STATE OF NEW YORK

SUPREME COURT : COUNTY OF CHAUTAUQUA


 

CURT B. WESTROM,


Plaintiff

-vs- Index #H08250


ELECTRONIC TECHNOLOGY GROUP,INC.,


Defendant and Third-party Plaintiff

-vs-


FRANK COSTANZO, CHARLENE COSTANZO,

SUNDOWN TECHNOLOGY, INC., KRISTPH, INC.,

LIFE ENERGY RESOURCES, INC.,

INTERNATIONAL HEALTH FOUNDATION, INC.,

JAMES T. WALTON and

WALTON GROUP OF JAMESTOWN, INC.,


Third Party Defendants


 

CURT B. WESTROM,


Plaintiff & Fourth-party Plaintiff,


-vs-


EUGENE DeWITT and

TILDEN FINANCIAL CORP.,


Fourth-Party Defendants.

 


 


WRIGHT, WRIGHT & HAMPTON

(Edward P. Wright, Esq.

of Counsel) for Plaintiff

Curt B. Westrom


MACKRELL, ROWLANDS, PREMO &

PIERRO (Patrick J. Mackrell,

Esq. of Counsel) for Defendant

Tilden


BRANDT, LAUGHLIN, SCHAACK,

WHIPPLE AND CLARK, P.C.

(Richard F. Whipple, Jr., Esq.

of Counsel) for Defendant

DeWitt


SPOTO & SLATER

(Richard V. Slater, Esq. of

Counsel) for Defendants

Costanzo, Life Energy & Kristph


C. ROBERT VAHL, ESQ.

for Defendant Walton Group



DECISION and ORDER



GERACE, J.

4th party defendant DeWitt, an Arizonian, has challenged the jurisdiction of the Court on the grounds he is a non-resident and has had no transactions in New York on which to ground jurisdiction.


He moved to dismiss the summons and complaint pursuant to

Rule 3211 and Section 1007 of the CPLR on the grounds that

"Plaintiff's procedure or method of impleader of commencing a

'Fourth-Party' action against Eugene DeWitt is improper." DeWitt filed an answer containing general denials and the affirmative defense claiming the court lacks jurisdiction.


By Motion No. 9, defendant Electronic Tech Group moved for a protective order to have depostions or interrogatories conducted in Arizona. As confirmed later in this decision, the Court denies the motion for depostions without prejudice and directs that interrogatories be exchanged by all parties.


JURISDICTION


By Motion No. 7 DeWitt moved to dismiss the complaint on the ground of failure to state a cause of action. Now, by motion number 10, he moved to dismiss for lack of personal jurisdiction.


If a CPLR 3211 motion is made on any ground and it omits the personal jurisdictional objections, those objections are waived and may not be included in any later answer. CPLR 3211(e). If the objection is used as a defense in the answer instead of by motion, it evinces the defendant's preference to defer determination of the objection until later, perhaps the trial itself. SEIGEL, NEW YORK PRACTICE.


A plaintiff, however, may bring the issue to prompt

adjudication by moving to dismiss the defense pursuant to CPLR

3211(b). See SEIGEL, NEW YORK PRACTICE, Page 402. Westrom has

made such a motion. See motion 11.


Westrom's January 24th, 1995 affidavit recites that: "On

August 9, 1993, during discussions at the closing of the sale of EJE Research Corp., . . . Mr. DeWitt presented me with a

previously prepared personal guaranty. . ." and his January 1995 Bill of Particulars to DeWitt does pinpoint the meeting place in Buffalo; that DeWitt was there in his personal and corporate capacity.


The test is whether a "defendant has engaged in some

purposeful activity in this State in connection with the matter in suit." LONGINES-WITTNAUER WATCH CO. V BARNES & REINECKE, INC. 15 NY2d 443, 261 NYS2d 8. A single, "infinitesimal" gesture, rather than something that was part of the bargain, is not enough. MCKEE ELECTRIC CO. V RAULAND-BORG CORP, 20 NY2d 377, 283 NYS2d 34.


Defendant DeWitt's motion is based on the affidavit of his attorney who avers that if Mr. Dewitt was in Buffalo, he was there as CEO of ETG. In fact, none of the affidavits on behalf of Dewitt or ETC are by Dewitt himself; the affidavits were made by his attorney with the excuse that Dewitt and FTC are nonresidents.


That excuse is available for verification of pleadings, but, not for affidavits in support of motions where jurisdiction is attacked by a non-resident who claims there is no New York contact on which to base jurisdiction.

 

 

Westrom has established that Mr. Dewitt was in Buffalo, New York on August 9, 1993 at the offices of his attorneys conducting "purposeful activity in connection with the matter in suit".


That is sufficient to provide the Court with jurisdiction.


INTERPLEADER ARGUMENTS


Impleader should lie whenever there is a link between the

pending claims in the main lawsuit and the impleader effort.


There is no requirement under the CPLR that the two claims be related by a common question of law or fact. SIEGEL, NEW YORK PRACTICE, Section 155, 157; NORMAN CO V. COUNTY OF NASSAU, 63 MISC.2d 969, 314 NYS2d at 50; HOLLOWAY V. BROOKLYN UNION GAS CO, 50 AD2d 603, 375 NYS2d 396.


The affidavit in support of this motion does not set out

dates when ETG closed its New York offices; none of the papers in the cases indicate whether ETG was doing business in New York when the causes of action arose.

Interpleader is appropriate here. That portion of defendant DeWitt's motion seeking to dismiss on the grounds of improper impleader as unauthorized by the CPLR is denied.


DeWitt's motions (motions 7 to dismiss complaint, and 10 to dismiss 4th party complaint) are denied; plaintiff Westrom's cross motions 8 and 11 to dismiss the affirmative defenses in DeWitt's answer are granted.


DISCOVERY

 

At an earlier return date, the Court had directed the

parties to initially proceed by interrogatories to provide the

Court with more support for their contentions and possible

justification for appropriate depositions. To date, the Court has only those interrogatories furnished by Tilden in its motions.


Dewitt contends discovery is stayed until the Court decides his motions to dismiss. CPLR 3214 does provide for an automatic stay in 3211, 3212 and 3213 motions "unless the Court orders otherwise." The Court did so direct on the initial return date of some of the motions herein, but, no order was submitted to the Court for signature and service.


The Court hereby directs all parties to initially proceed by interrogatories and document discovery, followed by appropriate depositions. Counsel are to prepare and submit to the Court and opposing counsel by July 15, 1995, a proposed scheduling order for the Court's consideration. If the parties cannot agree on the deadlines for interrogatories or the sequence and place of depositions, counsel are to schedule a conference with the Court.


THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER

ORDER IS NECESSARY.


DATED: June 23, 1995

Mayville, New York


_____________________________

JOSEPH GERACE

SUPREME COURT JUSTICE