Huxley Barter Corp. v. Considar, Inc.

216 A.D.2d 24, 627 N.Y.S.2d 639, 1995 N.Y. App. Div. LEXIS 6057

Opinion

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about March 10, 1994, which granted the motion of defendants Considar Europe ("Europe”) and Considar Benelux ("Benelux”) to dismiss the complaint pursuant to CPLR 3211 (a) (8), unanimously affirmed, without costs.

The Special Referee’s report and recommendation to dismiss the complaint against the two foreign defendants for lack of personal jurisdiction, and the IAS Court’s confirmation of said report and recommendation, is amply supported by the record (Namer v 152-54-56 W. 15th St. Realty Corp., 108 AD2d 705). While a parent-subsidiary relationship exists between Europe and Considar, Inc. ("USA”), the evidence demonstrates that at the time the instant action was commenced (see, Lancaster v Colonial Motor Frgt. Line, 177 AD2d 152), inter alia, only plaintiff and USA entered into the relevant contract; neither Europe nor Benelux has any traditional indicia of corporate presence in New York; there is insufficient proof that USA is either an agent or department of Europe or Benelux (see, Bialek v Racal-Milgo, Inc., 545 F Supp 25; Taca Intl. Airlines v Rolls-Royce of England, 15 NY2d 97); there is no proof that USA performs business functions that Europe or Benelux could perform if they were present here (see, Frummer v Hilton Hotels Intl., 19 NY2d 533, 537, cert denied 389 US 923); and, any tortious acts alleged by plaintiff occurred in Europe and caused injury in Europe (see, CPLR 302 [a] [3]). Moreover, while there is common ownership amongst the defendant corporations, there has been no interference by Europe (the parent) in the selection of the subsidiaries’ executive personnel, no failure to observe corporate formalities, and no control of the subsidiaries’ operational policies by the parent (see, Palmieri v Estefan, 793 F Supp 1182, 1189-1190). Concur—Ellerin, J. P., Kupferman, Asch and Williams, JJ.