D&R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro

Appellate Division of the Supreme Court of New York

D&R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro

128 A.D.3d 486, 9 N.Y.S.3d 234

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

DecidedMay 14, 2015

Docket15087 603732/07

StatusPublished

This text of 128 A.D.3d 486 (D&R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro) 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

D&R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro, 128 A.D.3d 486, 9 N.Y.S.3d 234 (N.Y. Ct. App. 2015).

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Opinion

*487 Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered on or about August 26, 2013, which granted plaintiffs motion to reargue and, upon reargument, denied defendant’s motion for summary judgment, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.

As defendant neither is incorporated in New York State nor has its principal place of business here, New York courts may not exercise jurisdiction over it under CPLR 301 (Daimler AG v Bauman, 571 US —, 134 S Ct 746 [2014]; Magdalena v Lins, 123 AD3d 600 [1st Dept 2014]). Therefore, the courts have no subject matter jurisdiction over this action pursuant to Business Corporation Law § 1314 (b) (5) (see ABKCO Indus. v Lennon, 52 AD2d 435, 440 [1st Dept 1976]).

Nor is there subject matter jurisdiction under Business Corporation Law § 1314 (b) (4), which depends on personal jurisdiction under CPLR 302. CPLR 302 authorizes the exercise of personal jurisdiction over a nondomiciliary “if the cause of action at issue arose out of the transaction of business within the State” (McGowan v Smith, 52 NY2d 268, 271 [1981]). We find that defendant’s visits to New York to promote its wine constitute the transaction of business here (see Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, 455 [1965], cert denied 382 US 905 [1965]). However, there is no substantial nexus between plaintiffs claim for unpaid commissions in connection with the sales of that wine, pursuant to an agreement made and performed wholly in Spain, and those promotional activities (see McGowan, 52 NY2d at 268).

Defendant’s request for sanctions was not raised before the motion court and was resolved against him on his pre-appeal motion before this Court. Were we to reach the merits again on this appeal, we would again deny the request. Concur — Tom, J.P., Sweeny, Andrias, Moskowitz and Gische, JJ.

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*487 Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered on or about August 26, 2013, which granted plaintiffs motion to reargue and, upon reargument, denied defendant’s motion for summary judgment, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.

As defendant neither is incorporated in New York State nor has its principal place of business here, New York courts may not exercise jurisdiction over it under CPLR 301 (Daimler AG v Bauman, 571 US —, 134 S Ct 746 [2014]; Magdalena v Lins, 123 AD3d 600 [1st Dept 2014]). Therefore, the courts have no subject matter jurisdiction over this action pursuant to Business Corporation Law § 1314 (b) (5) (see ABKCO Indus. v Lennon, 52 AD2d 435, 440 [1st Dept 1976]).

Nor is there subject matter jurisdiction under Business Corporation Law § 1314 (b) (4), which depends on personal jurisdiction under CPLR 302. CPLR 302 authorizes the exercise of personal jurisdiction over a nondomiciliary “if the cause of action at issue arose out of the transaction of business within the State” (McGowan v Smith, 52 NY2d 268, 271 [1981]). We find that defendant’s visits to New York to promote its wine constitute the transaction of business here (see Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, 455 [1965], cert denied 382 US 905 [1965]). However, there is no substantial nexus between plaintiffs claim for unpaid commissions in connection with the sales of that wine, pursuant to an agreement made and performed wholly in Spain, and those promotional activities (see McGowan, 52 NY2d at 268).

Defendant’s request for sanctions was not raised before the motion court and was resolved against him on his pre-appeal motion before this Court. Were we to reach the merits again on this appeal, we would again deny the request. Concur — Tom, J.P., Sweeny, Andrias, Moskowitz and Gische, JJ.

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Bluebook (online)

128 A.D.3d 486, 9 N.Y.S.3d 234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dr-global-selections-sl-v-bodega-olegario-falcon-pineiro-nyappdiv-2015.

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