On or about August 21, 2006, plaintiff, a licenced cashier of checks, alleges that it cashed check number 23711 dated July 11, 2006 (the "check") for defendant Joseph Hodge ("Hodge") in the amount of $3,993.47. The drawer/maker of the check was defendant Dinan Engineering, Inc., ("Dinan"), and Hodge was its employee. Plaintiff alleges that the check was dishonored on or about August 31, 2006, due to defendant's "Payment Stopped" order.

Plaintiff alleges that this check was mailed to Hodge at a Brooklyn address, and that Hodge had a history of cashing checks at plaintiff's store. Prior to cashing the check, plaintiff claims it contacted defendant to verify it. After the check was dishonored, plaintiff commenced this action. Dinan did not serve or file an answer to the complaint, and a default judgment was entered against it. Dinan has brought the within motion to vacate the default judgment and dismiss the complaint on the grounds that the court lacks personal jurisdiction over defendant and for improper service. Plaintiff opposes the motion.

In support of its motion, defendant submitted an affidavit of its vice-president Janice K. [*2]Dinan. Ms. Dinan stated that defendant Dinan, a manufacturer of parts for BMWs, is a privately held corporation organized and existing under the laws of the State of California, and that it only conducts business from its California office. She further stated that Dinan does not conduct business in New York, it is not licenced to conduct business in New York, it does not own or lease real estate in New York, it has no offices or employees in New York, it has no bank accounts in New York, and it has no authorized agent for service of process in New York. Finally, Ms. Dinan stated that Dinan's parts are distributed by independent BMW dealers in New York, but that none of the dealers are owned, controlled or operated by Dinan, nor does Dinan share employees with those dealers.

A foreign corporation is amenable to suit in New York courts under CPLR 301 if it is engaged in such a "continuous and systematic" course of "doing business" here that a finding of its "presence" in this jurisdiction is warranted (Laufer v Ostrow, 55 NY2d 305 [1982]; Frummer v Hilton Hotels Int'l, 19 NY2d 533 [1967]). New York courts use a "simple and pragmatic" test to determine whether the quality and nature of the corporation's contacts with New York make it reasonable and just to require the corporation to defend the action here (Laufer, 55 NY2d 305 supra; see also International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement, 326 US 310 [1945][to satisfy due process, foreign corporation must have "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice"]). To ascertain whether the corporation is present and doing business in New York, the court looks at factors such as whether the corporation leases office space in New York, whether it employs people within New York, or whether it has a bank account in New York (see Frummer v. Hilton Hotels Int'l, Inc., 19 NY2d 533 supra).

Defendant established that while Dinan's products are sold in New York by independently owned and operated BMW dealers, it is not "doing business" in New York so as to confer presence jurisdiction over defendant pursuant to CPLR 301 (see Delagi v Volkswagenwerk A.G. of Wolfsburg, Germany, 29 NY2d 426 [1972]["mere sales of a manufacturer's product in New York, however substantial, have never made the foreign corporation manufacturer amenable to suit in this jurisdiction"]; see also Landoil Resources Corp. v Alexander & Alexander Services, Inc., 77 NY2d 28 [1990]). Defendant's vice-president established that Dinan's contacts with New York are limited to mere sales of its product, and that it has no employees, agents, bank accounts or offices in New York. Plaintiff failed to establish otherwise, nor did plaintiff establish that further discovery on that issue is warranted (see Peterson v Spartan Industries, Inc., 33 NY2d 463 [1974]).

When the plaintiff's proof falls short of establishing presence jurisdiction, plaintiff may attempt to establish jurisdiction "upon a lesser showing of some business contacts within the State only if he demonstrates that his cause of action arose out of those business contacts" (McGowan v Smith, 52 NY2d 268 [1981]). New York's long-arm statute, CPLR 302(a)(1), provides that a court may exercise personal jurisdiction over a non-domiciliary who in person or through an agent "transacts any business within the state or contracts anywhere to supply goods [*3]or services in the state." Defendant alleges that even if the Court found that defendant "transacts business" in New York pursuant to CPLR 302(a)(1), the cause of action does not arise from that transaction of business in New York (see Kimco Exchange Place Corp. v Thomas Benz, Inc., 34 AD3d 433 [2d Dept 2006]).

The fact that defendant may have supplied its products to New York customers, such as Hassel BMW, is ineffective to sustain jurisdiction since plaintiff's action does not arise out of these sales (see J.E.T. Advertising Associates, Inc. v Lawn King, Inc., 84 AD2d 744 [2d Dept 1981]). Rather, plaintiff's action arises from its cashing of Dinan's stopped check to defendant Hodge in New York. This does not constitute conduct from which defendant should reasonably anticipate being haled into court in New York (see Kreutter v Mcfadden Oil Corp., 71 NY2d 460 [1988]; see also Success Marketing Electronice, Inc. v Titan Sec. Inc., 204 Ad2d 711 [2d Dept 1994][Florida corporation that stopped payment on check to New York company did not transact business in New York]; Citibank, N.A. v Intercontinental Bank, 169 Misc 2d 342 [Sup Ct, NY County 1996]).

Therefore, Dinan's motion to dismiss for lack of personal jurisdiction is hereby granted, and Dinan's motion to dismiss due to improper service is rendered moot.

Accordingly, plaintiff's complaint is hereby dismissed as against defendant Dinan, and the default judgment against Dinan is hereby vacated.

This constitutes the Decision and Order of this Court.

Dated:August 27, 2007________________________

MARGARET A. CHANJudge, Civil Court