HOLDINGS INC v. PAFUNDI (2004)

Appeal from an order of the Supreme Court (Sise, J.), entered September 2, 2003 in Washington County, which, inter alia, granted defendant's cross motion for summary judgment dismissing the complaint.

In February 2003, a Vermont court determined that defendant, a Virginia domiciliary, adversely possessed 22 acres of real property which plaintiff claimed it had purchased in 1992.   Plaintiff, a Vermont corporation with a principal place of business in New York, commenced this action seeking to recoup the real property taxes it allegedly paid on the 22-acre parcel.   Following joinder of issue, plaintiff sought permission to file a late response to a notice to admit served by defendant and defendant cross-moved for summary judgment dismissing the complaint.   Supreme Court, finding no personal jurisdiction of defendant, granted her cross motion and denied plaintiff's motion as moot.   Plaintiff appeals and we affirm.

 Defendant preserved her objection to personal jurisdiction by asserting the affirmative defense in her answer (see CPLR 3018[b];  3211[e];  Gager v. White, 53 N.Y.2d 475, 483, 442 N.Y.S.2d 463, 425 N.E.2d 851 [1981], cert. denied sub nom. Guertin Co. v. Cachat, 454 U.S. 1086, 102 S.Ct. 644, 70 L.Ed.2d 621 [1981] ). Plaintiff, nevertheless, argues that defendant waived this defense by interposing a counterclaim seeking monetary sanctions pursuant to CPLR 8303-a and 22 NYCRR part 130.   The assertion of an unrelated counterclaim will result in a waiver of the defense of lack of personal jurisdiction.   A counterclaim is related when it must be raised in order to avoid the preclusive effect of the principles of collateral estoppel (see Textile Tech. Exch. v. Davis, 81 N.Y.2d 56, 58-59, 595 N.Y.S.2d 729, 611 N.E.2d 768 [1993] ).   Defendant's counterclaim is based on her assertion that plaintiff maliciously and frivolously instituted this action.   Were plaintiff to be successful in its action, defendant's counterclaim would necessarily fail and the principles of collateral estoppel would prevent relitigation.   Thus, defendant's counterclaim is “related” to plaintiff's claim and her defense of lack of personal jurisdiction has not been waived.

 Second, plaintiff claims that the long-arm statute (see CPLR 302 [a] ) confers jurisdiction over defendant.   In this regard, plaintiff maintains that defendant had the requisite minimum contacts with this state since defendant lived in the state prior to 2000, has family which currently resides in the state, owns a parcel of vacant land (not the subject of this action) in the state, and has made short visits to this state within the past three years (see International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 [1945];  Birdsall v. Melita, 260 A.D.2d 809, 810, 688 N.Y.S.2d 283 [1999], lv. denied 93 N.Y.2d 812, 695 N.Y.S.2d 541, 717 N.E.2d 700 [1999] ).   Despite these minimum contacts with the state, plaintiff has failed to submit any evidence which would establish that any of the jurisdictional categories specified in CPLR 302(a) exist (see Bunkoff Gen. Contrs. v. State Automobile Mut. Ins. Co., 296 A.D.2d 699, 700, 745 N.Y.S.2d 247 [2002] ).   Notably, the causes of action asserted by plaintiff are equitable in nature.   Moreover, the taxes at issue were paid in Vermont, the location of the property.   Since the situs of the injury is the location of the original event which caused the injury, plaintiff has not suffered any injury in this state as a result of its payment of these taxes (see Ingraham v. Carroll, 235 A.D.2d 778, 778-779, 652 N.Y.S.2d 361 [1997], affd. 90 N.Y.2d 592, 665 N.Y.S.2d 10, 687 N.E.2d 1293 [1997];  Greenberg, Inc. v. Sir-Tech Software, 297 A.D.2d 834, 836-837, 746 N.Y.S.2d 736 [2002] ).   Thus, plaintiff has failed to establish sufficient justification for New York to exercise personal jurisdiction over defendant in this action (see Roddy v. Schmidt, 57 N.Y.2d 979, 982, 457 N.Y.S.2d 234, 443 N.E.2d 482 [1982] ).

ORDERED that the order is affirmed, with costs.

MUGGLIN, J.

CREW III, J.P., PETERS, CARPINELLO and LAHTINEN, JJ., concur.