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Anna AYBAR, as Administratrix of the Estate of Crystal Cruz–Aybar, Jesenia Aybar, as Administratrix of the Estate of Noelia Oliveras and Jesenia Aybar, as Administratrix of the Estate of T.C., a deceased infant under the age of fourteen (14) years, Plaintiffs, v. COHEN, PLACITELLA & ROTH, PC, Joel Rosen, Christopher Placitella, Mark Goodheart, Jared Placitella, Nash, Tobias & Panitch, LLC, Frank Tobias, and Richard Panitch, Defendants.
The following papers numbered 1 to 14 read on this motion by defendants NASH, TOBIAS & PANITCH, LLC, FRANK TOBIAS, and RICHARD PANITCH (collectively hereinafter the NTP defendants) for an Order dismissing the complaint with prejudice in its entirety pursuant to CPLR 3211(a)(1), (a)(7), and (a)(8):
Notice of Motion–Affirmation–Exhibits–Affidavits–Memo. of Law 1–7
Affirmation in Opposition–Exhibits–Memo of Law 8–11
Reply Affirmation–Exhibits 12–14
By way of relevant background, in 2011, Jose A. Aybar, Jr. (Aybar) purchased a used 2002 Explorer from his cousin Jose Velez (Velez) together with a set of four Goodyear Wrangler tires. The tires were not installed on the vehicle. The tires had been kept in storage and were sold with the subject vehicle as an additional set of tires. On June 17, 2012, Aybar took the tires to an auto shop, U.S. Tires and Wheels of Queens, LLC (U.S. Tires), to be inspected and installed on the Explorer. U.S. Tires allegedly inspected the tires, told Aybar that they were suitable for use, and installed them on the Explorer. On July 1, 2012, plaintiffs were involved in a motor vehicle accident involving the subject Explorer.
In August 2012, plaintiffs retained the NTP defendants to represent them with respect to the accident. The NTP defendants executed an attorney-client contract with Orlando Gonzalez on August 2, 2012. The NTP defendants contacted Cohen, Placitella & Roth, PC (the CPR defendants) to act as co-counsel for the lawsuit. On June 10, 2013, Joel Rosen, Esq. of Cohen, Placitella & Roth, PC confirmed referral of the underlying action. On June 17, 2014, the CPR defendants filed the underlying action. By Consent to Change Attorney dated May 8, 2015, the CPR defendants withdrew as counsel for plaintiffs. Omrani & Taub, P.C. were substituted as plaintiffs' counsel.
On July 1, 2015, plaintiffs' new counsel, Omrani & Taub, P.C., filed an action against Ford and Goodyear asserting claims for personal injury and wrongful death on various theories of product liability (the Product Liability Action). Plaintiffs also asserted wrongful death and personal injury claims against the driver, Ayber, based on his operation of the vehicle at the time of the accident. Goodyear and Ford moved to dismiss the Product Liability Action for lack of jurisdiction pursuant to CPLR 3211(a)(8). By Orders dated May 25, 2016 and entered on May 31, 2016, the Court denied both Goodyear and Ford's motions to dismiss (Raffaele, J.). Goodyear and Ford have appealed the Orders denying their motions to dismiss. The appeal is currently pending. Goodyear and Ford then moved to dismiss pursuant to CPLR 3211(a)(5) on the grounds that the wrongful death claims are barred by the applicable statute of limitations. On April 20, 2017, the court in the Product Liability Action stayed all proceedings until the appeal is decided, and the motions to dismiss were denied with leave to renew after the stay is lifted.
Plaintiffs commenced this action by filing a summons and verified complaint on June 23, 2017, alleging that the NTP defendants' conduct was unreasonable and fell short of the standard of care in several respects, including but not limited to: failing to preserve critical evidence relating to the tires and/or the vehicle; failing to properly investigate potential claims against Goodyear and Ford; failing to obtain any expert witnesses to determine potential product liability claims against Goodyear and Ford; failing to properly communicate and advise plaintiffs regarding the potential wrongful death claims against Goodyear and Ford and the statute of limitations associated with those claims; and failing to timely file wrongful death claims on behalf of the deceased occupants against Goodyear and Ford. As of commencement of this action, Ford and Goodyear remain defendants in the Product Liability Action and all of plaintiffs' claims against them, including the wrongful death claims, remain viable.
The NTP defendants contend that the complaint must be dismissed as asserted against them on the grounds that they are not subject to long arm jurisdiction, plaintiffs and the NTP defendants are not in an attorney-client relationship sufficient to sustain a cause of action for legal malpractice, the NTP defendants referred the matter with due care, and plaintiffs have not sustained actual and ascertainable damages.
In support of the motion, Frank Tobias, Esq. submits an affidavit dated September 8, 2017. Mr. Tobias affirms that NTP was a law firm duly formed under the laws of New Jersey with a principal place of business located in Perth Amboy, New Jersey. NTP did not have any other offices. NTP's practice consisted mainly of New Jersey personal injury and workers' compensation matters. While he was once licensed in New York, he never practiced in New York and did not use his New York license while working at NTP. NTP never handled any New York matter. NTP never solicited any New York business. NTP did not derive substantial business revenue from New York. NTP never owned any real property in New York and did not maintain any bank accounts in New York. The only retainer he can locate involving the underlying accident is signed by Orlando Gonzalez who lists a New Jersey address on the retainer. NTP was not involved in the prosecution of the complaint in the New York matter. NTP did not have any involvement in the strategic decisions made in the underlying matter.
Richard Panitch, Esq. also submits an affidavit dated September 11, 2017. Mr. Panitch affirms that he was hired by NTP in January 2012. He ceased employment with NTP in December 2014. He has never been licensed to practice in New York. He does not engage in any persistent or significant business activities in New York. He does not solicit New York business. He does not derive business revenue from New York. He does not own any real property in New York. He does not maintain any bank accounts in New York. He had no personal financial interest in the referral of the matter. He was not involved in the litigation of the underlying matter. He was not involved in any strategy of what claims to bring or not bring in the underlying action.
“In deciding whether an action may be maintained in New York against a non-domiciliary defendant, the court must first determine whether jurisdiction exists under New York's long-arm statute (see CPLR 302) based upon the defendant's contacts with this state; and, if it does, the court then determines ‘whether the exercise of jurisdiction comports with due process’ ” (Darrow v. Hetronic Deutschland, 119 AD3d 1142, 1143 [3d Dept. 2014], quoting LaMarca v. Pak–Mor Mfg. Co., 95 NY2d 210, 214  ). Plaintiffs contend that jurisdiction exists over the NTP defendants pursuant to CPLR 302(a)(1) and 302(a)(3)(ii).
Pursuant to CPLR 302(a)(1), a non-domiciliary entity may be sued in New York if it “transacts any business within the state or contracts anywhere to supply goods or services in the state”. Jurisdiction is proper “even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” (Fischbarg v. Doucet, 9 NY3d 375  ).
Plaintiffs contend that the NTP defendants transacted business in New York by seeking out the CPR defendants as co-counsel and purposefully pursing a lawsuit and monetary recover from a New York entity, U.S. Tires. However, the NTP defendants were retained by Orlando Gonzalez, a New Jersey resident, in connection with a motor vehicle accident that occurred in Virginia. The NTP defendants then referred the matter to a Pennsylvania and New Jersey based law firm in compliance with New Jersey rules concerning the taking of referral fees. The letter from Joel Rosen at CPR makes no reference to bringing the case in New York. Moreover, both Mr. Tobias and Mr. Panitch both affirm that they were not involved in the litigation of the underlying action. Plaintiffs failed to show that the NTP defendants actively projected themselves into New York to engage in a sustained and substantial transaction of business within New York, thereby purposefully availing themselves of the privilege of conducting activities in New York so as to subject them to long-arm jurisdiction pursuant to CPLR 302(a)(1) (see Paterno v. Laser Spine Inst., 24 NY3d 370 ; Bloomgarden v. Lanza, 143 AD3d 850 [2d Dept. 2016] ).
Pursuant to CPLR 302(a)(3)(ii), a non-domiciliary entity may be sued in New York if it “commits a tortious act without the state causing injury to person or property within the state” if it “expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce”.
Here, Mr. Tobias and Mr. Panitch's affirm that the NTP defendants did not receive any revenue from New York and did not have any sufficient contacts with New York. In opposition, plaintiffs failed to demonstrate that the NTP defendants regularly did or solicited business, or engaged in any persistent course of conduct, or derived substantial revenue from interstate or international commerce.
As the Court lacks personal jurisdiction over the NTP defendants, the remainder of the NTP defendants' motion to dismiss will not be decided herein.
Accordingly, and based on the above reasons, it is hereby
ORDERED, that defendants NASH, TOBIAS & PANITCH, LLC, FRANK TOBIAS, and RICHARD PANITCH's motion to dismiss is granted pursuant to CPLR 3211(a)(8), and the complaint is dismissed in its entirety as against defendants NASH, TOBIAS & PANITCH, LLC, FRANK TOBIAS, and RICHARD PANITCH.
Robert J. McDonald, J.
Response sent, thank you
Docket No: 6552/2017
Decided: February 28, 2018
Court: Supreme Court, Queens County, New York.
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