Opinion
16985, 16986 Index No. 20513/16E Case Nos. 2022-01609, 2022-03812
12-29-2022
Giacomino BROCCO, et al., Plaintiffs–Appellants, v. EASTERN METAL RECYCLING TERMINAL LLC, et al., Defendants–Respondents, Sims Metal Management LTD., Defendants.
Romano & Associates, Garden City (Michael J. Romano of counsel), for appellants. Cerussi & Spring, P.C., White Plains (Richard D. Bentzen of counsel), for Eastern Metal Recycling Terminal LLC, respondent. Gordon Rees Scully Mansukhani, LLP, New York (Maxine Nicholas and James L. Messenger of the bar of the Commonwealth of Massachusetts and Brian J. Wall, of the bar of the Commomwealth of Massachusetts and the State of Rhode Island, admitted pro hac vice of counsel), for Port Authority of New York and New Jersey and Port of Newark Terminal, respondents.
Romano & Associates, Garden City (Michael J. Romano of counsel), for appellants.
Cerussi & Spring, P.C., White Plains (Richard D. Bentzen of counsel), for Eastern Metal Recycling Terminal LLC, respondent.
Gordon Rees Scully Mansukhani, LLP, New York (Maxine Nicholas and James L. Messenger of the bar of the Commonwealth of Massachusetts and Brian J. Wall, of the bar of the Commomwealth of Massachusetts and the State of Rhode Island, admitted pro hac vice of counsel), for Port Authority of New York and New Jersey and Port of Newark Terminal, respondents.
Kern, J.P., Kennedy, Scarpulla, Pitt–Burke, Higgitt, JJ.
Order, Supreme Court, Bronx County (Ruben Franco, J.), entered on or about October 19, 2021, which, to the extent appealed from, granted defendant Eastern Metal Recycling Terminal LLC's (EMR) motion to dismiss the complaint as against it for lack of personal jurisdiction and granted defendants Port Authority of New York and New Jersey and Port of Newark Terminal's (together, Port Authority) motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Plaintiff Giacomino Brocco sustained injuries while delivering scrap metal for his employer, nonparty Deer Park Recycling, from its New York facility to a New Jersey facility operated by EMR. The EMR facility was located on property owned by Port Authority.
Supreme Court correctly dismissed the complaint against EMR for lack of personal jurisdiction (see CPLR 3211[a][8] ). Initially, plaintiffs failed to demonstrate general jurisdiction over EMR. To be subject to general jurisdiction under CPLR 301, a defendant corporation must either be incorporated in New York or have its principal place of business in New York (see CPLR 301 ; Daimler AG v. Bauman, 571 U.S. 117, 137–139, 134 S.Ct. 746, 187 L.Ed.2d 624 [2014] ; see also BNSF Railway Co. v. Tyrrell, 581 U.S. 402, 137 S. Ct. 1549, 1558, 198 L.Ed.2d 36 [2017] ). Here, it is undisputed that EMR is a Delaware Corporation with its principal place of business in Camden, New Jersey.
Plaintiffs also failed to demonstrate specific jurisdiction over EMR (see CPLR 302[a][1] ). In order to determine whether specific jurisdiction exists under CPLR 302(a)(1), a court must decide "(1) whether the defendant ‘transacts any business’ in New York and, if so, (2) whether th[e] cause of action ‘aris[es] from’ such a business transaction" ( Licci v. Lebanese Canadian Bank, 673 F.3d 50, 60 [2d Cir. 2012], quoting Best Van Lines, Inc. v. Walker, 490 F.3d 239, 246 [2d Cir. 2007] ). Here, EMR did not transact any business in New York. EMR was contacted by Deer Park to buy scrap metal, EMR's purchases of the scrap metal occurred in New Jersey, and the payments from EMR to Deer Park were made through an electronic clearing house (see Fischbarg v. Doucet, 9 N.Y.3d 375, 380, 849 N.Y.S.2d 501, 880 N.E.2d 22 [2007] ; L.F. Rothschild, Unterberg, Towbin v. McTamney, 89 A.D.2d 540, 540–541, 452 N.Y.S.2d 630 [1st Dept. 1982], affd 59 N.Y.2d 651, 463 N.Y.S.2d 197, 449 N.E.2d 1275 [1983] ).
The motion court also correctly granted Port Authority summary judgment dismissing the complaint against it. Port Authority made a prima facie showing that it was an out-of-possession landlord by submitting the lease so stating, and plaintiffs failed to raise a triable issue of fact. While the permit from Port Authority conveying the property "as is" contained a limited right of re-entry, plaintiff's accident is alleged to have been caused by transient conditions such as the accumulation of debris, snow, and ice, and plaintiffs failed to point to any evidence that a significant structural or design defect was implicated (see Kittay v. Moskowitz, 95 A.D.3d 451, 452, 944 N.Y.S.2d 497 [1st Dept. 2012], lv denied 20 N.Y.3d 859, 2013 WL 518556 [2013] ; Babich v. R.G.T. Rest. Corp., 75 A.D.3d 439, 440, 906 N.Y.S.2d 528 [1st Dept. 2010] ). Plaintiffs’ argument that Port Authority retained sufficient control over the premises such that it was not an out-of-possession landlord is unpersuasive (see Kopetic v. Port Auth. of N.Y. & N.J., 176 A.D.3d 530, 530, 110 N.Y.S.3d 664 [1st Dept. 2019] ).
We have considered plaintiffs’ remaining contentions and find them unavailing.