Joseph v. Siebtechnik

172 A.D.2d 1056, 571 N.Y.S.2d 410, 1991 N.Y. App. Div. LEXIS 6328

Opinion

Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: On a motion to dismiss for lack of personal jurisdiction pursuant to CPLR 3211 (a) (8), plaintiff has the burden of establishing the fact of jurisdiction (Derso v Volkswagen of Am., 159 AD2d 937, 938; Cato Show Print. Co. v Lee, 84 AD2d 947, appeal dismissed 56 NY2d 593). In opposition to defendant’s motion, plaintiff submitted affidavits of two attorneys. Neither of these affidavits included any factual allegations regarding jurisdiction. The thrust of both affidavits was to suggest erroneously that defendant had failed to sustain its burden of proof. Under the circumstances, defendant’s motion to dismiss should have been granted (see, Schumacher v Sea Craft Indus., 101 AD2d 707). (Appeal from Order of Supreme Court, Niagara County, Koshian, J.—Dismiss Complaint.) Present—Callahan, J. P., Doerr, Green, Balio and Lowery, JJ.