DESAI v. STERLING FIBERS INC

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Supreme Court, Appellate Division, Second Department, New York.

Neeta DESAI, etc., Respondent, v. STERLING FIBERS, INC., Appellant.

Decided: November 26, 2001

FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, LEO F. McGINITY and STEPHEN G. CRANE, JJ. John O'Shea, Forest Hills, N.Y. (Warren S. Hecht of counsel), for appellant. Marschhausen & Fitzpatrick, P.C., Garden City, N.Y. (Kevin P. Fitzpatrick of counsel), for respondent.

In an action commenced by motion pursuant to CPLR 3213 for summary judgment in lieu of complaint to enforce a money judgment obtained in the State of Wisconsin upon the defendant's default in appearing or answering, the defendant appeals from an order of the Supreme Court, Nassau County (Davis, J.), dated January 18, 2001, which granted the motion.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the action is dismissed.

The plaintiff, a resident of Wisconsin, contracted with the defendant, a New York corporation, to purchase paper for shipment to India.   Alleging that the product was nonconforming, the plaintiff commenced a breach of contract action against the defendant in Wisconsin and served the defendant with process in New York. She obtained a judgment entered upon the defendant's default in appearing or answering, and then commenced this action pursuant to CPLR 3213 for summary judgment in lieu of complaint based on the Wisconsin judgment.   The Supreme Court granted the plaintiff's motion.   We reverse.

The Supreme Court's inquiry in this case was limited to determining whether the Wisconsin court had jurisdiction over the defendant (see, Steinberg v. Metro Entertainment Corp., 145 A.D.2d 333, 534 N.Y.S.2d 995;  Augusta Lbr. & Supply v. Sabbeth Corp., 101 A.D.2d 846, 475 N.Y.S.2d 878).   The Supreme Court erred in concluding that Wisconsin had jurisdiction over the defendant pursuant to Wis St § 801.05(1)(d), which provides that a court has jurisdiction over a person “[i]n any action whether arising within or without this state, against a defendant who when the action is commenced * * * [i]s engaged in substantial and not isolated activities within this state, whether such activities are wholly interstate, intrastate, or otherwise”.   Wis St § 801.05 (1)(d) is Wisconsin's version of a “doing business” statute (see, Capitol Indem. Corp. v. Certain Lloyds Underwriters, 487 F.Supp. 1115;  Nagel v. Crain Cutter Co., 50 Wis.2d 638, 184 N.W.2d 876;  Travelers Ins. Co. v. George McArthur & Sons, 25 Wis.2d 197, 130 N.W.2d 852).   The substantial activities contemplated by the statute are those which are “systematic and continuous” (see, PKWare, Inc. v. Meade, 79 F.Supp.2d 1007, 1012;  Harley-Davidson Motor Co. v. Motor Sport Inc., 960 F.Supp. 1386, 1389;  Travelers Ins. Co. v. George McArthur & Sons, supra, 130 N.W.2d, at 854).

Contrary to the conclusion reached by the Supreme Court, the defendant's contacts with Wisconsin were insufficient to satisfy the requirements of Wis St § 801.05(1)(d).   The plaintiff was the defendant's only customer in Wisconsin and the parties' business was conducted by facsimile or telephone.   They engaged in only three transactions over an approximately 14-month period.   The defendant's contacts with Wisconsin were isolated;  it was not engaged in systematic and continuous activities in that state when the plaintiff commenced her action there (see, Engineering Sales Co. Inc. v. Techni-Cast Corp., 444 F.Supp. 508;  Cram v. Medical College of Wisconsin, 927 F.Supp. 316;  Nagel v. Crain Cutter Co., supra).   Since the Wisconsin court did not have personal jurisdiction over the defendant, the plaintiff's motion for summary judgment in lieu of complaint based on that judgment was properly denied and the action dismissed.

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