Breiterman v Haidt (2004 NY Slip Op 50683(U))

Breiterman v Haidt

2004 NY Slip Op 50683(U)

Decided on June 17, 2004

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

SEYMOUR BREITERMAN AND ELEANOR BREITERMAN, Plaintiffs-Appellants, 03-378

against

HAROLD HAIDT AND ELAINE HAIDT, Defendants-Respondents.

Plaintiffs, as limited by their brief, appeal from that portion of an order of the Civil Court, New York County, entered November 25, 2002 (Donna G. Recant, J.) which dismissed the complaint for lack of personal jurisdiction.

We sustain the dismissal of the complaint on jurisdictional grounds, based on plaintiffs' failure to establish that the North Carolina domiciled defendants committed a tortious act within New York City (see CCA 404[a][2]) in connection with their alleged conversion of the gratuitously bailed items delivered by plaintiffs to defendants' (now former) Westchester County residence (see Stavropoulos v Asano, 2002 WL 655261 [App Term, 2d Dept]). The invocation of long-arm jurisdiction is unwarranted, there being no allegation that defendant performed any act within New York City which relates to the harm alleged in the complaint. Nor have plaintiffs demonstrated that further discovery is needed on the jurisdictional issue, since their discovery request was premised on the faulty assumption that defendants' possible state-wide contacts would suffice for long-arm jurisdiction purposes (cf. CPLR 302; Lancaster v Colonial Meter [*2]Freight Line, 177 AD2d 152, 157-159 [1992]).

From a procedural standpoint, we note that there was no violation of the single-motion rule (see CPLR 3211[e]), since defendants' original CPLR 3211(a) motion to dismiss on Statute of Limitations grounds was never decided on the merits, but was held in abeyance and ultimately denied as moot in the order under review (see Curtis v Chetrit, 243 AD2d 423 [1997]). Finally, in order to grant complete relief to parties united in interest and in accordance with CPLR 2001, the court property disregarded the apparent clerical error in the designation of the movant in the notice of motion and treated the dismissal motion as taken by both defendants (see Tagliaferri v Weiler, 1 NY3d 605 [2004]).