Some important facts are proffered late in the case description, but Aybar v Cohen, Placitella & Roth, PC 2018 NY Slip Op 50278(U) decided on February 28, 2018 Supreme Court, Queens County, McDonald, J. is a question of jurisdiction and choice-of-law as often comes up in auto accidents in far-off states. This question raises the issue of out-of-state litigants who bring a case into New York concerning an auto accident in Virginia with New Jersey residents, some connection with Pennsylvania and then into New York.
“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.”
“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.”