When are limited NY contacts enough to allow an attorney from New Jersey to be sued in New York? The question is easy to answer in the abstract. That answer is "to the extent permitted by due process." In the actual or practical world, the answer is much more difficult. PHILIP SELDON, Plaintiff, – against – REBENACK, ARONOW & MASCOLO, LLP and JAY MASCOLO, Defendants. Index No. 101042/11;101042/11 ;SUPREME COURT OF NEW YORK, NEW YORK COUNTY;2011 NY Slip Op 32364; 2011 N.Y. Misc. LEXIS 4328; illustrates the manner in which Courts decide this question.
"In November 2006, a judgment was entered against Seldon in Supreme Court, New York County, and in favor of Andrew J. Spinnell, in the amount of $515,013.00. Defendants did not represent plaintiff in the New York action. In an effort to collect the judgment, Spinnell docketed his New York judgment in Superior Court of New Jersey. As a result, a bank affiliated with two of Seldon’s companies, restricted those companies from accessing funds.
Thereafter, Seldon was referred by the Middlesex County Bar Association to defendants Rebenack, Aronow & Mascolo, LLP ("Rebenack"), a New Jersey law firm. Plaintiff signed a retainer agreement with Rebenack on June 27, 2007. Rebenack commenced an action ("the bank action"), and filed an order to show cause in Superior Court, seeking to lift the restrictions. [**2] The Order to Show Cause was denied and the court permitted Spinnell to withdraw certain funds in satisfaction of his [*3] judgment. In October 2007 Spinnell filed a separate action, also in Superior Court, alleging that plaintiff, individually, and through his corporations, had fraudulently conveyed funds. In May 2009 a Superior Court judge decided that Spinnell’s claims were barred because he failed to assert them in the bank action. In July 2010, the Superior Court Appellate Division reversed the lower court and remanded the action to trial court to determine "whether there were any issues of material fact."
In December 2010 the action was tried and the judge found that Seldon fraudulently conveyed his funds and was directed to pay Spinnell the monies owed on the New York judgment. At the trial Rebenack represented the corporations and Seldon appeared pro se. Thereafter, Seldon commenced the instant malpractice action by service of a Summons with Notice on January 26, 2011, alleging that Rebenack failed to properly prepare him for trial, and failed to properly represent him.
Rebenack, in support of its motion, submits: the complaint; a copy of the Appellate Division decision; a copy of [**3] the retainer agreement; and a copy of a Superior Court "Order and Judgment." Rebenack argues that it is a New Jersey firm that does not advertise or conduct business in New York. The underlying matter, Rebenack asserts, arose out of New Jersey litigation, and all meetings, and preparation for trial were done in New Jersey.
Rebenack admits that it "shared a single office" in New York City with a New York attorney from 2009 until January 2011, but, through the affidavit of defendant Jay Mascolo, claims that it had no staff or telephone listing for that office, and that the firm did not hold a New York bank account. Rebenack further concedes that the New York address was listed on its letterhead during that period, but asserts that the office was only used three times to hold EBTs in unrelated insurance matters, and that the office was now closed due to non-use.
Although a plaintiff bears the ultimate burden of proof on the issue of personal jurisdiction, in opposing a motion to dismiss pursuant to CPLR 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiffs [**6] need not make a prima facie showing of jurisdiction, but instead must only set forth "a sufficient start," and "should have further opportunity to prove other contacts and activities of the defendant in New York as might confer jurisdiction under the long arm statute, thus enabling them to oppose the motion to dismiss."(Peterson v. Spartan Industries, Inc., 33 NY2d 463[1974]).
Rebenack maintained an office in New York until January 2011, in or around the time the summons and notice would have been served. Additionally, the New York address was listed on Rebenack’s letterhead during the period from 2009 through January 2011. Thus, there is sufficient basis to deny Rebenack’s motion and permit discovery on the issue of whether Rebenack was "doing business" in New York. (see; CPLR 3211[d]).
Wherefore it is hereby
ORDERED that defendant’s motion is denied without prejudice to a new motion at the close of discovery on the jurisdictional issue; "