Justice Elizabeth H. Emerson


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Plaintiff, a New York corporation in Hauppauge, owned a 50 percent interest in Zingarr Sales, a New Jersey LLC authorized to do business in NY. Fiorella, a California resident, was contacted by Gottschalk, comanager of Zingarr, and agreed to provide consulting services to it. He sent Gottschalk invoices for services performed for Zingarr which she approved and submitted to plaintiff demanding that Zingarr pay the invoice—which was not paid. Plaintiff commenced this derivative suit on its own and Zingarr’s behalf alleging Gottschalk, Fiorell, and other defendants engaged in a scheme to defraud Zingarr by submitting fraudulent and inflated bills for services rendered to Zingarr. Fiorella moved for dismissal, alleging a lack of personal jurisdiction. The court agreed finding plaintiff failed to establish the court had jurisdiction over Fiorella, noting while he had an ongoing relationship with Zingarr and Gottschalk, Fiorella never entered NY to either negotiate the consulting agreement or complete its performance as his only contact with NY were calls and e-mails. Thus, Fiorella did not project himself into ongoing NY commerce, purposefully availing himself of the business privileges and protections of the state. Fiorella was granted dismissal of the complaint asserted against him.