Opinion
13001 Index No. 25723/14E Case No. 2020-02838
01-28-2021
Walter WEIK, Plaintiff-Respondent v. LSG SKY CHEFS NORTH AMERICA SOLUTIONS, INC., et al., Defendants-Appellants, "John Doe" et al., Defendants
Elsasser Law Group, PC, New York (Deborah A. Elsasser of counsel), for appellants. Grey & Grey, LLP, Farmingdale (Evelyn F. Gross of counsel), for respondent.
Elsasser Law Group, PC, New York (Deborah A. Elsasser of counsel), for appellants.
Grey & Grey, LLP, Farmingdale (Evelyn F. Gross of counsel), for respondent.
Kapnick, J.P., Mazzarelli, Kennedy, Mendez, JJ.
Order, Supreme Court, Bronx County (Donald A. Miles, J.), entered November 8, 2019, which granted plaintiff's motion for leave to serve a supplemental summons and amended complaint naming Sky Chefs, Inc. (SCI) as a defendant, denied the motion of defendants LSG Sky Chefs North American Solutions (NAS) and LSG Sky Chefs Supply Chain Solutions (SCS) for summary judgment dismissing the complaint, and denied defendant Constance Food Group (CFG)'s cross motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant defendants NAS, SCS, and CFG's motions for summary judgment, and otherwise affirmed, without costs.
"[A] corporate defendant's registration to do business in New York and the designation of the Secretary of State to accept service of process in New York does not constitute consent by the corporation to submit to the general jurisdiction of New York for causes of action that are unrelated to the corporation's affiliations with New York" (see Fekah v. Baker Hughes Inc., 176 A.D.3d 527, 528, 110 N.Y.S.3d 1 [1st Dept. 2019] ). Accordingly, NAS did not consent to general jurisdiction by registering in New York.
The court did not have personal jurisdiction over NAS or SCS under CPLR 302. Although both transact business in New York (CPLR 302[a][1] ), and SCS owns CFG, a company that owns real property in New York (see CPLR 302[a][4] ), plaintiff failed to show a substantial relationship between his accident on a LaGuardia Airport tarmac and defendants' New York business contacts (see Johnson v. Ward, 4 N.Y.3d 516, 519, 797 N.Y.S.2d 33, 829 N.E.2d 1201 [2005] ). To the extent that plaintiff's theory for reaching NAS and SCS relied on veil-piercing, he failed to allege NAS and SCS's corporate parent was using NAS or SCS to abuse the corporate form (see Deutsche Bank, AG v. Vik, 142 A.D.3d 829, 40 N.Y.S.3d 23 [1st Dept. 2016] ; New Media Holding Co. LLC v. Kagalovsky, 97 A.D.3d 463, 464–465, 949 N.Y.S.2d 22 [1st Dept. 2012] ). Since plaintiff also relies on a veil-piercing theory against CFG, but does not allege that the corporate form was abused, the court should have granted defendants' cross motion for summary judgment with respect to CFG (see Matter of Morris v. State Dept. of Taxation & Fin., 82 N.Y.2d 135, 141, 603 N.Y.S.2d 807, 623 N.E.2d 1157 [1993] ; Sheridan Broadcasting Corp. v. Small, 19 A.D.3d 331, 798 N.Y.S.2d 45 [1at Dept. 2005] ).
The court correctly granted plaintiff's motion for leave to amend the complaint to add SCI as a defendant. Plaintiff adequately showed that the claim against SCI arose from the same injury, and that SCI knew or should have known that but for plaintiff's pleading error, it would have been included as a defendant (see Higgins v. City of New York, 144 A.D.3d 511, 512–513, 43 N.Y.S.3d 1 [1st Dept. 2016] ). With respect to the second criterion of the relation-back doctrine, which requires that plaintiff show the parties are united in interest, the fact that discovery is incomplete weighs in favor of allowing plaintiff to amend the complaint (see Stanger v. Shoprite of Monroe, NY, 180 A.D.3d 408, 409, 119 N.Y.S.3d 130 [1st Dept. 2020] ).