substantial revenue from interstate commerce. (Appeal from order of Supreme Court, Monroe County, John J. Conway, J. — dismiss causes of action.) Present — Dillon, P. J., Hancock, Jr., Callahan, Denman and Green, JJ.