Opinion
Index No. CV-003157-21/NY
10-26-2021
Douglas P. CATALANO, Plaintiff v. L.H. PELICAN PROPERTIES LLC and Ronald Lanio, Defendants
Plaintiff's Counsel: Douglas P. Catalano, Esq. (plaintiff appearing pro se), Clifton, Budd, & DeMaria LLP, 350 5th Avenue, Suite 6110, New York, NY 10018 Defendants’ Counsel: Gallo Vitucci Klar LLP, 100 Crossways Park West, Suite 305, Woodbury, NY 11797
Plaintiff's Counsel: Douglas P. Catalano, Esq. (plaintiff appearing pro se), Clifton, Budd, & DeMaria LLP, 350 5th Avenue, Suite 6110, New York, NY 10018
Defendants’ Counsel: Gallo Vitucci Klar LLP, 100 Crossways Park West, Suite 305, Woodbury, NY 11797
Judy H. Kim, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Notice of Motion and
Affidavits /Affirmations annexed 1
Answering Affidavits/ Affirmations 2
Reply Affidavits/ Affirmations 3
Upon the foregoing cited papers, defendants’ motion to dismiss this action is denied without prejudice for the reasons set forth below:
On February 23, 2021, plaintiff, an attorney proceeding pro se, commenced this action by summons with notice alleging, in relevant part, that:
The nature of this action is fraudulent inducement to cause an agent of plaintiff to cause repairs to plaintiff's residence, and/or breach of contract, for failing to reimburse plaintiff for the cost defendants caused plaintiff to incur. The relief sought is $5,000.00 for compensatory and punitive damages for fraud, together with attorney's fees, costs and interest Plaintiff designates New York as the place of trial. The basis of this designation is Plaintiff's residence stemming from the breach of contract.
In his affirmation in opposition to the instant motion, plaintiff attests that he owns an apartment in 1342 Pelican Watch Villas, Seabrook Island, South Carolina and that the apartment was damaged by water leaking from the apartment above owned by defendant Ronald Lanio (Catalano Affirm., ¶6). Plaintiff further alleges that Lanio assured plaintiff's property manager, Ann Brasco, that he would reimburse the cost of repairs to fix this damage, that plaintiff paid for repairs based on this assurance, and that Lanio has failed to reimburse these costs (Catalano Affirm., ¶¶7-11).
In response to the summons with notice, defendants — a South Carolina resident and Georgia corporation doing business in South Carolina (Lanio Aff., ¶¶4, 6) — move, pursuant to CPLR § 3211(a)(8), to dismiss this action based upon a lack of jurisdiction under CPLR § 301 or § 302. In opposition, plaintiff argues that the Court has long-arm jurisdiction over defendants pursuant to CPLR § 302(a)(1) and § 302(a)(3)(ii) based on Lanio's assurance to Brasco that he would reimburse the cost of repairs (Catalano Affirm., ¶8).
DISCUSSION
The CPLR contemplates that, when an action is commenced in New York by service of summons with notice, the defendant will, in the normal course, respond by filing a notice of appearance (which may include a demand for a complaint), after which plaintiff will file and serve its complaint ( CPLR § 3012[b] ). In this case, however, defendants have eschewed this process and instead brought the instant motion to dismiss.
While a motion to dismiss based upon grounds unrelated to the substance of a complaint may be brought prior to the service of that complaint (See e.g. , Bojanovich v Woitach , 39 Misc 3d 1237(A) [Sup Ct, NY County 2013] [dismissal pursuant to CPLR § 3211(a)(3) ]; Moncion v Geek Shop Inc. , 66 Misc 3d 1208(A) [Sup Ct, Kings County 2020] [dismissal pursuant to CPLR § 3211(a)(8) based upon inadequate service of the summons with notice]), a motion to dismiss which requires reference to the substance of the complaint cannot be addressed where a complaint has not been filed (See e.g. , Petrova v Inv'rs Capital, 24 Misc 3d 977, 979 [Sup Ct, Kings County 2009] [motion to dismiss for failure to state a cause of action under CPLR § 3211(a)(7) ]; Moskowitz v Moskowitz , 2014 NY Slip Op. 32771[U] [Sup Ct, Kings County 2014] [ CPLR § 3211(a)(5) motion based upon res judicata and collateral estoppel]). This bar extends to the instant motion. As the Appellate Division, First Department has held, "[w]ithout a complaint it is impossible to know whether plaintiff has a valid basis of jurisdiction under the ‘long arm’ statute" ( Fraley v Desilu Productions, Inc., 23 AD2d 79, 81-82 [1st Dept 1965] [internal citations omitted]).
Fraley presents an instructive comparison. That action was commenced by summons with notice, with an accompanying attorney affirmation stating that defendant was a non-domiciliary that was or had been "continuously transacting business in [New York] with Desilu Sales Corp., at 35 West 55th Street, New York, New York, and other New York business concerns" ( Fraley v Desilu Productions, Inc. , 23 AD2d 79, 80 [1st Dept 1965] ). Defendants responded by moving to dismiss the proceeding for lack of jurisdiction, submitting an affidavit stating "that the only relationship between the plaintiffs and the defendant is a 1959 written agreement [which] was not entered into in this jurisdiction," and adding that "Desilu Sales, Inc.—mentioned in the affirmation served with the summons and notice—is an entirely separate corporation that acquired by contract—negotiated and executed in California—rights to distribute motion pictures produced by the defendant" ( Fraley v Desilu Productions, Inc. , 23 AD2d 79, 80-81 [1st Dept 1965] ). In response, plaintiffs "submitted affidavits in which they claimed that the contract was executed by them in New York and that the defendant is doing business in New York through Desilu Sales, Inc." ( Fraley v Desilu Productions, Inc. , 23 AD2d 79, 81 [1st Dept 1965] ). After reviewing the parties’ submissions, Special Term granted defendant's motion and dismissed the proceeding.
On appeal, however, the First Department concluded that "the action was not procedurally ripe for the determination sought by the defendant and made by Special Term" because the papers submitted did "not indicate with any degree of precision the nature of plaintiffs’ cause of action Nor [were] there any averments in the affidavits submitted on behalf of plaintiffs as to the nature of the plaintiffs’ cause or causes of action [or] that such cause or causes of action arose from the transaction of any business by defendant within this State" ( Fraley v Desilu Productions, Inc. , 23 AD2d 79, 81-82 [1st Dept 1965] ).
While the parties’ submissions here present a clearer picture of plaintiff's proposed causes of action — and plaintiff's proposed grounds for long-arm jurisdiction — than in Fraley , there are also, as in that case, potentially dispositive facts still unknown, including what role the corporate defendant L.H. Pelican Properties LLC plays, where plaintiff's property manager, Ann Brasco, resides, and whether defendant was aware of plaintiff's New York residence at the time he allegedly assured Brasco that he would reimburse repairs to plaintiff's apartment.
Even were this not the case, "the court is constrained by the authority of Fraley to defer the jurisdictional decision until after service of a complaint setting forth the nature of the action and the basis for jurisdiction" ( Meng v Allen , 31 Misc 3d 1211(A) [Sup Ct, NY County 2011] ; but see Waggaman v Arauzo, 117 AD3d 724, 725-26 [2d Dept 2014] [court properly dismissed personal injury action commenced by New York resident by summons with notice against defendant Texas physician alleging improper prescription of drugs to plaintiff's mother, a Florida resident, in Texas based on lack of long-arm jurisdiction and lack of capacity and standing to sue]).
Accordingly, it is
ORDERED that defendants’ motion to dismiss is denied without prejudice to its renewal upon the service of a complaint pursuant to a demand made under CPLR § 3012(b). Defendants’ time to serve a demand for a complaint is extended to thirty days from the date of this decision and order.
This constitutes the Decision and Order of the Court