POPESCU v. FOREXWARE LLC (2018)

Order, Supreme Court, New York County (Eileen Bransten, J.), entered on or about January 12, 2017, which denied defendant's motion, made pursuant to CPLR 3211(a)(1), (7), and (8), to dismiss the complaint, unanimously affirmed, with costs.

The motion court correctly determined that personal jurisdiction exists over defendant pursuant to CPLR 302(a)(1). The complaint, as supplemented by plaintiff's affidavit and the contracts at issue, alleges that defendant breached an employment agreement that was substantially negotiated in New York, where defendant's principal place of business was located, and that while plaintiff may have been based in Boston, he regularly traveled to New York in discharge of his duties pursuant to the employment agreement, including reporting to defendant's chair and controlling shareholder based in New York (see Scheuer v. Schwartz, 42 A.D.3d 314, 316, 839 N.Y.S.2d 485 [1st Dept. 2007];  Katz Agency v. Heftel Broadcasting Corp., 56 A.D.2d 758, 759, 392 N.Y.S.2d 39 [1st Dept. 1977];  Fischbarg v. Doucet, 9 N.Y.3d 375, 385, 849 N.Y.S.2d 501, 880 N.E.2d 22 [2007] ).

The complaint, supplemented by plaintiff's affidavit, gave defendant notice of the actions and occurrences that plaintiff intends to prove (CPLR 3013) sufficient to state a cause of action for breach of the employment agreement.  Further, the notice of termination does not “utterly refute[ ]” plaintiff's claim (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002] ).  Whether plaintiff's employment was terminated for cause is the crux of this dispute, and the notice of termination, which provides no factual basis for the conclusion that plaintiff violated company policies, is merely evidence of defendant's position.  It does not conclusively establish that any such policies were actually violated or that violation of such policies constituted “cause” as narrowly defined in the employment agreement.