STELLA v. DOAK (2023)

The following papers were read and considered on Defendant's pre-answer motion to dismiss for lack of personal jurisdiction:

Document: NYSCEF Doc. No(s).:

NOTICE OF MOTION 4

AFFIRMATION IN SUPPORT 5

AFFIDAVIT IN SUPPORT and EXHIBIT 1 6—7

MEMORANDUM OF LAW IN SUPPORT 8

AFFIRMATION IN OPPOSITION 14

AFFIDAVIT IN OPPOSITION and EXHIBIT A 15—16

REPLY AFFIRMATION 20

REPLY AFFIDAVIT and EXHIBIT 2 21—22

Plaintiff commenced this action on February 7, 2023, asserting claims for replevin and declaratory judgment regarding possession of two dogs. The dogs are owned jointly by the parties and resided with both of them while they lived together in New York. In April 2022, Defendant moved to Massachusetts where he still resides. For several months thereafter, the parties exchanged possession of the dogs every two to three weeks. Plaintiff alleges that in September 2022, Defendant picked the dogs up from his home ostensibly pursuant to their ongoing custody arrangement, but that Defendant refused to return them and is still in possession of the dogs.

Defendant was served with the summons and complaint by “nail and mail” service in Massachusetts on March 16, 2023. Prior to answering the complaint, on April 6, 2023, Defendant filed the instant motion to dismiss pursuant to CPLR 3211(a)(8), asserting that this Court lacks personal jurisdiction over him. The motion was originally returnable on April 24, 2023 but at Plaintiff's counsel's request the motion was adjourned to May 2, 2023, then to May 5, 2023, then at Defendant's request to May 10, 2023.

Defendant argues that there is no long-arm jurisdiction over him under CPLR 302, and that an assertion of personal jurisdiction would violate his due process rights under the U.S. Constitution. In opposition, Plaintiff argues that long-arm jurisdiction is proper pursuant to CPLR 302(a)(2), on the basis that Defendant committed the alleged tortious act in New York, namely, taking possession of the dogs under false pretenses and failing to return them, and that Defendant has maintained sufficient other contacts with New York to satisfy due process concerns.

Where a non-resident defendant challenges personal jurisdiction, the Court must engage in a two-step inquiry: first, it must be determined “whether [New York's] long-arm statute (CPLR 302) confers jurisdiction over [the defendant] in light of [his] contacts with this State;” and second, if the statutory requirements are met, the Court must “determine whether the exercise of jurisdiction comports with due process” (LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210, 214 [2000]). Regarding the burden of proof:

The party seeking to assert personal jurisdiction bears the ultimate burden of proof to establish a basis for such jurisdiction. However, to successfully oppose a CPLR 3211(a)(8) motion to dismiss for lack of personal jurisdiction, the plaintiff need only make a prima facie showing that the defendant was subject to the personal jurisdiction of the court. The facts alleged in the complaint and affidavits in opposition to such a motion to dismiss are deemed true and construed in the light most favorable to the plaintiff, and all doubts are to be resolved in favor of the plaintiff.

(WCVAWCK-Doe v Boys & Girls Club of Greenwich, Inc., 188 NYS3d 98, 104 [2d Dept 2023] (internal quotations and citations omitted)).

As noted above, Plaintiff asserts that this Court has jurisdiction over Defendant pursuant to CPLR 302(a)(2). The statute provides, in relevant part: “As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary ․ who in person or through an agent ․ commits a tortious act within the state” (CPLR 302[a][2]). Long-arm jurisdiction under CPLR 302(a)(2) “requires that a defendant's act or omission occur within the State” (Kramer v Vogl, 17 NY2d 27 [1966]).

An action for replevin sounds in tort (Smith v Scott, 294 AD2d 11 [2d Dept 2002]) and seeks to establish the plaintiff's superior right to possession of personal property (Melrose Credit Union v Matatov, 187 AD3d 1009 [2d Dept 2020]). Where the defendant originally came into possession of the property lawfully, a claim for replevin does not lie until the plaintiff demands the return of the property and the demand is refused (Solomon R. Guggenheim Found. v Lubell, 77 NY2d 311 [1991]). The demand requirement does not apply, however, where the property was converted or obtained in bad faith and remains in the possession of the wrongdoer. Under these latter circumstances, a replevin claim accrues once the wrongdoer takes possession of the property. (id. at 318; Swain v Brown, 135 AD3d 629 [1st Dept 2016]).

While the parties do not dispute that Defendant was in Massachusetts when he refused to return the dogs pursuant to their ongoing time-sharing arrangement, Plaintiff alleges in his opposition that Defendant picked up the dogs in New York under false pretenses and therefore unlawfully with the intent to keep them from their joint custodian. Taking these allegations as true and construing them in a light favorable to Plaintiff, which the Court is required to do (WCVAWCK-Doe, 188 NYS3d at 104), Plaintiff has properly alleged that Defendant's tortious conduct occurred in New York. Therefore, the Court has personal jurisdiction over him under CPLR 302(a)(2). It would be an illogical misapplication of the law to hold that despite the alleged wrongful taking in New York it is only the location of Defendant at the time of his refusal of Plaintiff's request to return the dogs that is determinative of jurisdiction. That would mean that an individual would be free of New York's jurisdiction over his tortious taking in New York as long as he took the property out of state and while out of state refused a request to return it.

Further, the exercise of personal jurisdiction by this Court does not violate Defendant's due process rights. “A forum State's exercise of jurisdiction over an out-of-state intentional tortfeasor must be based on intentional conduct by the defendant that creates the necessary contacts with the forum” (Walden v. Fiore, 571 US 277, 286 [2014]). The Second Department has recently held that a single tortious act committed in New York furnishes sufficient “minimum contacts” between an out-of-state defendant and this State to confer personal jurisdiction in a lawsuit based on that act (WCVAWCK-Doe, 188 NYS3d at 108—110). This is precisely the situation alleged by Plaintiff here, and Defendant does not make a “compelling case” that the exercise of personal jurisdiction over him would otherwise be “unreasonable” (id. (quoting Burger King Corp. v Rudzewicz, 471 US 462, 105 S Ct 2174, 85 L Ed 2d 528 [1985])).

Based on the foregoing, it is hereby

ORDERED that Defendant's motion to dismiss for lack of personal jurisdiction is denied; and it is further

ORDERED that defendant shall serve an answer, if any, within ten (10) days after service of this Decision and Order with Notice of Entry which Plaintiff shall effectuate on or before June 30, 2023; and it is further

ORDERED that a preliminary conference shall be held July 19, 2023 at 9:15 a.m.

The foregoing constitutes the decision and order of the Court.

Maria G. Rosa, J.