The motion of defendant Eden Beauty Concepts, Inc., d/b/a Eufora International Inc., s/h/a Eufora (hereinafter "Eufora"), inter alia, for dismissal of the complaint on the ground that the court lacks personal jurisdiction over the defendant is decided as follows.

This matter arises out of an alleged breach of contract between plaintiff and defendant Eufora, a corporation which describes itself as "engaged in the manufacture, sale and distribution of hair, body & skin care products to the professional salon beauty industry" (see Eufora's Distributorship Agreement, Plaintiff's Exhibit A). Plaintiff claims that after performing under such an agreement for four years, he received a telephone call from California advising him that all of his distribution rights were being cancelled effective March 31, 2006. It is alleged that by the terms of the agreement, any such notice was required to be given in writing, and that the agreement was not due to expire until July of 2007. This action for breach of contract followed, with plaintiff effecting personal service upon defendant's "owner," i.e., "president", by personal delivery at its corporate address in California (see Defendant's Exhibit A).

In support of its motion to dismiss for lack of personal jurisdiction, Eufora sets forth in the January 26, 2007 affidavit of its corporate president, Elizabeth Bewley (see Defendant's Exhibit A), that the company has virtually no business contact with New York. According to Ms. Brewley, Euphora (1) is incorporated in California; (2) derives substantially all its business revenue through the manufacture, sale and distribution of hair, body and skin care products to the professional salon beauty industry in California; (3) has no employees, officers, offices, bank accounts, real estate or telephone listings in New York; (4) is not engaged in any continuous or systematic course of business in New York; and (5) derives little revenue from the State. Finally, [*2]it is alleged that plaintiff is not and never has been employed by Euphora, and that he is not authorized to operate as a subsidiary of the defendant. If not dismissed for lack of jurisdiction, defendant asks that the matter be dismissed pursuant to CPLR 327(a) based on forum non conveniens.

In opposition to the motion, plaintiff asserts that Eufora does, in fact, have employees and offices in New York, and names "Robbie DaBiere", a purported resident of New York, as an employee of Eufora who does business within the State. Additionally, plaintiff claims that Eufora's training seminars in New York demonstrate "some articulable nexus between the business transacted and the cause of action sued upon," citing Fischbarg v. Doucet (38 AD3d 270).In reply, defendant maintains that Mr. DaBieri is an independent contractor who does nothing more than "coordinate educational and sales training courses" for Euphora in New York (see June 8, 2007 Reply Affidavit of President, Elizabeth Bewley, para 6). According to defendant, the "mere solicitation" of business in New York is insufficient to confer "long arm" jurisdiction over the foreign defendant.

Here, plaintiff's only alleged basis for jurisdiction over Eufora is CPLR 302(a)(1), which provides: "(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent: (1) transacts any business within the state or contracts anywhere to supply goods or services in the state". Long regarded as a "single act statute," it is well established that even a single transaction of business in New York is sufficient to confer jurisdiction over a foreign defendant which never physically enters the State, but only if its activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted (Kreutter v. McFadden Oil Corp., 71 NY2d 460, 467). Thus, it is "purposeful activity in...connection with the matter in suit" that is crucial under CPLR 302(a)(1) (Longines-Wittnauer Watch Co. v. Barnes & Reinecke, 15 NY2d 443, 457, cert denied sub nom Estwing Mfg Co, Inc. v. Singer, 382 US 905; see Ferrante Equip. Co. v. Lasker-Goldman Corp., 26 NY2d 280; cf. Parke-Bernet Galleries v. Franklyn, 26 NY2d 13, wherein defendant actively projected himself into New York by bidding over the telephone during an auction).

In this case, the absence of sufficient detail regarding e.g., defendant's business relationship with Mr. DaBieri, the nature of its "training courses" in New York, the manner in which plaintiff became defendant's distributor, the presence or absence of other New York distributors, and the extent of the revenue generated by New York sales prevent this Court from making an informed decision on whether or not Eufora is subject to personal jurisdiction in New York under CPLR 302(a)(1). While neither defendant's faxing into New York of an unsigned copy of its Distributorship Agreement, nor the limited number of telephone calls it purportedly made to plaintiff is sufficient, standing alone, to constitute the purposeful transaction of business in New York (see Kimco Exch Place Corp. v. Thomas Benz, Inc., 34 AD3d 433, 434; Milliken v. Holst, 205 AD2d 508; J.E.T. Adv. Assocs. v. Lawn King, 84 AD2d 744), the question of whether the sum total of defendant's activities in New York are "purposeful" for purposes of CPLR 302(a)(1), and whether the claim asserted bears a "substantial relationship" to those activities (see Sung Hwan Co. Ltd. v. Rite Aid Corp, 7 NY3d 78) cannot be determined without a hearing. [*3]

Accordingly, it is

ORDERED, that the question of whether Euphora's activities in New York are sufficient to subject it to personal jurisdiction in this action under CPLR 302(a)(1) is referred to Vincent Pizzuto, Judicial Hearing Officer, to hear and report, with recommendations; and it is further

ORDERED, that the Judicial Hearing Officer shall file his report and recommendations with all due diligence; and it is further

ORDERED, that if trial of the issue hereby referred is not begun within 60 days from the date of this order, or before such later date as the Judicial Hearing Officer may fix upon good cause shown, this order shall be cancelled and revoked, shall be remitted by the Judicial Hearing Officer to the court from which it was issued, and the matter hereby referred shall immediately be returned to the court for trial of those issues (22 NYCRR §202.43[d]); and it is further

ORDERED, that the matter be held in abeyance pending receipt of the report and recommendations of the Judicial Hearing Officer on the above question and a motion pursuant to CPLR 4403.E N T E R,

Dated:September 24, 2007s/ Philip G. Minardo

J.S.C.