Yanni v. Variety, Inc.

48 A.D.2d 803, 369 N.Y.S.2d 448, 1975 N.Y. App. Div. LEXIS 9994

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 1975
• Status: Published

Opinion

Order entered October 2, 1974, in the Supreme Court, New York County, unanimously reversed, on the law, and the motion of defendant-appellant Don Ross (appellant) to dismiss the complaint is granted and the action severed as to defendant-appellant. Appeal from order entered January 6, 1975, dismissed. Defendant-appellant shall recover of plaintiff-respondent one bill of $60 costs and disbursements. Pláintiff commenced this action to recover damages for an alleged libel contained in an advertisement placed by appellant in a California newspaper Daily Variety. Appellant moved pursuant to CPLR 3211 (subd [a], par 8) to dismiss the amended complaint on the ground that the court had no personal jurisdiction of appellant pursuant to CPLR 302. Special Term found that personal jurisdiction was not obtainable under CPLR 302 (subd [a], pars 2, 3) but concluded that such jurisdiction was obtainable under CPLR 302 (subd [a], par 1), on the theory that appellant through the newspaper advertisement transacted business in New York State. We disagree. Appellant, a California resident, placed the advertisement in California in a California publication, which had at most a minimal distribution in New York through mail subscriptions, no copies being sold on newsstands. Appellant took no part in or exercised any control over the distribution in New York, nor was his economic interest furthered by such distribution. There is grave doubt that appellant was even aware of any New York distribution. We do not find on this record that appellant may fairly be held to have transacted business in New York within the meaning of the statute (Strelsin v Barrett, 36 AD2d 923). Concur—Stevens, P. J., Kupferman, Murphy, Lane and Nunez, JJ.