D & R Global Selections, S.L., Plaintiff–Respondent, v. Bodega Olegario Falcon Pineiro, Defendant–Appellant. (2015)

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Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered on or about August 26, 2013, which granted plaintiff's motion to reargue and, upon reargument, denied defendant's motion for summary judgment, unanimously reversed, on the law, without costs, and the motion granted.   The Clerk is directed to enter judgment dismissing the complaint.

As defendant neither is incorporated in New York State nor has its principal place of business here, New York courts may not exercise jurisdiction over it under CPLR 301 (Daimler AG v. Bauman, _ U.S. _, 134 SCt 746 (2014), Magdalena v. Lins, 123 AD3d 600 [1st Dept 2014] ).   Therefore, the courts have no subject matter jurisdiction over this action pursuant to Business

Corporation Law § 1314(b)(5) (see ABKCO Indus. v. Lennon, 52 A.D.2d 435, 440 [1st Dept 1976] ).

Nor is there subject matter jurisdiction under Business Corporation Law § 1314(b)(4), which depends on personal jurisdiction under CPLR 302.  CPLR 302 authorizes the exercise of personal jurisdiction over a nondomiciliary “if the cause of action at issue arose out of the transaction of business within the State” (McGowan v. Smith, 52 N.Y.2d 268, 271 [1981] ).   We find that defendant's visits to New York to promote its wine constitute the transaction of business here (see Longines–Wittnauer Watch Co. v Barnes & Reinecke, 15 N.Y.2d 443, 455 [1965], cert denied 382 U.S. 905 [1965] ).   However, there is no substantial nexus between plaintiff's claim for unpaid commissions in connection with the sales of that wine, pursuant to an agreement made and performed wholly in Spain, and those promotional activities (see McGowan, 52 N.Y.2d at 268).

Defendant's request for sanctions was not raised before the motion court and was resolved against him on his pre-appeal motion before this Court.   Were we to reach the merits again on this appeal, we would again deny the request.

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CLERK