A New York legal malpractice case on top of a legal malpractice case on top of bad representation in a criminal case in Florida and California for a capital murder prosecution in Federal Court fairly shouts of desperation. The fact that it was brought in New York rather than in California or Florida suggests the driving force is a grieving family member. It all ends in dismissal.
Bloomgarden v Lanza 2016 NY Slip Op 06798 Decided on October 19, 2016 Appellate Division, Second Department is a primer on personal jurisdiction based upon the long arm statute.
” The plaintiffs commenced this action seeking damages for, inter alia, legal malpractice against the defendants, attorneys in California, who represented the plaintiffs in an action against certain Florida attorneys in Florida. The defendants moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint in this action for lack of personal jurisdiction, and the Supreme Court granted that branch of the motion. The plaintiffs appeal.
“Although the ultimate burden of proof regarding personal jurisdiction rests with the plaintiff, to defeat a CPLR 3211 (a) (8) motion to dismiss a complaint, the plaintiff need only make a prima facie showing that the defendant is subject to the personal jurisdiction of the court” (Whitecraft v Runyon, 123 AD3d 811, 812, citing Weitz v Weitz, 85 AD3d 1153 and Cornely v Dynamic HVAC Supply, LLC, 44 AD3d 986). Here, accepting as true the allegations set forth in the complaint and in the opposition to the motion, and according the plaintiffs the benefit of every favorable inference (see Whitecraft v Runyon, 123 AD3d at 812), we find that the plaintiffs failed to make a prima facie showing that the defendants were subject to personal jurisdiction in New York.”
“Here, the plaintiffs failed to show that the 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, 379). The defendants communicated from California with the plaintiffs in New York via mail, telephone, and email because the plaintiffs were New York domiciliaries, not because the defendants were actively participating in transactions in New York, and the communications with the plaintiffs in New York all concerned the services that the defendants were performing in Florida (see Liberatore v Calvino,293 AD2d 217, 220; Libra Global Tech. Serv. [UK] v Telemedia Intl., 279 AD2d 326; J.E.T. Adv. Assoc. v Lawn King, 84 AD2d 744, 745).
Nor did the plaintiffs establish that the defendants caused injury within New York that would subject them to long-arm jurisdiction pursuant to CPLR 302(a)(3). The residence of an injured party in New York is not sufficient to satisfy the clear statutory requirement of an “injury . . . within the state” (CPLR 302[a][3]; see McGowan v Smith, 52 NY2d 268, 274, 275). “The situs of the injury is the location of the original event which caused the injury, not the location where the resultant damages are subsequently felt by the plaintiff” (Hermann v Sharon Hosp., 135 AD2d 682, 683). Here, the alleged legal malpractice occurred in Florida.”