LEILI v. Joseph Dimyan, Defendant. (2024)

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered March 8, 2023, which denied plaintiff's motion to reject the report of the Special Referee dated June 7, 2022, confirmed the report, and granted the motion of defendants Joseph Romanello and the Romanello Law Firm, LLC (Romanello) for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The burden of proving jurisdiction is on the party asserting it (Jacobs v. Zurich Ins. Co., 53 A.D.2d 524, 525 [1st Dept 1976]), and in this case, Supreme Court providently exercised its discretion when it confirmed the Special Referee's report finding that plaintiff failed to meet his burden of proving that the court had personal jurisdiction over Romanello.  CPLR 302(a) provides for New York jurisdiction over a nondomiciliary where the person, or through an agent, (1) transacts any business within the state or contracts anywhere to supply goods or services in the state;  or (2) commits a tortious act within the state.  For an out-of-state attorney to be subject to personal jurisdiction under CPLR 302(a)(1) for transacting business within the state, he or she must project “[themselves] into New York to perform services and purposefully [avail themselves] of the privileges and benefits of performing such services in the state” (Liberatore v. Calvino, 293 A.D.2d 217, 220 [1st Dept 2002]).

Even if plaintiff signed the subject retainer agreement, there was no testimony that the retainer agreement was counter-signed by Romanello.  Moreover, the unsigned form of the retainer agreement only contemplated work in Connecticut as it cited the sliding scale for the attorney fee from a statute in Connecticut, and the retainer agreement contained a self-executing clause that the representation would immediately cease should there be a negative medical review.  Moreover, “[t]he mere creation of an agency for some purpose does not automatically invest the agent with ‘apparent authority’ to bind the principal without limitation” (Ford v. Unity Hosp., 32 N.Y.2d 464, 472 [1973]).  “An agent's power to bind [the] principal is coextensive with the principal's grant of authority” (id.).  Based on the testimony, Joseph Romanello and Dimyan clearly worked together in matters prior to the SDNY action;  however, the Special Referee correctly found that Joseph Romanello advised plaintiff of the negative medical review, and advised plaintiff that he would no longer be representing him in this matter.  Plaintiff's contention that the fully executed retainer agreement was spoliated, even if asserted in a footnote, was unpreserved (see Altman v. Fortune Brands, 268 A.D.2d 231, 231–232 [1st Dept 2000]).  Based on conflicting affidavits, a reference to determine jurisdiction was proper (see Shea v. Hambro Am., 200 A.D.2d 371, 372 [1st Dept 1994]).