In Musial v Donohue, 225 AD3d 1164, 1164-65 [4th Dept 2024], the court dismissed a client’s legal malpractice action based on jurisdictional grounds since the defendants/attorneys were not in New York but in Texas. The court held:
Plaintiffs, who reside in New York, commenced this breach of contract and legal malpractice action against Texas attorney …, and his law firm, … PLLC (collectively, … defendants), as well as New York attorneys …, Esq., …, Esq., and …, Esq., and their law firm, … Law Offices (collectively, … defendants). Plaintiffs allege that defendants failed to provide them with adequate legal representation with respect to claims arising from a motor vehicle accident that occurred in Texas. In appeal No. 1, plaintiffs appeal from an order that granted the … defendants’ motion to dismiss the complaint against them for lack of personal jurisdiction. In appeal No. 2, plaintiffs appeal from an order that denied their motion seeking, inter alia, to strike the note of issue or obtain post-note of issue discovery.
With respect to appeal No. 1, we reject plaintiffs’ contention that the … defendants are subject to long-arm jurisdiction in New York. Under 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’ ” (People v. Frisco Mktg. of NY LLC, 93 A.D.3d 1352, 1353, 941 N.Y.S.2d 823 [4th Dept. 2012]). “Jurisdiction can attach on the basis of one transaction, even if the defendant never enters the state, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” (Glazer v. Socata, S.A.S., 170 A.D.3d 1685, 1686, 96 N.Y.S.3d 791 [4th Dept 2019], lv denied 33 N.Y.3d 911, 2019 WL 4200617 [2019], quoting Fischbarg v. Doucet, 9 N.Y.3d 375, 380, 849 N.Y.S.2d 501, 880 N.E.2d 22 [2007] [internal quotation marks omitted]). “Purposeful” activities are “those by which a defendant, through volitional acts, avails itself of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws” (id., quoting Fischbarg, 9 N.Y.3d at 380, 849 N.Y.S.2d 501, 880 N.E.2d 22 [internal quotation marks omitted]; see generally Ehrenfeld v. Bin Mahfouz, 9 N.Y.3d 501, 508, 851 N.Y.S.2d 381, 881 N.E.2d 830 [2007]). “As the party seeking to assert personal jurisdiction, the plaintiff bears the burden of proof on [that] issue” (Frisco Mktg. of NY LLC, 93 A.D.3d at 1353, 941 N.Y.S.2d 823 [internal quotation marks omitted]).
Here, plaintiffs failed to show that the … defendants purposefully availed 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), inasmuch as the … defendants “never entered New York, [were] solicited … to perform services outside of New York, … performed outside of New York such services as were performed, and [are] alleged [only] to have neglected to perform other services outside of New York” (Mayes v. Leipziger, 674 F.2d 178, 185 [2d Cir. 1982]; see Bloomgarden v. Lanza, 143 A.D.3d 850, 852, 40 N.Y.S.3d 142 [2d Dept. 2016]), and the documentary evidence belies the conclusory allegations of plaintiffs’ counsel that the … defendants actively solicited referrals in New York (cf. Fischbarg, 9 N.Y.3d at 377, 849 N.Y.S.2d 501, 880 N.E.2d 22; see generally Eberhardt v. G&J Contr., Inc., 188 A.D.3d 1653, 1654, 132 N.Y.S.3d 383 [4th Dept. 2020]; Peters v. Peters, 101 A.D.3d 403, 403-404, 955 N.Y.S.2d 315 [1st Dept. 2012]). Even accepting as true the allegations set forth in the complaint and in the opposition to the motion to dismiss, and according plaintiffs the benefit of every favorable inference (see Bloomgarden, 143 A.D.3d at 851, 40 N.Y.S.3d 142), we conclude that, although plaintiffs signed the … defendants’ retainer agreement in New York and were in New York while on a telephone conference call with defendant …, who was in Texas at the time, this occurred during the course of the … defendants’ performance of legal services in Texas and because plaintiffs were New York domiciliaries, not because the … defendants were purposefully engaging in any business activities in New York (see id. at 852, 40 N.Y.S.3d 142; cf. State of New York v. Vayu, Inc., 39 N.Y.3d 330, 332-335, 186 N.Y.S.3d 93, 206 N.E.3d 1236 [2023]).
Plaintiffs also failed to make a prima facie showing of long-arm jurisdiction over the … defendants pursuant to CPLR 302 (a) (3), inasmuch as plaintiffs’ alleged injuries did not occur within New York but, rather, in Texas, where the … defendants’ alleged legal malpractice occurred (see Bloomgarden, 143 A.D.3d at 852, 40 N.Y.S.3d 142; see generally Zeidan v. Scott’s Dev. Co., 173 A.D.3d 1639, 1640, 103 N.Y.S.3d 707 [4th Dept. 2019]).
Richard A. Klass, Esq.
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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.com with any questions.
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