HARDWARE v. ARDOWORK CORPORATION

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Ralph Cole HARDWARE, etc., Plaintiff, v. ARDOWORK CORPORATION, et al., Defendants.

Ardowork Corporation, et al., Third–Party Plaintiffs–Respondents, v. Lloyd Hardware, Third–Party Defendant–Appellant.

Decided: May 20, 2014

GONZALEZ, P.J., FRIEDMAN, MOSKOWITZ, FREEDMAN, KAPNICK, JJ. Segal McCambridge Singer & Mahoney, Ltd, New York (David S. Kostus of counsel), for appellant. Havkins Rosenfeld Ritzert & Varriale, LLP, White Plains (Carmen A. Nicolaou of counsel), for respondents.

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered March 28, 2013, which denied third-party defendant's motion to dismiss for lack of jurisdiction, and granted defendants/third-party plaintiffs' cross motion to deem personal service sufficient and proper, unanimously affirmed, without costs.

Third-party plaintiffs have made a prima facie showing that third-party defendant, the father of the infant plaintiff, was “doing business” in New York, through a voluntary, continuous and self-benefitting course of conduct, sufficient to render him subject to the general jurisdiction of this State's courts (CPLR 301; see e.g. ABKCO Indus. v. Lennon, 52 A.D.2d 435, 440 [1st Dept 1976]; see also Bryant v. Finnish Natl. Airline, 15 N.Y.2d 426, 428 [1965]; Lancaster v. Colonial Motor Frgt. Line, 177 A.D.2d 152, 156 [1st Dept 1992] ). The evidence included, among other things, Mr. Hardware's testimony concerning his long-term employment as a scientist at an “undisclosed location” in New York, and documentary evidence presented by third-party plaintiffs showing that he also had a long-term business relationship with a New York company, for which he acted as designated agent, but which he failed to disclose. Under the circumstances of this case, the court properly discredited Mr. Hardware's self-serving affidavit, submitted in opposition to third-party plaintiffs' cross motion, which was tailored to avoid the consequences of his earlier, inconsistent deposition testimony and representations concerning his continued employment in New York (see Phillips v. Bronx Lebanon Hosp., 268 A.D.2d 318, 320 [1st Dept 2000] ).

Personal jurisdiction over Mr. Hardware may not, however, be based on CPLR 302(a)(3) because, although he engaged in a persistent course of conduct within the State, the situs of the injury alleged in the third-party complaint is Connecticut, where the infant plaintiff was allegedly exposed to lead-based paint at a property owned by Mr. Hardware, regardless of whether the child resided in New York at the time (see Magwitch, L.L.C. v. Pusser's Inc., 84 AD3d 529, 532 [1st Dept 2011], lv denied 18 NY3d 803 [2012] ).

As Mr. Hardware was subject to personal jurisdiction pursuant to CLPR 301, personal service upon him in Connecticut was proper pursuant to CPLR 313.