The following papers were read on this motion: Documents Numbered Notice of Motion, Affirmations, Exhibits Annexed 38 Memorandum of Law in Support 39 Affirmation in Opposition 43 Affidavit in Opposition 48 Memorandum in Opposition 49 Reply Affirmation 50 Memorandum of Law in Support 53 Defendant moves by notice of motion for an order pursuant to CPLR §3211(a)(1), (7) and (8) dismissing the summons and complaint in this action. This action alleges abuse of process by the defendant Patricia A. Cooper, Esq. in connection with a contempt application brought in a prior proceeding. The following facts are taken from the parties’ submissions, and are undisputed, except where otherwise noted. Defendant is an attorney practicing in the State of Colorado. She represented the plaintiff’s former daughter-in-law, Dr. Elizabeth Diana Crespi (“Dr. Crespi”) in a contested matrimonial action against plaintiff’s son, Dr. Marcjonathan Serota (“Dr. Serota”), which was commenced and prosecuted in Colorado (the “Colorado Action”). In connection with the Colorado Action, defendant sought information regarding possible marital assets held jointly or in trust for Dr. Serota by his parents (the plaintiff herein and his wife). According to defendant, based upon Dr. Serota’s non-disclosure of such information, defendant issued non-party subpoenas in July 2018 to plaintiff and plaintiff’s wife for the production of documents regarding family trusts and other records relevant to the Colorado Action. Plaintiff and his wife, both residents of Nassau County, New York, rejected and returned the subpoenas, citing several defects under New York and Colorado law. Thereafter, on November 20, 2018, an enforcement proceeding was commenced on behalf of Dr. Crespi against plaintiff and his wife in Nassau County, New York, seeking among other things, to hold plaintiff and his wife in contempt of court. The New York law firm of Schlissel Ostrow Karabatos PLLC (“New York Counsel”) represented Dr. Crespi in the proceeding entitled In the Matter of the Application of Elizabeth Diana Crespi to Enforce a Subpoena to Produce v. Stuart Serota and Lila Serota, under Nassau County Index No. 615656/18 (the “Enforcement Proceeding”). By Short Form Order dated June 19, 2019, the Hon. Jack Libert, J.S.C. denied Dr. Crespi’s application for an order of contempt, quashed the subpoenas and dismissed the petition on the basis that the subpoenas violated Colorado’s rules of civil procedure. The instant action was commenced by electronic filing of the summons and complaint on June 22, 2019.1 The complaint alleges a single cause of action for abuse of process, based upon (i) the issuance and service of the first non-party Colorado attorney subpoenas dated July 3, 2018 (which were ultimately withdrawn); (ii) the issuance and service of the second non-party Colorado attorney subpoenas dated July 31, 2018; and (iii) the use of the foregoing non-party subpoenas to obtain an ex parte Order to Show Cause on December 4, 2018 seeking to compel compliance and/or to punish plaintiff for contempt. Plaintiff alleges that the attorney subpoenas were defective on several grounds, that defendant knew they were defective, and that defendant continued to prosecute the contempt proceeding even after being advised of the defective nature of the subpoenas. Plaintiff alleges further that such litigation conduct constituted knowing abuse of process from which malice can be inferred. Defendant now seeks to dismiss the action on the grounds that: (1) the Court lacks personal jurisdiction over defendant in New York; and, in any event, (2) plaintiff has no viable cause of action for abuse of process as a matter of law. Plaintiff opposes both grounds, and upon the general assertion that further discovery is required to ascertain facts essential to the opposition. See CPLR §3211(d).2 The Court begins with the threshold issue of personal jurisdiction. In support of her motion, defendant submits, among other things, her Affidavit, sworn to on November 5, 2019 (the “Cooper Affidavit”) (NYSCEF Doc. 41). In the Cooper Affidavit, defendant asserts that she has resided in Colorado, and has been admitted to practice law in Colorado, since 1999. She was previously admitted to practice law in New York, but resigned from the New York Bar on September 7, 2011. At all times relevant to this action, defendant was associated with the law firm of Lass Moses Ramp & Cooper, LLC, and has worked from the firm’s office in Colorado. She does not maintain an office in the State of New York. Neither defendant nor her firm solicits business in New York. Defendant avers that all of the services rendered on behalf of Dr. Crespi in the Colorado Action were performed in Colorado, including the preparation and execution of the non-party subpoenas. The subpoenas were served in New York by a New York process server. Defendant did not appear in New York in connection with the issuance of the subpoenas. In addition, defendant avers that Dr. Crespi retained New York Counsel to commence the Enforcement Proceeding. Defendant did not represent Dr. Crespi in the Enforcement Proceeding, and never appeared in New York in connection with that proceeding. She merely submitted an affirmation in support of Dr. Crespi’s application, as a non-party witness. Based upon the foregoing, defendant maintains that there is no statutory basis for the exercise of personal jurisdiction over defendant in New York, and that defendant lacks the minimum contacts with New York necessary to render the exercise of jurisdiction consistent with due process. In opposition, plaintiff argues that by issuing the subpoenas and causing them to be served upon plaintiff and his wife in New York, defendant purposely invoked, availed herself of, and submitted to, the jurisdiction of the Courts of the State of New York. Plaintiff also maintains that, contrary to defendant’s assertions in the Cooper Affidavit, defendant was not merely a witness, but rather, represented Dr. Crespi in the Enforcement Proceeding, with New York Counsel acting either as her agent, or as her local co-counsel. In plaintiff’s view, this constitutes another instance of defendant’s invocation of, and submission to, the jurisdiction of the New York Courts. Where the defense is timely asserted, a New York Court may not exercise personal jurisdiction over a non-domiciliary, unless two requirements are satisfied: (1) the action is permissible under the New York long-arm statute (CPLR §302[a]), and (2) the exercise of jurisdiction comports with due process. Williams v. Beemiller, Inc., 33 NY3d 523 (2019). On a motion to dismiss pursuant to CPLR §3211(a)(8), the plaintiff, as the party asserting jurisdiction, bears the ultimate burden to show that both of these requirements are satisfied. Wang v. LSUC, 137 AD3d 520 (1st Dept. 2016). To meet this burden, the plaintiff need only make a prima facie showing that the defendant is subject to the personal jurisdiction of the Court. Bloomgarden v. Lanza, 143 AD3d 850 (2d Dept. 2016). Three of the statutory predicates of long-arm jurisdiction are asserted by plaintiff herein;3 namely, that defendant’s conduct, as alleged, amounts to: (1) the transaction of business within the state or contracting to provide services within the state [CPLR §302(a)(1)]; (2) the commission of a tortious act within the state [CPLR §302(a)(2)]; or (3) the commission of a tortious act without the state causing injury to person or property within the state [CPLR §302(a)(3)]. Here, accepting as true the allegations set forth in the complaint and in opposition to the motion, and according the plaintiff the benefit of every favorable inference, the Court finds that plaintiff has failed to make a prima facie showing that the defendant is subject to personal jurisdiction in New York. See, generally, Whitcraft v. Runyon, 123 A.D.3d 811, 812 (2nd Dept. 2014). “Pursuant to CPLR 302(a)(1), a court may exercise personal jurisdiction over any non-domiciliary who in person or through an agent transacts any business within the state or contracts anywhere to supply goods or services in the state (CPLR 302[a][1]). Whether a defendant has transacted business within New York is determined under the totality of the circumstances, and rests on whether the defendant, by some act or acts, has purposefully availed itself of the privilege of conducting activities within New York.” Bloomgarden, 143 AD3d at 850 (internal citations and quotation marks omitted). See also Ehrenfeld v. Bin Mahfouz, 9 NY3d 501, 508, 509-511 (2007). Significantly, in E-Z Bowz, LLC v. Professional Product Research Co., Inc., 00CV8670, 2003 WL 22064259 (SDNY 2003), the court found out-of-state attorneys who had been admitted pro hac vice and prosecuted an action before the New York District Court had not transacted business or supplied services within the state as contemplated by CPLR 302(a)(1). E-Z Bows, 2003 WL 22064259, at *6-9 ["[S]uch representation by itself does not constitute the ‘transaction of business’ within the meaning of the statute.”]. Considering the totality of the circumstances, the Court finds that defendant has not purposely availed herself of the privilege of conducting services or activities in New York. Defendant’s sworn statements: (i) that she never performed any legal services in New York, or contracted with anyone else for the performance of legal services in New York; (ii) that she never personally appeared or filed papers in New York; and (iii) that the subpoenas and her affirmation in support of the Enforcement Proceeding were all prepared in Colorado; are uncontradicted. Moreover, the facts asserted in the Cooper Affidavit (NYSCEF Doc. 41) are supported by the submission of the Retainer Agreement between Dr. Crespi and New York Counsel (NYSCEF Doc. 51), as well as the NYSCEF Document List in the Enforcement Proceeding (NYSCEF Doc. 52), showing that all submissions were e-filed by New York Counsel. Plaintiff’s allegation that New York Counsel was acting as defendant’s agent is speculative and conclusory, particularly in the absence of evidentiary facts demonstrating, among other things, that defendant exercised any control over New York Counsel. See Coast to Coast Energy, Inc. v. Gasarch, 149 AD3d 485 (1st Dept. 2017); Polansky v. Gelrod, 20 AD3d 663 (3d Dept. 2005). The service of the subpoenas in New York was incidental to the prosecution of the Colorado Action, and does not establish that defendant purposely availed herself of the privileges and benefits of New York law. See 3H Enterprises, Inc. v. Dwyre, 182 F.Supp.2d 249, 256 (NDNY 2001); Ehrenfeld, 9 NY3d at 508, 509-511. Indeed, that the plaintiff was served in New York at all was occasioned solely by plaintiff’s residence here. A closer question is whether defendant can be said to have purposefully availed herself of the benefit of New York law by her support of the Enforcement Proceeding. The Court notes that, in her Attorney Affirmation in Support of Motion in the Enforcement Proceeding (NYSCEF Doc. 3), although defendant primarily serves as a fact witness regarding the facts and circumstances surrounding the issuance of the subpoenas and the relevance and necessity of the records sought therein, she also advises the Court with respect to applicable Colorado law. Does this, as plaintiff suggests, constitute providing legal services in the New York Enforcement Proceeding, or serving as co-counsel with New York Counsel? The Court concludes that it does not. The submission of an affirmation by defendant does not rise to the level of “actively project[ing] [herself] into New York to engage in a sustained and substantial transaction of business within New York.” Bloomgarden, 143 AD3d at 852. Such activity, if anything, was incidental to her representation of Dr. Crespi in Colorado. Cf., Gottlieb v. Merrigan, 170 AD3d 1316 (3d Dept. 2019). Rather, the Court finds that defendant’s participation in the Enforcement Proceeding is, at most, akin to serving as a consultant to New York Counsel. See Etra v. Matta, 61 NY2d 455 (1984); see also E-Z Bowz, 2003 WL 22064259, at *9 [consulting firm did not purposefully avail itself of the privilege of conducting activities within New York]. As such, the Court finds it too insubstantial to rise to the level of a “transaction of business” sufficient to warrant subjecting her to suit here. Etra, 61 NY2d 455 Plaintiff’s failure to make a prima facie showing that defendant purposefully availed herself of the privilege of conducting activities within New York, either personally or through an agent, defeats the assertion of personal jurisdiction over defendant pursuant to CPLR §302(a)(1). In addition, the failure to make a prima facie showing with respect to agency also defeats the assertion of personal jurisdiction pursuant to CPLR §302(a)(2). CPLR §302(a)(2) reaches only those tortious acts performed by a defendant who was physically present in New York when he or she performed the wrongful act. Bensusan Restaurant Corp. v. King, 126 F3d 25 (2d Cir. 1997), citing Feathers v. McLucas, 15 NY2d 443, 458,(1965); see also Twine v. Levy, 746 F.Supp. 1206 (EDNY 1990). Under the facts of this case, and in the absence of an agency relationship with New York Counsel, there is no basis to assert that defendant was physically present in New York at any time relevant to this motion. The Court thus turns to the last predicate of long-arm jurisdiction asserted by plaintiff; that is the commission of a tort outside of the State that causes injury within the State. See CPLR 302(a)(3). Under this section, “a nondomiciliary who commits a tortious act without the state causing injury within the state may be brought before a New York court to answer for his conduct if he has had sufficient economic contact with the State or an active interest in interstate or international commerce coupled with a reasonable expectation that the tortious conduct in question could have consequences within the State.” McGowan v. Smith, 52 NY2d 268 (1981). Specifically, to sustain jurisdiction under this section, a plaintiff must allege evidentiary facts demonstrating: (1) that the defendant committed a tortious act outside the State; (2) that the act caused injury to a person or property within the State; and (3) that the requirements of either subsection (i) or subsection (ii) have been met; that is, that the defendant regularly does or solicits business in New York, or that the defendant should have reasonably expected her actions to have consequences in New York and derives substantial revenue from interstate commerce. CPLR 302(a)(3); Stair v. Calhoun, 2009 WL 792189 (EDNY 2009); LaMarca v. Pak-Mor Mfg. Co., 95 NY2d 210 (2000). At bar, plaintiff urges that defendant’s wrongful issuance of the subpoenas and participation in the Enforcement Proceeding, even if performed out of state, caused injury to him in New York. In particular, plaintiff claims, he was threatened with incarceration and caused to expend time and money to defend against baseless legal process. The Court assumes, without deciding, that defendant’s issuance of subpoenas and her support of the Enforcement Proceeding were tortious acts committed by the defendant outside of New York. Further, contrary to the arguments of the defense, this Court believes that the alleged injury occurred, if at all, in New York. Under New York law, the situs of the injury is defined as the location of the original event which caused the injury. See Twine v. Levy, 746 F.Supp. 1202. It is distinguished, not only from the location where the plaintiff resides or where the resulting damages are felt, but also from the location of the initial tort itself. Stair v. Calhoun, 2009 WL 792189 *8. Thus, as alleged here, the original tort was defendant’s issuance of the subpoenas and her submission of an affirmation in support of the Enforcement Proceeding. These acts occurred in Colorado. The original events that allegedly caused injury were the service of the subpoenas in New York and the prosecution of the Enforcement Proceeding. These events occurred in New York. The fact that the resulting damages were also felt in New York, does not alter the analysis. In any event, however, the Court finds that plaintiff fails to establish, prima facie, the remaining required elements. Plaintiff fails to present facts tending to show that defendant regularly did or solicited business, or engaged in any persistent course of conduct, or derived substantial revenue from goods used or consumed or services rendered in this State. See CPLR §302 (a)(3)(i); Ingraham v. Carroll, 90 NY2d 592, 597-598 (1997); Shatara v. Ephraim, 137 AD3d 1248 (2d Dept. 2016). To the contrary, defendant avers that she does not maintain an office or practice law in New York, and that, in fact, she resigned from the New York Bar in September of 2011. Further, plaintiff presents no facts tending to show that defendant derives substantial revenue from interstate or international commerce. See CPLR §302(a)(3)(ii); Ingraham v. Carroll, 90 NY2d at 598-599; Shatara v. Ephraim, 137 AD3d at 1249. Although not conclusive, defendant’s exclusive practice of family law in the state of Colorado suggests otherwise. In view of this Court’s determination that New York’s long-arm statute does not confer jurisdiction over defendant in this case, the Court need not reach the question of whether the exercise of jurisdiction comports with federal due process. See LaMarca v. Pak-Mor Mfg. Co., 96 NY2d at 216. The Court also need not reach the merits of plaintiff’s claim. The Court finds further that plaintiff’s request for additional discovery affords no non-speculative ground for his belief that further discovery will yield evidence supportive of jurisdiction. See Turbel v. Societe Generale, 276 AD2d 446 (1st Dept 2000). The Court has considered the remaining contentions of the parties and finds that they do not require discussion or alter the determination herein. Based upon the foregoing, it is ORDERED, that defendant’s motion for an order dismissing the summons and complaint in this action is granted. This constitutes the decision and order of this court. All applications not specifically addressed herein are denied. Dated: March 2, 2020
