Hopstein v. Cohen

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Attorney(S)

 Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Marshall D. Sweetbaum ], of counsel), for appellant. Lester B. Herzog, Brooklyn, NY, for respondents.

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Smart Summary

Factual and Procedural Background

On May 10, 2012, the plaintiffs, New York domiciliaries, allegedly sustained personal injuries in a motor vehicle accident occurring in New Jersey. They were passengers in a vehicle owned and operated by defendant Y.D. Brailofsky, a New York domiciliary. That vehicle was struck in the rear by a vehicle owned and operated by defendant Scott B. Cohen, a New Jersey resident. The plaintiffs commenced this personal injury action in the Supreme Court, Kings County, on May 6, 2014. The appellant, Cohen, was personally served with the summons and complaint at his New Jersey home on May 8, 2014. Cohen served an answer on July 24, 2014, raising the defense of lack of personal jurisdiction, which the plaintiffs rejected as untimely. Cohen then moved on July 29, 2014, pursuant to CPLR 3211(a)(8), to dismiss the complaint against him for lack of personal jurisdiction. The Supreme Court denied this motion in an order dated January 29, 2015, and directed Cohen to re-serve an answer without jurisdictional defenses. Cohen appealed this denial.

Legal Issues Presented

Whether the Supreme Court erred in denying the defendant Scott B. Cohen's motion to dismiss the complaint for lack of personal jurisdiction pursuant to CPLR 3211(a)(8).
Whether the defendant waived the defense of lack of personal jurisdiction by serving an answer raising that defense and subsequently moving to dismiss.
Whether the plaintiffs made a prima facie showing that New York's long-arm statute (CPLR 302) conferred personal jurisdiction over the defendant in this matter.
Whether the service of process on the defendant in New Jersey was valid given the jurisdictional issues.
Whether the defendant's motion to dismiss was timely under CPLR procedural rules.

Arguments of the Parties

Appellant's Arguments

The defendant contended that the Supreme Court lacked personal jurisdiction over him because the alleged negligence occurred in New Jersey, not New York.
Cohen argued that ownership of property in New York at some time does not establish jurisdiction under CPLR 302 where the cause of action does not arise from such ownership.
He maintained that he did not waive the defense of lack of personal jurisdiction because he timely raised it in his answer and moved to dismiss pursuant to CPLR 3211(a)(8).
The defendant asserted that service of process in New Jersey was invalid because New York courts lacked jurisdiction over him.
He argued his motion to dismiss was timely because the time to answer never began to run due to defective service.

Respondents' Arguments

The plaintiffs contended that the defendant waived the defense of lack of personal jurisdiction by serving an untimely answer raising that defense.
They argued that the defendant was subject to New York's long-arm statute and thus validly served.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Pichardo v. Zayas, 122 A.D.3d 699, 996 N.Y.S.2d 176	Plaintiff bears ultimate burden of proof on personal jurisdiction when contested.	Confirmed that plaintiffs must ultimately prove jurisdiction but only need a prima facie showing to oppose dismissal under CPLR 3211(a)(8).
Mejia–Haffner v. Killington, Ltd., 119 A.D.3d 912, 990 N.Y.S.2d 561	Clarifies burden of proof on jurisdictional issues.	Quoted to support the standard for showing personal jurisdiction.
Lang v. Wycoff Hgts. Med. Ctr., 55 A.D.3d 793, 866 N.Y.S.2d 313	Prima facie showing required to establish jurisdiction to oppose dismissal.	Applied to determine plaintiffs failed to meet prima facie showing under CPLR 302.
Johnson v. Ward, 4 N.Y.3d 516, 797 N.Y.S.2d 33, 829 N.E.2d 1201	Interprets CPLR 302 and scope of long-arm jurisdiction.	Used to support that ownership of property unrelated to cause of action does not confer jurisdiction.
Cadlerock Joint Venture, L.P. v. Kierstedt, 119 A.D.3d 627, 990 N.Y.S.2d 522	Defense of lack of personal jurisdiction not waived if properly raised.	Supported finding that defendant did not waive jurisdictional defense.
Frederic v. Israel, 104 A.D.3d 909, 960 N.Y.S.2d 918	Reinforces procedural rules on jurisdictional defenses.	Supported the conclusion that jurisdictional defense was properly preserved.
Ruffin v. Lion Corp., 15 N.Y.3d 578, 915 N.Y.S.2d 204, 940 N.E.2d 909	Service of process invalid if no jurisdiction.	Applied to hold that service on defendant was invalid due to lack of jurisdiction.

Court's Reasoning and Analysis

The court analyzed whether New York's long-arm statute (CPLR 302) conferred personal jurisdiction over the defendant. It held that the plaintiffs failed to make a prima facie showing that jurisdiction existed because the cause of action arose from an accident in New Jersey, not from any New York property ownership or activities. The court emphasized that mere past ownership of property in New York does not establish jurisdiction when unrelated to the cause of action. The defendant did not waive the jurisdictional defense because he timely raised it in his answer and moved to dismiss pursuant to CPLR 3211(a)(8). The court further held that service of process in New Jersey was invalid since the defendant was not subject to New York jurisdiction. Finally, the court found the defendant's motion to dismiss was timely because the time to answer never commenced due to defective service. Based on these legal principles and procedural rules, the court reversed the lower court's order and granted the motion to dismiss for lack of personal jurisdiction.

Holding and Implications

The court REVERSED the Supreme Court's order insofar as it denied the defendant's motion to dismiss for lack of personal jurisdiction, and GRANTED the motion pursuant to CPLR 3211(a)(8).

The direct effect of this decision is that the complaint against Scott B. Cohen was dismissed for lack of personal jurisdiction, invalidating the service of process upon him in New York. The opinion does not establish new precedent beyond applying established jurisdictional principles and procedural rules to the facts of this case.

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Meir N. HOPSTEIN, et al., respondents, v. Scott B. COHEN, appellant, et al., defendant.

Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Marshall D. Sweetbaum ], of counsel), for appellant.

Lester B. Herzog, Brooklyn, NY, for respondents.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE and BETSY BARROS, JJ.

In an action to recover damages for personal injuries, etc., the defendant Scott B. Cohen appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated January 29, 2015, as denied his motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Scott B. Cohen pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction is granted.

On May 10, 2012, the plaintiffs allegedly sustained personal injuries in a motor vehicle accident that occurred in the State of New Jersey. The plaintiffs, New York domiciliaries, allegedly were passengers in a vehicle owned and operated by the defendant Y.D. Brailofsky, a New York domiciliary. That vehicle allegedly was struck in the rear by a vehicle owned and operated by the defendant Scott B. Cohen (hereinafter the appellant), who resided in New Jersey. On May 6, 2014, the plaintiffs commenced this personal injury action against the defendants in the Supreme Court, Kings County. On May 8, 2014, the appellant was personally served with the summons and complaint at his home in New Jersey. On July 24, 2014, the appellant

served an answer raising the defense of lack of personal jurisdiction. The plaintiffs rejected the answer as untimely. On July 29, 2014, the appellant moved pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. In an order dated January 29, 2015, the Supreme Court, inter alia, denied the appellant's motion and directed the appellant to re-serve an answer without any jurisdictional defenses. We reverse insofar as appealed from.

“ ‘Although a plaintiff is not required to plead and prove personal jurisdiction in the complaint, where jurisdiction is contested, the ultimate burden of proof rests upon the plaintiff’ ” (Pichardo v. Zayas, 122 A.D.3d 699, 700, 996 N.Y.S.2d 176, quoting Mejia–Haffner v. Killington, Ltd., 119 A.D.3d 912, 914, 990 N.Y.S.2d 561 ). In opposing a motion to dismiss the complaint pursuant to CPLR 3211(a)(8) on the ground of lack of personal jurisdiction, “a plaintiff need only make a prima facie showing that such jurisdiction exists” (Lang v. Wycoff Hgts. Med. Ctr., 55 A.D.3d 793, 794, 866 N.Y.S.2d 313 [internal quotation marks omitted] ). Here, the plaintiffs failed to make a prima facie showing that personal jurisdiction over the appellant existed under New York's long-arm statute (see CPLR 302 ). The fact that the appellant may have owned property in New York at some time does not establish jurisdiction under CPLR 302 where, as here, the plaintiffs' negligence cause of action against the defendant did not arise out of such ownership of property, but rather, the operation of his vehicle in New Jersey (see CPLR 302[a][4] ; see generally Johnson v. Ward, 4 N.Y.3d 516, 519, 797 N.Y.S.2d 33, 829 N.E.2d 1201 ).

Contrary to the plaintiffs' contention, the appellant did not waive the defense of lack of personal jurisdiction, since he raised the defense in his answer and moved to dismiss the complaint pursuant to CPLR 3211(a)(8) (see CPLR 320[b] ; Cadlerock Joint Venture, L.P. v. Kierstedt, 119 A.D.3d 627, 628, 990 N.Y.S.2d 522 ; Frederic v. Israel, 104 A.D.3d 909, 910, 960 N.Y.S.2d 918 ). Since the appellant was not subject to the jurisdiction of New York under the long-arm statute, the plaintiffs' service of process upon him was not valid (see CPLR 313 ; Ruffin v. Lion Corp., 15 N.Y.3d 578, 583 n. 3, 915 N.Y.S.2d 204, 940 N.E.2d 909 ). Moreover, contrary to the plaintiffs' contention, the appellant's motion to dismiss the complaint was not untimely, since the time to answer the complaint never began to run (see CPLR 313 ; CPLR 320[a] ; CPLR 3211[e] ).

Accordingly, the Supreme Court should have granted the appellant's motion to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.