Opinion
904159-20
01-29-2021
In the MATTER OF SCHOHARIE LIMOUSINE CRASH OF OCTOBER 6, 2018. Jill Perez, as Administratrix of the estate of Matthew Coons, Plaintiff, v. Shahed Hussain, Individually and d/b/a Prestige Limousine and Chauffeur Services, Hasy Limousine and Saratoga Luxury Limousine, Nauman A. Hussain, Malik Riaz Hussain and Mavis Discount Tire, Inc., Defendants. Kimberly Steenburg, as Administrator of the Estate of Richard Steenburg, Plaintiff, v. Shahed Hussain, Individually and d/b/a Prestige Limousine and Chauffeur Services, Hasy Limousine and Saratoga Luxury Limousine, Nauman A. Hussain, Malik Riaz Hussain and Mavis Discount Tire, Inc., Defendants. Janet Steenburg, as Administrator of the Estate of Axel Steenburg, Plaintiff, v. Shahed Hussain, Individually and d/b/a Prestige Limousine and Chauffeur Services, Hasy Limousine and Saratoga Luxury Limousine, Nauman A. Hussain, Malik Riaz Hussain and Mavis Discount Tire, Inc., Defendants. Edward J. Halse, as Administrator of the Estate of Amanda D. Halse, Plaintiff, v. Shahed Hussain a/k/a "Malik Shahid Hussain", a/k/a "Malik Shahid Shakir Hussain", a/k/a "Mike Hussain", a/k/a Malik Riaz Hussain", and a/k/a "Mike Begum", Individually and d/b/a Prestige Limousine and Chauffeur Services, d/b/a Hasy Limousine, and d/b/a Saratoga Luxury Limousine, Nauman A. Hussain, Malik Riaz Hussain, The Estate of Scott T. Lisinicchia, Mavis Tire Supply, LLC, Mavis Tire Holdings, LLC, and Mavis Tire Express Services Topco, L.P., Defendants. The Estate of James J. Schnurr, by Joan Schnurr, Administratrix, Plaintiff, v. Shahed Hussain d/b/a Prestige Limousine and Chauffeur Services, and d/b/a Hasy Limousine, and d/b/a Saratoga Luxury Limousine, Nauman Hussain, Malik Riaz Hussain, The Estate of Scott T. Lisinicchia, Mavis Discount Tire, Inc., The Apple Barrel Country Store, and John Does 1-10, Defendants. The Estate of Brian G. Hough, by Jaclyn Schnurr, Administratrix, and Jaclyn Schnurr, Individually, Plaintiffs, v. Shahed Hussain d/b/a Prestige Limousine and Chauffeur Services, and d/b/a Hasy Limousine, and d/b/a Saratoga Luxury Limousine, Nauman Hussain, Malik Riaz Hussain, The Estate of Scott T. Lisinicchia, Mavis Discount Tire, Inc., The Apple Barrel Country Store, and John Does 1-10, Defendants. Kevin C. Cushing and Cynthia Fitzgerald, as Co-Administrators of the Estate of Patrick K. Cushing, Deceased, Plaintiffs, v. Shahed Hussain d/b/a Prestige Limousine and Chauffer Services and/or Hazy Limousine and/or Saratoga Luxury Limousines; Nauman Hussain; Malik Riaz Hussain; Mavis Discount Tire Inc. ; Mavis Tire Supply, LLC; Mavis Tire Holdings, LLC; Mavis Tire New York, LLC; Mavis Tire Express Services Corp.; Mavis Tire Express Services TOPCO, L.P. ; and Does 1 through 10, Defendants. Michael Cavosie, Individually and as Administrator of the Estate of Rachael Cavosie, Deceased, Plaintiffs, v. Shahed Hussain d/b/a Prestige Limousine and Chauffer Services and/or Hazy Limousine and/or Saratoga Luxury Limousines; Nauman Hussain; Malik Riaz Hussain; Mavis Discount Tire Inc. ; Mavis Tire Supply, LLC; Mavis Tire Holdings, LLC; Mavis Tire New York, LLC; Mavis Tire Express Services Corp.; Mavis Tire Express Services TOPCO, L.P. ; and Does 1 through 10, Defendants. Elizabeth Muldoon, as Administratrix of the Estates of Adam G. Jackson and Abigail Jackson, Samuel J. Bursese, as Administrator of the Estate of Savannah Bursese, Linda King as Administratrix of the Estates of Allison King, Amy King Steenburg and Mary King Dyson, and Dawn Dyson as Administratrix of the Estate of Robert Dyson, Plaintiffs, v. Shahed Hussain, aka "Malik Shahid Hussain," a/k/a "Malik Shaid Shikir Hussain," a/k/a "Malik Hussain," a/k/a "Malik Riaz Hussain," a/k/a "Mike Hussain," a/k/a "Mike Begum," a/k/a "Shaeed Hussain," a/k/a "Shahid Malik," individually and d/b/a Prestige Limousine and Chauffeur Services, d/b/a Hasy Limousine, and d/b/a Saratoga Luxury Limousine, Nauman A. Hussain, Malik Riaz Hussain, and Mavis Discount Tire, Inc., Defendants.
Martin, Harding & Mazzotti, LLP, Thomas J. Mortati, Esq., and Cassandra Kazukenus, Esq., Attorneys for Plaintiffs, 1222 Troy-Schenectady Road, Niskayuna, New York 12309 Bracewell, LLP, Paul Shechtman, Esq., Attorneys for Malik Riaz Hussain, 1251 Avenue of the Americas, New York, New York 10020
Martin, Harding & Mazzotti, LLP, Thomas J. Mortati, Esq., and Cassandra Kazukenus, Esq., Attorneys for Plaintiffs, 1222 Troy-Schenectady Road, Niskayuna, New York 12309
Bracewell, LLP, Paul Shechtman, Esq., Attorneys for Malik Riaz Hussain, 1251 Avenue of the Americas, New York, New York 10020
Denise A. Hartman, J.
Defendant Malik Riaz Hussain moves to dismiss complaints and amended complaints against him in nine coordinated actions arising out of the limousine crash in Schoharie County on October 6, 2018, contending that he has insufficient connections to New York and the accident to support personal jurisdiction (see CPLR 3211 [a] [8] ). Liaison counsel has filed opposition to the motion on behalf of plaintiffs in all nine cases, arguing that the motion is premature and plaintiffs should be allowed limited jurisdictional discovery. The Court held oral argument on December 16, 2020.
These lawsuits are being coordinated in Albany County for the purposes of pretrial discovery and pretrial motions pursuant to an order of the Litigation Coordination Panel, dated March 19, 2020.
Because plaintiffs have made a "sufficient start" toward establishing a basis for personal jurisdiction, and because discovery is in its infancy with the facts necessary to establish personal jurisdiction largely, if not solely, in defendants’ control, the Court denies defendant Malik Riaz Hussain's motion at this time, without prejudice. The parties will be given the opportunity to conduct limited jurisdictional discovery, after which defendant Malik Riaz Hussain may renew his motion for dismissal if he decides it is appropriate to do so.
Background
On October 6, 2018, a tragic accident unfolded when a stretch limousine for hire — an altered 2001 Ford Excursion carrying 17 passengers — crashed at the bottom of a hill at the intersection of Routes 30 and 30A in Schoharie County, New York. All 17 passengers, the driver of the limousine, and two persons in the parking lot of the Apple Barrel Restaurant, located at the bottom of the hill where the crash occurred, were killed.
The administrators of the estates of those who lost their lives commenced lawsuits against Shahed Hussain, individually and doing business as ("d/b/a") Prestige Limousine and Chauffeur Services, among other d/b/as; Nauman Hussain, Shahed Hussain's son who was involved in the operations of the limousine business; Malik Riaz Hussain, Shahed Hussain's brother and Nauman Hussain's uncle; and Mavis Discount Tire, Inc. and other Mavis entities. Defendants Shahed Hussain d/b/a Prestige Limousine and Chauffeur Services and Nauman Hussain have answered. Mavis Discount Tire, Inc. and related entities have filed a pre-answer motion to dismiss, which is not yet fully submitted. Addressed herein is Malik Riaz Hussain's pre-answer motion to dismiss for lack of personal jurisdiction.
Some of the plaintiffs also sued Apple Barrel Country Store and the Estate of Scott Lisinicchia, the driver of the limousine. Both have answered.
Defendant Malik Riaz Hussain's attorney has accepted service on his client's behalf, but counsel contends that his client's contacts with New York and the limousine business are statutorily and constitutionally insufficient for New York to exercise personal jurisdiction over him. According to Malik Riaz Hussain, he is a resident of Pakistan, brother of Shahed Hussain, and uncle of Nauman Hussain. He avers that he last visited New York for a vacation with his wife in 2006, and, with the exception of the motel property discussed below, he has owned no property in New York, has no brokerage accounts in New York, and has not had a bank account in New York since 1996. He claims he has had no involvement in Shahed and Nauman Hussain's limousine business, and that, before the crash, he did not know that they owned a limousine business or that they may have parked some limousines on the motel property.
Contrary to plaintiffs’ argument, the Court can consider the unsworn, unnotarized affirmation of Malik Riaz Hussain, who is located physically outside the geographic boundaries of the United States — a fact that plaintiffs do not dispute, wherein he affirmed the truth of his averments under penalties of perjury, pursuant to CPLR 2106 (b).
Malik Riaz Hussain admits that from 2010 through May 2017 he owned the motel property in Wilton, New York, which is now owned by Nauman Hussain and another nephew, Shahyer Hussain. He bought the Wilton motel property in 2010 from his brother Shahed Hussain's then-wife, after Shahed told him he was having difficulty meeting mortgage payments. He avers that he purchased the motel and paid off the mortgage so that his family could use the property, and that he has never seen the motel or been involved in its operations. He contends that in May 2017, one year before the fatal crash, he transferred title to his two nephews, Nauman and Shahyer Hussain, for one dollar. He produced a copy of the deed, and he asserts that he only recently learned that the transfer of title was not filed in the Saratoga County Clerk's office.
Finally, defendant Malik Riaz Hussain avers that he is a principal shareholder in Bahria Town Pvt. Ltd., a real estate company incorporated in Pakistan in 1985, which employs 25,000 people and builds small suburban communities in Pakistan. Among its many offices worldwide, Bahria Town Pvt. Ltd. has a one-person customer service office in New York City. He claims he has never visited the New York City office or played a role in its day-to-day operations.
Plaintiffs oppose the motion. In their complaints, they allege "upon information and belief" that "at all times relevant" Malik Riaz Hussain "was at least a partial financier of [the subject] limousine business and exercised control over the operations of said limousine business"; that he "owned, in whole or in part, the limousine business being operated under one or more of the d/b/as"; and that he "exercised control over the limousine business being operated under one or more of the d/b/as." But while these allegations bear no evidentiary value, plaintiffs also rely on the evidence Malik Riaz Hussain himself submitted, and they have offered some documentary proof of their own.
Specifically, plaintiffs point to findings in the reports and documents related to the investigation by the National Transportation Safety Board (NTSB). These documents indicate that the Ford Excursion limousine involved in the crash was registered to Shahed Hussain at the Wilton motel address. And, according to the NTSB report, Shahed and Nauman Hussain listed the Wilton motel as the address of the limousine business on various applications for d/b/a certificates and other approvals submitted to federal, state, and local authorities between 2014 and 2018. Several of these applications were made when Malik Riaz Hussain concededly owned the motel. Plaintiffs also point to evidence suggesting that defendants’ limousines, including the 2001 Ford Excursion involved in the crash, may have been parked on the motel property at various times.
And, plaintiffs argue, Malik Riaz Hussain's averments that he deeded the Wilton motel property back to his nephews a year before the crash and relinquished any further interest in his family's motel and its use are suspect because the consideration paid by the nephews was one dollar and the deed transfer was not recorded in the County Clerk's office. Plaintiffs argue that these facts, showing a substantial familial relationship with his brother and nephew and a past willingness to provide financing for their activities in New York, constitute a "sufficient start" to permit them to explore through limited jurisdictional discovery whether Malik Riaz Hussain "did transact business within the state of New York pursuant to CPLR § 302, and did have sufficient connection to the State" to warrant the exercise of personal jurisdiction.
Analysis
When the defense of lack of personal jurisdiction is timely asserted, a New York court may not exercise special jurisdiction over a nondomiciliary unless two requirements are satisfied: the action is permissible under the long-arm statute ( CPLR 302 ) and the exercise of jurisdiction comports with due process (see Williams v Beemiller, Inc. , 33 NY3d 523, 528 [2019] ; D & R Global Selections, S.L. v Bodega Olegario Falcon Pineiro, 29 NY3d 292, 297-299 (2017) ]). "Due process requires that a nondomiciliary have ‘certain minimum contacts’ with the forum and ‘that the maintenance of the suit does not offend traditional notions of fair play and substantial justice’ " ( Williams v Beemiller , 33 NY3d at 528, quoting International Shoe Co. v Washington , 326 US 310, 316 [1945] ). "If either the statutory or constitutional prerequisite is lacking, the action may not proceed" ( Williams v Beemiller , 33 NY3d at 528 ).
New York authorizes special jurisdiction over a nondomiciliary through its long-arm statute, CPLR 302. As arguably relevant here, CPLR 302 (a) provides that a court may exercise personal jurisdiction "over any non-domiciliary, ... who in person or through an agent":
1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or
2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or
* * *
4. owns, uses or possesses any real property situated within the state.
Due process will be satisfied where the nondomiciliary defendant purposefully availed himself of the privilege of conducting activity in New York and there was a substantial relationship or nexus between that alleged activity and the claim asserted by plaintiffs (see D & R Global Selections, S.L. v Bodega Olegario Falcon Pineiro , 29 NY3d at 298-299 ; Gottlieb v Merrigan , 170 AD3d 1316, 1317-1319 [3d Dept 2019], lv denied 33 NY3d 908 [2019] ; see also Bristol Myers Squibb Co. v Superior Court of California , 137 S Ct 1773 [2017] ).
On a motion pursuant to CPLR 3211 (a) (8) to dismiss for lack of personal jurisdiction, the party asserting jurisdiction has the ultimate burden of demonstrating "satisfaction of statutory and due process prerequisites" ( Stewart v Volkswagen of Am. , 81 NY2d 203, 207 [1993] ; see Archer-Vail v LHV Precast Inc. , 168 AD3d 1257, 1260-1261 [3d Dept 2019] ). In opposing the motion to dismiss pursuant to CPLR 3211 (a) (8), however, plaintiffs do not have the burden of "making a prima facie showing of personal jurisdiction; rather, plaintiff[s] need only demonstrate that [they] made a ‘sufficient start’ to warrant further discovery" ( Archer-Vail v LHV Precast Inc. , 168 AD3d at 1261, quoting Bunkoff Gen. Contrs. v State Auto. Mut. Ins. Co. , 296 AD2d 699, 700 [3d Dept 2002] ; see Best v Guthrie Med. Group, P.C. , 175 AD3d 1048, 1050 [4th Dept 2019] ; Avilon Auto. Group v Leontiev , 168 AD3d 78, 89 [1st Dept 2019] [holding that plaintiff need not present definitive proof of personal jurisdiction, but only make a "sufficient start" in demonstrating such jurisdiction by reference to pleadings, affidavits, and other suitable documentation]). Whether plaintiffs have made a "sufficient start" to warrant discovery pursuant to CPLR 3211 (d) is a matter within Supreme Court's discretion (see Archer-Vail v LHV Precast Inc. , 168 AD3d at 1261 ).
Here, plaintiffs have made a "sufficient start" to warrant limited jurisdictional discovery pursuant to CPLR 3211 (d). Malik Riaz Hussain himself has conceded that he contributed substantial financial resources to help his family members maintain their use of the Wilton motel in Saratoga County, New York as late as 2017. The NTSB documents submitted by plaintiffs establish significant interrelationship between the Wilton motel property and Shahed and Nauman Hussain's limousine business. According to those documents, Shahed and Nauman Hussain repeatedly used the Wilton motel address as the address of their limousine business when applying for certificates and permits from governmental authorities. Malik Riaz Hussain was the conceded owner of the Wilton motel property when many of these applications were made. The 2001 Ford Excursion limousine involved in the crash was registered to Shahed Hussain at the address of the Wilton motel. And it appears that limousines used in Shahed and Nauman Hussain's business were sometimes housed or parked at the Wilton motel.
CPLR 3211(d) provides that "[s]hould it appear from affidavits submitted in opposition to a motion made under subdivision (a) or (b) that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion, allowing the moving party to assert the objection in his [or her] responsive pleading, if any, or may order a continuance to permit further affidavits to be obtained or disclosure to be had and may make such other order as may be just."
If Malik Riaz Hussain indeed had transferred all his interest and control of the Wilton motel property to his nephews in 2017, a year before the crash, and if he indeed had no involvement in either the financing or control of the motel property since then and no involvement in the financing and control of Shahed and Nauman Hussain's limousine business at any time, the New York Courts would lack jurisdiction over him in a lawsuit alleging liability arising from the limousine crash on October 6, 2018. But plaintiffs have no way to test Malik Riaz Hussain's averments of non-involvement without limited jurisdictional discovery. Because of the circumstances of the other defendants in this case, plaintiffs have not been able to obtain discovery about the financing and operational control of the limousine business, or of the interrelationship between the motel business and the limousine business. Shahed Hussain reportedly resides outside of this country and has not appeared individually in these actions. And, given the pending criminal charges against defendant Nauman Hussain, plaintiffs have had little or no ability to obtain discovery from him regarding the financing and operational control of the limousine business or the interrelationship between the motel business and the limousine business. Plaintiffs’ inability to obtain discovery from the other Hussain defendants weighs in favor of allowing limited jurisdictional discovery from Malik Riaz Hussain, before foreclosing that opportunity by premature dismissal of the claims against him.
Defendant's reliance on Gottlieb v Merrigan (170 AD3d 1316 [3d Dept 2019] ) is misplaced. In that case, the Third Department affirmed the dismissal of a claim against a nondomiciliary on a summary judgment motion — after discovery and the filing of note of issue — finding that the defendant's activities did not amount to the transaction of business in New York and, in any event, that they lacked an articulable nexus or substantial relationship between the transactions and the alleged injury. As plaintiffs point out, however, in a prior appeal in the same case, the Third Department had reversed the trial court's order granting defendant's pre-answer motion to dismiss for lack of personal jurisdiction, finding that plaintiff had made a "sufficient start" to establishing personal jurisdiction to warrant further discovery (see Gottlieb v Merrigan , 119 AD3d 1054 [3d Dept 2014] ). There the Court observed, "[T]he issue of whether long-arm jurisdiction exists often presents complex questions; ‘[d]iscovery is therefore desirable, indeed may be essential, and should quite probably lead to a more accurate judgment than one made solely on the basis of inconclusive affidavits’ " ( Gottlieb v Merrigan , 119 AD3d at 1056-1057, quoting Peterson v Spartan Indus. , 33 NY2d 463, 467 [1974] ). Here too, limited discovery would shed more light on the facts to permit a more accurate determination of whether there is a basis to exercise personal jurisdiction over defendant Malik Ruiz Hussain. It may be, as in Gottlieb v Merrigan , that plaintiffs will uncover no sufficient basis for personal jurisdiction. But cutting off any attempt to uncover relevant facts by dismissing the claims against him now would be premature.
In sum, the submissions before the Court show that (1) Malik Riaz Hussain has familial relationships with the other Hussain defendants which have caused him to contribute financially to their New York activities; (2) as recently as 2017, one year before the crash, these familial relationships were close enough that Malik Riaz Hussain financed commercial property for their use — i.e. the Wilton motel in Saratoga County, New York; (3) the Wilton motel has been linked to the limousine business owned and operated by Shahed and Nauman Hussain, who identified the motel's address as their place of business; (4) the limousine involved in the crash was registered at the Wilton motel's address; and (5) the purported transfer of the deed for the Wilton motel property in 2017 to Nauman Hussain and another family member was not at arms-length. These facts, combined with the gravity of the loss in this case, render it inappropriate to dismiss the claims against defendant Malik Riaz Hussain without allowing plaintiffs limited jurisdictional discovery to explore his assertions that he has had no involvement with the motel since 2017 and no involvement whatsoever with the limousine business — either financially or operationally. Because plaintiffs have made a "sufficient start" to establishing statutory and constitutional connections to the business that owned and operated the limousine involved in the Schoharie County crash, defendant Malik Riaz Hussain's motion to dismiss is denied, without prejudice to renewal following limited jurisdictional discovery.
The Court emphasizes that it is authorizing only limited jurisdictional discovery, focused on Malik Riaz Hussain's financial transactions with the other Hussain defendants, and communications that potentially pertain to their activities in New York that occurred in temporal proximity to the October 6, 2018 limousine crash. The Court is not authorizing carte blanche discovery into Malik Riaz Hussain's personal and international business affairs, but only that discovery likely to be relevant to the claims in this case. The parties are invited to submit an agreed-upon plan to conduct limited discovery, on or before March 1, 2021. If the parties cannot agree upon such a plan, the Court will conference the matter and issue an order setting the schedule for and scope of limited jurisdictional discovery.
Accordingly, it is
Ordered that defendant Malik Riaz Hussain's motion to dismiss the claims against him in these nine coordinated actions for lack of personal jurisdiction is denied, without prejudice to renewal following limited jurisdictional discovery.
This constitutes the decision and order of the Court, the original of which is being uploaded to NYSCEF for electronic entry by the Albany County Clerk. Upon such entry, counsel for plaintiffs shall promptly serve notice of entry on all other parties entitled to such notice.
Papers Considered
1. Notice of Motion, dated October 27, 2020;
2. Memorandum in Support of Motion to Dismiss, dated October 27, 2020;
3. Affirmation of Malik Riaz Hussain, with Exhibits A-B, dated October 27, 2020;
4. Affirmation of Rebecca J. Foxwell, Esq. in Support of Defendant's Motion to Dismiss, dated October 27, 2020;
5. Affirmation of Thomas J. Mortati, Esq. in Opposition to Motion to Dismiss, with Exhibits A-C, dated December 1, 2020;
6. Plaintiffs’ Memorandum of Law in Opposition to Defendant's Motion to Dismiss, dated December 1, 2020; and
7. Memorandum of Law in Reply, dated December 8, 2020.