Lancaster v. Colonial Motor Freight Line, Inc.

177 A.D.2d 152, 581 N.Y.S.2d 283, 1992 N.Y. App. Div. LEXIS 2730
CourtAppellate Division of the Supreme Court of the State of New York
DecidedFebruary 25, 1992
StatusPublished
Cited by54 cases

This text of 177 A.D.2d 152 (Lancaster v. Colonial Motor Freight Line, Inc.) 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
Lancaster v. Colonial Motor Freight Line, Inc., 177 A.D.2d 152, 581 N.Y.S.2d 283, 1992 N.Y. App. Div. LEXIS 2730 (N.Y. Ct. App. 1992).

Opinion

OPINION OF THE COURT

Ellerin, J.

The issue before us on this appeal is the showing that must be made in order to subject nondomiciliaries, specifically a foreign corporation and a nonresident individual, to the personal jurisdiction of the courts of this State.

On August 24, 1987, plaintiff was seriously injured in an accident which occurred in Kershaw County, South Carolina, while she was a passenger in a vehicle operated by Minerva [155]*155Josey, a New York resident, who was killed in the accident. The instant action was instituted in August 1990 in Bronx County, the county of residence of the administrator of decedent Josey’s estate, who is a named defendant. The appellants on this appeal are the other named defendants in the action, Kenneth Carter, the driver of a tractor-trailer which was also involved in the accident, and his then employer and the owner of the truck, Colonial Motor Freight Line, Inc. (Colonial).

After plaintiffs moved to dismiss various defenses, defendants-appellants cross-moved to dismiss the action for lack of personal jurisdiction as to each of them. Defendants-appellants’ moving papers included a sworn statement by a former vice-president of Colonial that the corporation had ceased doing business entirely in 1988. This statement was not controverted by plaintiff, who appears to have been aware of Colonial’s defunct status, since the action is captioned as against Colonial "and its Successor”, without specification. In seeking to defeat the cross motion, plaintiff presented some evidence that Colonial’s trucks had been used in the past to ship goods to locations in New York and argued that she had had insufficient time to respond and should be allowed additional time to gather more information to enable her to establish jurisdiction. The LAS court denied the cross motion to dismiss, with leave to renew upon completion of discovery.

At the outset, we reject plaintiff’s argument that the subject order is not appealable as of right because it was conditionally denied with leave to renew upon completion of disclosure (see, 7 Weinstein-Korn-Miller, NY Civ Prac ¶ 5701.16). In conditionally denying defendants’ cross motion to dismiss for lack of personal jurisdiction, the IAS court was apparently relying on the ground set forth in CPLR 3211 (d), which authorizes such denial where it appears from affidavits submitted in opposition that "facts essential to justify opposition may exist but cannot then be stated”. In the instant case, however, we find that, in light of appellants’ uncontested proof, plaintiff failed to demonstrate the necessary possibility that further disclosure would reveal facts that could render defendants subject to the jurisdiction of the courts of this State and that the cross motion to dismiss should have been granted as a matter of law.

It is not in dispute that appellants are a foreign corporation and its employee who as nondomiciliaries of this State, are not subject to our courts’ jurisdictional reach in the traditional sense. Plaintiff seeks to invoke such jurisdiction primar[156]*156ily on the ground that the appellants were "present” and "doing business” within the State (CPLR 301) and, alternatively, on the basis of long-arm jurisdiction (CPLR 302).

Jurisdiction based on the fact that a foreign corporation is doing business in New York is historically founded on the traditional common-law concept that the State has power to exercise jurisdiction over those who are within its borders regardless of whether they have expressly consented to be subjected to such jurisdiction (Pennoyer v Neff, 95 US 714). As Judge Cardozo long ago stated, "All that is requisite is that enough be done to enable us to say that the corporation is here * * * If it is here it may be served” (Tauza v Susquehanna Coal Co., 220 NY 259, 268). This common-law concept was statutorily recognized in CPLR 301, which provides, simply, that "[a] court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore”.

Extensive case law has evolved defining the nature and quality of the corporate activities which would be necessary to establish that a corporation is within New York " 'not occasionally or casually, but with a fair measure of permanence and continuity’ ” (Landoil Resources Corp. v Alexander & Alexander Servs., 77 NY2d 28, 34; Tauza v Susquehanna Coal Co., supra, at 267) so as to show that it is "doing business” (see generally, Siegel, NY Prac §§ 82, 83). While an examination of the various factual permutations which have been held to constitute "doing business” is not necessary to our decision here, what is essential is to note that a fundamental sine qua non of all such holdings is the requirement that defendant be shown to have been "doing business” at the time when the action was commenced (see, Gaboury v Central Vt. Ry. Co., 250 NY 233, 236-237). This is crucial to the concept of "presence” upon which the jurisdiction is based, since the defendant corporation must be "here” and therefore subject to the State’s power, at the very time of the exercise of the jurisdiction itself. Once it is established that the corporation was doing business at such time, personal jurisdiction will be acquired over the corporation for any cause of action asserted against it, no matter where the events occurred which give rise to that cause of action. (Bryant v Finnish Natl. Airline, 15 NY2d 426; Public Adm’r of County of N. Y. v Royal Bank, 19 NY2d 127.) In this case, the sharply contested issue of whether Colonial may at some time in the past have done or transacted business in New York would ultimately be irrele[157]*157vant. Since it is not denied that Colonial had entirely ceased its operations in 1988, it would be impossible to demonstrate that it was "doing business” here some two years later, in August 1990, the crucial time period when the action was commenced. Accordingly, plaintiffs attempt to rely on CPLR 301 as a basis for invoking personal jurisdiction against Colonial must fail as a matter of law.

Plaintiffs attempt to posit jurisdiction on CPLR 302 is equally unavailing. In recognition of twentieth century realities, the stringent requirements enunciated in Pennoyer v Neff (supra) of either consent or "presence” of the nondomiciliary at the time of the commencement of the action as a necessary predicate for personal jurisdiction, were ameliorated by the watershed decision in International Shoe Co. v Washington (326 US 310), which established the alternative concept of "long-arm jurisdiction”. The Supreme Court there held that due process permits each State to exercise jurisdiction over those who have established "sufficient contacts or ties with the state of the forum to make it reasonable and just, according to our traditional conception of fair play and substantial justice, to permit the state to enforce the obligations which [defendant] has incurred there” (supra, at 320). Thus, under International Shoe and its progeny, even those corporations which are undeniably not "doing business” here at the time the action is commenced, may be subject to personal jurisdiction if they have performed an act or acts within the State which sufficiently relate to the harm which is the subject of the lawsuit. In this State, the parameters of such jurisdiction are set forth in CPLR 302.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Behre Piano Assoc., Inc. v. Suchomel
2024 NY Slip Op 33850(U) (New York Supreme Court, New York County, 2024)
Langella v. Amchem Prods., Inc.
2024 NY Slip Op 32972(U) (New York Supreme Court, New York County, 2024)
Miranda v. Castillo De La Cruz
2024 NY Slip Op 32381(U) (New York Supreme Court, New York County, 2024)
JMRNNY Doe v. Opus Dei
2024 NY Slip Op 31999(U) (New York Supreme Court, New York County, 2024)
Fulton v. Newkirk
M.D. Pennsylvania, 2024
Newton v. Meyer
S.D. New York, 2023
Sen v. GR Realty Holdings LLC
159 N.Y.S.3d 679 (Appellate Division of the Supreme Court of New York, 2022)
Powers-Barnhard v. Butler
N.D. New York, 2020
Bah v. Apple Inc.
S.D. New York, 2020
Leuthner v. Homewood Suites Ex Rel. Hilton
2017 NY Slip Op 5212 (Appellate Division of the Supreme Court of New York, 2017)
Jonas v. Estate of Leven
116 F. Supp. 3d 314 (S.D. New York, 2015)
Stroud v. Tyson Foods, Inc.
91 F. Supp. 3d 381 (E.D. New York, 2015)
Elsevier, Inc. v. Grossman
77 F. Supp. 3d 331 (S.D. New York, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
177 A.D.2d 152, 581 N.Y.S.2d 283, 1992 N.Y. App. Div. LEXIS 2730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lancaster-v-colonial-motor-freight-line-inc-nyappdiv-1992.