The instant action was commenced on or about December 10, 2008, by plaintiff Onyx Contracting Services, Inc. d/b/a Onyx Service Construction, Inc. [hereinafter "Onyx"] as subcontractor to defendant Himber & Associates, Inc. and its president Sheldon Himber for a construction project located at 39-41 Lincoln Park, Newark, New Jersey [hereinafter "the project"]. Plaintiff Onyx Contracting is a domestic corporation, where plaintiff Onyx Service Construction is a New Jersey corporation created for this specific construction project at defendants request to obtain certain benefits. Both plaintiffs are authorized to conduct business in New York State and maintain offices at 680 Sharrotts Road in Staten Island, New York.

It is undisputed that on or about June 29, 2006, defendants contracted with the plaintiff to provide certain construction work on the project. The plaintiffs thereafter commenced this action on or about December 10, 2008, seeking reimbursement for monies allegedly due and owing. Presently, plaintiffs are moving to dismiss defendant's affirmative defense of lack of personal jurisdiction. Defendants are cross-moving seeking to dismiss the complaint based upon lack of jurisdiction and/or forum non conveniens.

CPLR § 302 (1)(a) states that personal jurisdiction may be obtained over a non-domiciliary who "transacts any business within the state or contracts anywhere to supply goods or services in the state." The party seeking jurisdiction must prove that the non-domiciliary engaged in some sort of purposeful activity within the state and that the activity is substantially related to the cause of action before the court (Farkas v. Farkas, 36 AD3d 852, 853 [2d. Dept., 2007]; Brandt, 273 AD2d at 430; Armouth Int'l v. Haband Co., 277 AD2d 189, 190 [2d. Dept., 2000]). "Whether a non-domiciliary has engaged in sufficient purposeful activity to confer jurisdiction in New York requires an examination of the totality of the circumstances" (Farkas v. Farkas, 36 AD3d at 853 [finding insufficient long arm jurisdiction where "transacts business" consisted of ministerial communications with mortgagers in New York]).

Here, the plaintiff has made a sufficient showing, at this point in the litigation, that the defendant transacted business' within the state sufficient to warrant long-arm jurisdiction (Bogal v. Finger, 59 AD3d 653, 654-655 [2d Dept., 2009]). It is undisputed that the construction project was in New Jersey, that previous litigation over this project has occurred in New Jersey, that the [*2]defendant is a New Jersey Corporation, and that plaintiff even created its own New Jersey Corporation to secure certain benefits from the State of New Jersey. However, providing plaintiff with every favorable inference possible, this Court finds plaintiff's argument that the contract was negotiated and signed in New York, at this point, tenuously permits long-arm jurisdiction, pursuant to CPLR § 302 (George Reiner & Co. v. Schwartz, 41 NY2d 648, 50 [1977]).

However, defendants also contend that this case should be dismissed pursuant to CPLR § 327, forum non conveniens. It is well settled that New York courts are not compelled to retain jurisdiction over any case which does not have a substantial nexus in New York (Turay v. Beam Bros. Trucking, 61 AD3d 964, 966 [2d Dept., 2009], Silver v. Great Am. Ins. Co., 29 NY2d 356, 361 [NY, 1972]). On a motion to dismiss based upon forum non conveniens, the movant bears the burden of proving that relevant public or private interest factors advocate against litigating the case in New York (Turay, 61 AD3d 964, 966 [2d Dept., 2009]; Stravalle v. Land Cargo, Inc., 39 AD3d 735, 736 [2d. Dept., 2007]; Islamic Rep. of Iran, 62 NY2d at 481). The factors the court should consider include but are not limited to the residency of the parties, the potential hardships of any witnesses, the availability of an alternate forum, the situs of the underlying action, and the burden litigating the matter would place on the New York courts (Id.).

Here, even though plaintiff is a New York resident, the motion to dismiss based upon CPLR § 327 should be granted (Westwood Assocs. v. Deluxe Gen. Inc., 53 NY2d 618 [1981]; Turay v. Beam Brothers Trucking, 61 AD3d 964, 966-967 [2d Dept., 2009][finding New York courts inappropriate even where the plaintiff is a New York resident where all other ties are to North Carolina]; Smolik v. Turner Constr. Co., 48 AD3d 452 [2d Dept., 2008][dismissing the complaint based upon forum non conveniens where all ties were to New Jersey, even though plaintiff was a New York citizen]; Rosenberg v. Stikeman Elliott, 44 AD3d 840 [2d Dept., 2007][holding that where all ties to the accident were in Canada, the fact that the plaintiff is a New York resident does not preclude forum non conveniens dismissal]). It is clear that in this instance the contract was for work performed in New Jersey, multiple depositions (party and nonparty) will need to take place in New Jersey, previous litigation on this matter has been brought in New Jersey - clearly an available alternate forum. Plaintiffs themselves even created a new corporation in New Jersey, just to obtain certain New Jersey benefits. Clearly, there is little evidence to suggest any ties to New York beyond contract negotiation and/or signature and as such, defendant's motion to dismiss based upon CPLR § 327 is granted.Accordingly, it is,

ORDERED that the plaintiff's motion to strike the affirmative defense of lack of

personal jurisdiction is granted, and

ORDERED that the defendant's cross motion for dismissal on the grounds of forum

non conveniens is granted, and it is further

ORDERED that the case is dismissed based upon forum non conveniens, and it is

further

ORDERED that the Clerk enter Judgment accordingly.

ENTER, [*3]

Dated: Sept 10, 2009

Hon. Judith N. McMahon

Justice of the Supreme Court