Opinion
5478/10.
Decided March 23, 2011.
Plaintiff was represented by Alexander A. Yanos, Esq., Elliot Friedman, Esq., Patrick Oh, Esq., Omar Pringle, Esq., and Nilufar Hossain, Esq. of Freshfields Bruckhaus Deringer US LLP.
Defendants were represented by Scott London, Esq. of Miller Rosenfalck LLP.
Recitation in accordance with CPLR 2219 (a) of the papers considered on Plaintiff's motion for an order, pursuant to CPLR 3212, granting him partial summary judgment on his Complaint against defendant Nikolaus Ruzicska; and on Defendants' motion for an order, pursuant to CPLR 3211, dismissing the Complaint:
— Notice of Motion for Partial Summary Judgment on Liability Against the Individual Defendant
— Affirmation
Exhibits A-E
— Affidavit of George Perkins in Support of Plaintiff's Motion for Partial Summary Judgment on Liability Against the Individual Defendant
Exhibits A-F
— Memorandum of Law in Support of Plaintiff's Motion for Partial Summary Judgment on Liability Against the Individual Defendant
— Notice of Motion
Memorandum of Law
Exhibits A-D
— Affirmation of Alexander Yanos in Opposition to Defendants' Motion to Dismiss
Exhibits A-L
— Affidavit of George Perkins in Opposition to Defendants' Motion to Dismiss
Exhibits A-F
— Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss
— Reply Memorandum of Law in Further Support of Plaintiff's Motion for Partial Summary Judgment on Liability Against the Individual Defendant
Plaintiff was represented by Alexander A. Yanos, Esq., Elliot Friedman, Esq., Patrick Oh, Esq., Omar Pringle, Esq., and Nilufar Hossain, Esq. of Freshfields Bruckhaus Deringer US LLP. Defendants were represented by Scott London, Esq. of Miller Rosenfalck LLP.
The Complaint of plaintiff George Perkins purports to assert eight "causes of action," including three designated "Conversion," "Bailment," and "Replevin," seeking return of 53 works of art, or damages for their loss or destruction. Defendants Nikolaus Ruzicska, Galerie Nikolaus Ruzicska GmbH, and Ruzicska GmbH purport to allege 21 "affirmative defenses," including lack of personal jurisdiction and forum non conveniens.
Plaintiff moves for an order, pursuant to CPLR 3212, "granting partial summary judgment . . . on the issue of liability against the individual Defendant" ( see Notice of Motion for Partial Summary Judgment on Liability Against the Individual Defendant dated November 19, 2010.) Defendants move for an order, "dismissing the complaint pursuant to CPLR § 3211 (a) (5) and (7) for res judicata [and] failure to state a claim" ( see Notice of Motion dated September 15, 2010.)
Looking first at Defendants' motion, since, if granted, it would render Plaintiff's motion moot, Defendants make no showing whatsoever to support the grounds specified in the Notice of Motion. For this reason alone, Defendants' motion might be denied. Indeed, in their Memorandum of Law, Defendants specify the grounds of their motion as CPLR 3211 (a) (2), i.e., lack of subject matter jurisdiction; (a) (7), i.e., failure to state a cause of action; and (a) (8), i.e., lack of personal jurisdiction. They make no showing to support dismissal pursuant to any of the cited provisions other than CPLR 3211 (a) (8).
As to personal jurisdiction, to the extent that Defendants move based upon improper service, their motion must be denied for at least four reasons: first, improper service is not specifically alleged in Defendants' answer ( see Hatch v Tu Thi Tran, 170 AD2d 649 [2d Dept 1991]; second, if the answer is understood as raising the defense, the motion is untimely under CPLR 3211 (e); third, the Affidavit in Support of Motion of defendant Nikolaus Ruzicska is not in admissible form ( see CPLR 2309 [c]); and fourth, Mr. Ruzicska's conclusory assertion that he is not "the authorized agent for process of service [ sic]" of the corporate Defendants is both insufficient under the statute specifying the persons to whom process may be delivered for purposes of service upon a corporation ( see CPLR 311 [a] [1]), and lacking in the specificity required to challenge the affidavit of service ( see Bevilacqua v Bloomberg, L.P. , 70 AD3d 411 , 412 [1st Dept 2010].)
As to personal jurisdiction in the sense of "the power, or reach, of a court over a party, so as to enforce judicial decrees" ( see Keane v Kamin, 94 NY2d 263, 265), since the individual Defendant was served while he was physically present in the State, jurisdiction over him is proper ( see Burnham v Superior Court, 495 US 604; Matter of Nhan Thi Thanh Le, 168 Misc 2d 384, 387-89 [Sup Ct, Queens County 1995].)
As to the corporate Defendants, they are deemed "present" in the State for purposes of jurisdiction if, at the commencement of the action ( see Uzan v Telsim Mobil Telekomunikasyon Hizmetleri A.S. , 51 AD3d 476, 477 [1st Dept 2008]), they were "doing business" in the State ( see Landoil Resources Corp. v Alexander Alexander Servs., Inc., 77 NY2d 28, 33-34.) The corporate Defendants make no evidentiary showing, by affidavit or otherwise, that they were not "doing business" in New York when this action was commenced. ( See Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc ., 65 AD3d 623 , 623-24 [2d Dept 2009]; Oggeri v Kay Chemical Co., 102 AD2d 848, 848-49 [2d Dept 1984].)
Similarly, as to the "defense" of forum non conveniens ( see CPLR 327 [a]), Defendants fail to provide any evidentiary basis for their assertion that New York would be so inconvenient for them that "substantial justice" ( see id.) requires thatNew York deprive this resident Plaintiff of the opportunity to pursue his claims here. Specifically, Defendants provide no evidence addressed to the factors to be balanced on such a motion ( see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479; Matter of Oxycontin II, 76 AD3d 1019, 1021 [2d Dept 2010].)
Turning, then, to Plaintiff's motion, although not stated in the notice of motion, it appears from the Memorandum of Law submitted in support that Plaintiff is seeking summary judgment on the alleged causes of action for conversion, bailment, and replevin. In the first instance, Plaintiff "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." ( See Alvarez v Prospect Hosp., 68 NY2d 320, 324.) The movant must tender "evidentiary proof in admissible form." ( See Zuckerman v New York, 49 NY2d 557, 562.)
Plaintiff submits his own affidavit with several attachments. He asserts that in 2000 he delivered photographs to a gallery in Salzburg, non-party Galerie Thaddaeus Ropac, for sale by the gallery; that defendant Nikolaus Ruzicska was at that time an employee of Gallerie Thaddaeus Ropac; that in February 2005 he was informed by Gallerie Thaddaeus Ropac that, in accordance with his request, 37 photographs, designated the "Works," and four smaller photographs, designated the "Etchings," were delivered to the individual Defendant "at his new gallery"; that in 2008 Plaintiff mailed to the individual Defendant 12 proof prints of new works, designated the "Proof Prints"; that in May 2009 Plaintiff asked the individual Defendant "to return the unsold Works and Etchings," and he inquired about the Proof Prints; and that in response he received the following e-mail communication, quoted in its entirety:
"Dear George
That's great news, congratulations. I will ask my staff who returned the prints to you and when. If they were missent they must have been returned to the gallery. One of the girls must have misplaced them, but then again that has never happened before. Information to follow.
As for the works they were delivered to us years ago from Ropac. You had disappeared for years by then, to our knowledge you were not an artist any longer, working in the fashion world. We had no storage back then. We unframed the prints, the frames were destroyed, the glass recycled, and the prints themselves were used by some young artist as supports for their paintings. I am sorry not to have better news for you.
Best
Nikolaus"
The Court notes in the first instance that there is no mention in Plaintiff's affidavit of either defendant Galerie Nikolaus Ruzicska GmbH or defendant Ruzicska GmbH, no allegation of any agreement between Plaintiff and either of the corporate Defendants (or, for that matter, the individual Defendant), and no evidence of the relationship between and among the Defendants.
Except for the e-mail communication quoted above, the attachments to Plaintiff's affidavit do not constitute "evidentiary proof in admissible form" ( see Zuckerman v New York, 49 NY2d at 562.) The communications from Galerie Thaddaeus Ropac, both in 2005 and 2010, are hearsay, and are not shown to be admissible under any exception to the hearsay rule.
The communication from the individual Defendant is also hearsay, but is admissible under the "party admission" exception to the hearsay rule ( see Prince, Richardson on Evidence § 8-201 et seq. [11th Ed Farrell].) The e-mail can fairly be read as acknowledging that Defendant received prints from Plaintiff and "the works . . . delivered to us years ago from Ropac," and that Defendant was no longer in possession of them. That communication, however, is insufficient as an admission as to the number of prints and "works . . . delivered . . . from Ropac" that were received, or their description. There is no other admissible evidence as to receipt.
The Court has not overlooked Plaintiff's First Set of Requests for Admission to Defendants, which is an exhibit to Plaintiff's counsel's Affirmation, but which is not attested by counsel as having been served, or accompanied by an affidavit of service or other evidence of service. Indeed, there is nothing in the Affirmation that attests to Defendants' failure to deny the statements in Plaintiff's notice ( see CPLR 3123 [a].)
In any event, a notice to admit is not to be used as a substitute for a disclosure device, or to seek admissions that go "to the heart of the matter," or that are contrary to the party's previous denials in its pleading. ( See Morreale v Serrano , 67 AD3d 655 , 655-56 [2d Dept 2009]; Tolchin v Glaser , 47 AD3d 922 , 923 [2d Dept 2008]; Glasser v City of New York, 265 AD2d 526 [2d Dept 1999]; Rosario v City of New York, 261 AD2d 380, 381 [2d Dept 1999]; Riner v Texaco, Inc., 222 AD2d 571, 572 [2d Dept 1995].) Here Defendants' Verified Answer to Complaint with Affirmative Defenses (¶¶ 4, 10, 13, 16) denies the material allegations Plaintiff's Complaint as to the causes of action on which Plaintiff seeks summary judgment.
If Plaintiff is truly of the view that the matter is ready for immediate trial, he may file his note of issue ( see CPLR 3402 [a]; Uniform Civil Rules for the Supreme Court and the County Court § 202.21, 22 NYCRR § 202.21.)
Both Plaintiff's motion and Defendants' motion are denied.