The following papers numbered 1 to 8 were read on the motion (seq. no. 1) by plaintiff Old Slip Benefits & Insurance Services, LLC ("plaintiff") pursuant to CPLR §§ 6301 and 6311 for an Order preliminarily enjoining defendant Allstate Insurance Company ("Allstate") from terminating the Exclusive Agency Agreement entered into by plaintiff and Allstate and dated March 1, 2024 (the "Contract") pending a full determination of the merits of this action:

The following papers numbered 1 to 6 were read on the motion (seq. no. 5) by defendant Marc Stevenson ("Stevenson") pursuant to CPLR § 3211(a)(8) for an Order dismissing the Amended Complaint against him:

Papers       & nbsp;   Numbered
Notice of Motion 1
Affirmation in Support 2
Memorandum of Law in Support 3
Affirmation and Exhibit in Opposition 4
Memorandum of Law in Opposition 5
Memorandum of Law in Reply 6

The following papers numbered 1 to 4 were read on the motion (seq. no. 6) by defendants Allstate, Regine Marie Napoleon ("Napoleon"), Brittany Cleere ("Cleere") and Allison Ann McMahon ("McMahon") pursuant to CPLR § 3211(a)(7) for an Order partially dismissing the Amended Complaint against them:

This action was commenced on September 12, 2024, and arises from a dispute concerning Allstate's termination of the Contract. See NYSCEF Doc. Nos. 1, 31. In particular, the Amended Complaint alleges that plaintiff, which is a financial services and investment advisory business, entered into the Contract so as to operate a franchised insurance agency for Allstate in White Plains. See NYSCEF Doc. No. 31 at ¶¶ 1-47. It alleges that plaintiff's principal, James Lukezic ("Lukezic"), made clear to Allstate that the franchised agency would solely be offering insurance products, while plaintiff continued to separately operate its financial services business. Id. The Amended Complaint alleges that during contract negotiations, Lukezic expressed his understanding of the contemplated business arrangement to Stevenson, Napoleon, Cleere, and McMahon, who are Allstate employees. Id.

The Amended Complaint sets forth two principal allegations that underly plaintiff's lawsuit. Id. First, the chief allegation underlying six of plaintiff's seven causes of action is that Allstate terminated the Contract unlawfully and/or in bad faith by a termination letter dated June 25, 2024 (the "Termination Letter"). Id. Second, plaintiff's third cause of action alleges that in any event, the Contract was an illegal franchise agreement such that it constituted an unlawful [*2]sale of a franchise in violation of the New York Franchise Sales Act. Id. Based upon the foregoing general allegations, the Amended Complaint asserts: (1) a first cause of action for breach of contract against Allstate; (2) a second cause of action for breach of the implied covenant of good faith and fair dealing against Allstate; (3) a third cause of action for violation of the New York Franchise Sales Act against all defendants; (4) a fourth cause of action for unconscionability against Allstate; (5) a fifth cause of action for reformation against Allstate; (6) a sixth cause of action for equitable estoppel against Allstate; and (7) a seventh cause of action for tortious interference with contract against Napoleon and McMahon. Id. at ¶¶ 48-85.

Regarding the principal allegation that Allstate sought to terminate the Contract unlawfully and/or in bad faith by way of the Termination Letter, plaintiff on September 12, 2024 moved (seq. no. 1) pursuant to CPLR §§ 6301 and 6311 for a temporary restraining order and a preliminary injunction enjoining Allstate from terminating the Contract pending a determination of the merits of this lawsuit. See NYSCEF Doc. Nos. 2-7. By Order to Show Cause dated September 19, 2024, the Court granted plaintiff a temporary restraining order preventing Allstate from carrying out the termination of the Contract pending a determination on plaintiff's underlying motion for preliminary injunctive relief. See NYSCEF Doc. No. 16. Allstate opposes plaintiff's motion, arguing that the Contract may be terminated without cause and that Allstate acted in accordance therewith in furnishing the Termination Letter, such that plaintiff is not entitled to preliminary injunctive relief prolonging a lawfully terminated business relationship. See NYSCEF Doc. Nos. 20-24.

Thereafter, on November 4, 2024, Stevenson moved (seq. no. 5) pursuant to CPLR § 3211(a)(8) for an Order dismissing the Amended Complaint against him on the ground that the Court lacks personal jurisdiction over him. See NYSCEF Doc. Nos. 45-47. Stevenson contends that he is a Virginia resident who works for Allstate from his residence; that he has never travelled to New York for business purposes nor conducted any business activities in New York; and that he was improperly sued herein due to his limited phone and email correspondence with Lukezic after plaintiff had been approved as an Allstate agent. Id. Plaintiff opposes Stevenson's motion, arguing that Stevenson transacted business in New York in connection with the Contract. See NYSCEF Doc. Nos. 51-53.

On November 12, 2024, Allstate, Napoleon, Cleere, and McMahon separately moved (seq. no. 6) pursuant to CPLR § 3211(a)(7) for an Order partially dismissing the Amended Complaint against them. See NYSCEF Doc. Nos. 49-50. Their joint motion seeks dismissal of all claims as against Napoleon, Cleere, and McMahon as well as dismissal of all claims against Allstate except for the third cause of action alleging Allstate's violation of the New York Franchise Sales Act. Id. It is grounded in the principal argument that because the Contract may be terminated without cause and Allstate acted entirely in accordance with the Contract in furnishing the Termination Letter, there is no valid basis for any related liability as against Allstate or any individual defendant herein. Id. Plaintiff opposes the motion, contending that Allstate unlawfully terminated the Contract in a bad faith effort to deprive plaintiff of the benefit of its bargain, and that the Contract was nonetheless an illegal franchise agreement such that defendants should be held liable in connection with same. See NYSCEF Doc. No. 64.

Accordingly, presently before the Court are three motions, i.e., plaintiff's motion for a preliminary injunction and defendants' two separate motions to dismiss the Amended Complaint. The Court addresses the three motions in reverse chronological order below.

Regarding the motion (seq. no. 6) of Allstate, Napoleon, Cleere and McMahon seeking to partially dismiss the Amended Complaint against them pursuant to CPLR § 3211(a)(7), it is well-settled that "the complaint must be liberally construed, giving the plaintiff the benefit of every favorable inference." Cunningham v Nolte, 188 AD3d 806, 807 (2d Dept 2020), citing Leon v Martinez, 84 NY2d 83, 87-88 (1994). "Such a motion should be granted only where, even viewing the allegations as true, the plaintiff still cannot establish a cause of action." Cunningham, 188 AD3d at 807, citing Hartman v Morganstern, 28 AD3d 423, 424 (2d Dept 2006). "The motion must be denied if from the pleadings' four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law." 511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 (2002).

Plaintiff's first cause of action for breach of contract ^[FN1] is grounded in the allegation that Allstate materially breached the Contract through the Termination Letter, which unlawfully terminated the Contract based upon the false claim that plaintiff had been engaged in "unauthorized brokering." See NYSCEF Doc. No. 31 at ¶¶ 48-53. The Termination Letter is dated June 25, 2024, and provides plaintiff with notice that effective September 30, 2024, the Contract is being terminated pursuant to Section XVII(B)(2) of the Contract. See NYSCEF Doc. No. 7. It further states that "Allstate is taking this action for reasons that include [plaintiff] maintaining an outside business interest which creates a conflict of interest and unauthorized brokering." Id.

Article XVII(B) of the Contract unambiguously states as follows:

This Agreement may be terminated:

1. At any time by mutual agreement of the parties in writing;

2. By either party, with or without cause, upon providing ninety (90) days prior written notice to the other, or such greater number of days as is required by law. Once written notice of termination has been given by either party, Agency will, immediately upon request of the Company, cease to act or to represent itself in any way as an agent or representative of the Company, but it will receive compensation pursuant to Section XV from the Company for the period up to and including the specified termination date; or

3. Alternatively, by the Company, with cause, immediately upon providing written notice to Agency. Cause may include, but is not limited to, breach of this Agreement, fraud, forgery, misrepresentation or conviction of a crime. The list of examples of cause just stated shall not be construed to exclude any other possible ground as cause for termination.

See NYSCEF Doc. No. 6.

As such, the Contract's plain terms provide that either party may terminate the agreement "with or without cause" on 90 days' written notice pursuant to Section XVII(B)(2), and that Allstate separately has the right to terminate "with cause" pursuant to Section XVII(B)(3). Id.

The Court agrees with Allstate that because the Termination Letter unambiguously cites [*3]Section XVII(B)(2) of the Contract and provides 90 days' written notice of termination, Allstate acted in accordance with the Contract's plain terms in terminating the Contract and therefore did not materially breach the Contract in the Termination Letter. As noted above, Section XVII(B)(2) allows either party the unfettered right to terminate "with or without cause." Accordingly, Allstate's references in the Termination letter to plaintiff's maintenance of an "outside business interest" and "unauthorized brokering" are effectively irrelevant, as Allstate was lawfully permitted to terminate the Contract without cause where, as here, it made such termination effective upon at least 90 days' written notice, i.e., from June 25, 2024 to September 30, 2024. Therefore, plaintiff's first cause of action, which hinges upon the central allegation that Allstate materially breached the Contract through the Termination Letter, should be dismissed pursuant to CPLR § 3211(a)(7).

A federal case that involves Allstate as a defendant and the very same contractual language at issue herein is instructive. In Rahman v Allstate Ins. Co., 644 F. Supp. 3d 231, 237 (E.D.L.A. 2022), the United States District Court for the Eastern District of Louisiana addressed Allstate's motion to dismiss a breach of contract claim against it where, as here, the operative contract "states that the Agreement may be terminated 'by either party, with or without cause, upon providing ninety (90) days prior written notice to the other." See Rahman v Allstate Ins. Co., 644 F. Supp. 3d 231, 237 (E.D.L.A. 2022). In Rahman, the Court held that because Allstate had strictly complied with the contract's terms in terminating the agreement upon 90 days' written notice, it did not materially breach the contract, and such claim was dismissed. It stated: "The EA Agreement states that the Agreement may be terminated '[b]y either party, with or without cause, upon providing ninety (90) days prior written notice to the other . . . .' The Amended Complaint states that on March 25, 2021, Allstate's District Sales Leader notified Plaintiff by letter that the EA Agreement was being terminated effective June 30, 2021. This notification, made by written notice and over ninety days before the effective date of termination, is in compliance with the EA Agreement. Thus, Allstate did not breach the EA Agreement when it terminated Plaintiff, and Plaintiff has not sufficiently pleaded his breach of contract claim. See Rahman, 644 F. Supp. 3d at 237 (internal citations omitted and emphasis added).

As in Rahman, plaintiff's breach of contract claim is fatally undercut by the fact that the Termination Letter was provided in strict accordance with Section XVII(B)(2), such that Allstate did not materially breach the Contract. Therefore, plaintiff's first cause of action is dismissed pursuant to CPLR § 3211(a)(7). This holding is consistent with the Appellate Division's determination in Baldo v Patton, 65 AD3d 765, 766-767 (3d Dept 2009), in which the Court stated that the "Supreme Court properly held that the agreement was not ambiguous and permitted defendants to terminate the agreement with 90 days notice." The Court further noted that "[t]he agreement here states that 'if for any reason termination is required' such termination can be effected by presenting written confirmation 'to either party' within the stated time frame. The next sentence provides for a prorated return of plaintiff's deposit if the agreement is terminated within the first five years. The agreement does not specifically require cause for termination. Thus, the agreement's plain language permits either party to terminate the agreement 'for any reason' (i.e., without cause) by simply providing 90 days notice of termination and defendants returning a portion of plaintiff's deposit." See Baldo, 65 AD3d at 766-767; see also Matter of Chang v Department of Educ. of the City of New York, 137 AD3d 597, 597 (1st Dept 2016) (affirming the dismissal of a breach of contract claim and finding that [*4]"[t]he court properly found that the agreement with petitioner afforded respondents the unconditional right to terminate the contract without cause and that such termination clauses are enforceable"); Red Apple Child Dev. Ctr. v Cmty. Sch. Dists. Two, 303 AD2d 156, 157 (1st Dept 2003) (stating that "[i]t is a well-established principle of law that when a contract affords a party the unqualified right to limit its life by notice of termination that right is absolute and will be upheld in accordance with its clear and unambiguous terms").

However, the Court will not dismiss plaintiff's second cause of action for breach of the implied covenant of good faith and fair dealing.^[FN2] This claim is premised upon the separate legal theory that, regardless of whether Allstate technically and/or facially complied with the Contract's terms through the Termination Letter, Allstate breached the implied covenant of good faith and fair dealing because it used a contractual right in a bad faith effort to deprive plaintiff of the benefit of the parties' bargain, causing plaintiff to incur substantial monetary harm. See NYSCEF Doc. No. 31 at ¶¶ 54-61.

Without opining as to whether plaintiff may ultimately succeed on the merits of its second cause of action, the Court agrees with plaintiff that "[e]ven if a party is not in breach of its express contractual obligations, it may be in breach of the implied covenant of good faith and fair dealing when it exercises a contractual right as part of a scheme to deprive the other party of the benefit of its bargain." See JLO Dev. Corp. v Amalgamated Bank, 232 AD3d 705, 705 (2d Dept 2024), citing Ahmed Elkoulily, M.D., P.C. v New York State Catholic Healthplan, Inc., 153 AD3d 768, 770 (2d Dept 2017). In JLO Dev. Corp., the Court held that a claim for breach of the implied covenant of good faith and fair dealing was not subject to CPLR § 3211 dismissal where "the defendant could terminate the consulting agreement upon 90 days' prior written notice," emphasizing that "the defendant still had an obligation to exercise good faith." See JLO Dev. Corp., 232 AD3d at 705. The Court further explained: "While the duties of good faith and fair dealing do not imply obligations inconsistent with other terms of the contractual relationship, they do encompass any promises which a reasonable person in the position of the promisee would be justified in understanding were included . . . Technically complying with the terms of a contract while depriving the plaintiff of the benefit of the bargain may constitute a breach of the covenant of good faith and fair dealing . . . Even an explicitly discretionary contract right may not be exercised in bad faith so as to frustrate the other party's right to the benefit under the agreement." Id. (emphases added).

Therefore, because the Amended Complaint alleges that Allstate acted in bad faith in sending the Termination Letter as an improper means of depriving plaintiff of the benefits to which it is entitled under the Contract, plaintiff has stated a valid claim for breach of the implied covenant of good faith and fair dealing, which second cause of action shall not be dismissed herein. See JLO Dev. Corp., 2024 NY. App. Div. LEXIS 5880 at **4-5; see also Ahmed Elkoulily, M.D., 153 AD3d at 770-771 (reversing the dismissal of a claim premised upon breach of the implied covenant of good faith and fair dealing and holding that "[a]lthough pursuant to [*5]its terms, Fidelis could terminate the agreement . . . in its sole discretion . . . Fidelis had an implied obligation to exercise good faith in reaching its determination"); Richbell Info. Servs. v Jupiter Partners, L.P., 309 AD2d 288, 302 (1st Dept 2003) (stating that the implied covenant of good faith and fair dealing serves as a "limitation on an apparently unfettered contract right [that] may be grounded either on the construction of the parties' fiduciary obligations or on the purely contractual rule that even an explicitly discretionary contract right may not be exercised in bad faith so as to frustrate the other party's right to the benefit under the agreement") (internal citations omitted).

With respect to plaintiff's fourth, fifth and sixth causes of action against Allstate, which read as alternative claims and/or legal theories underlying the dismissed first cause of action, the Court agrees with Allstate that such claims are also subject to dismissal pursuant to CPLR § 3211(a)(7). See NYSCEF Doc. No. 31 at ¶¶ 67-79. The fourth cause of action is styled as a claim for unconscionability. Id. at ¶¶ 67-72. This is a defense, and not a valid cause of action under New York law, such that it is dismissed pursuant to CPLR § 3211(a)(7). See Bevilacque v Ford Motor Co., 125 AD2d 516, 519 (2d Dept 1986) (stating that unconscionability "does not create a new cause of action to recover damages or to enforce a contract but, rather, provides a defense for a party opposing enforcement of a contract or a cause of action for rescission of a contract. Thus, the plaintiffs' causes of action founded upon unconscionability do not set forth cognizable claims and should have been dismissed"); see also Fortune Limousine Serv., Inc. v Nextel Communications, 35 AD3d 350, 354 (2d Dept 2006) (holding that "[t]he third cause of action seeking affirmative relief on the ground of unconscionable contract terms must also be dismissed as the doctrine of unconscionability is to be used as a shield, not a sword, and may not be used as a basis for affirmative recovery"); Avildsen v Prystay, 171 AD2d 13, 16 (1st Dept 1991) (affirming the dismissal of a cause of action sounding in unconscionability and noting that this doctrine "may not be used as a basis for affirmative recovery").

The fifth cause of action, which seeks reformation of the Contract, is also dismissed pursuant to CPLR § 3211(a)(7) because it fails to allege that the Contract was executed under mutual mistake or unilateral mistake coupled with fraud. See NYSCEF Doc. No. 31 at ¶¶ 73-76; see also Timber Rattlesnake, LLC v Devine, 117 AD3d 1291, 1292 (3d Dept 2014) (noting that "[a] party seeking reformation must establish . . . that the writing in question was executed under mutual mistake or unilateral mistake coupled with fraud"). Plaintiff's self-serving allegation that it "was under the mistaken impression that this was a long-term relationship that could only be terminated if it breached its obligations" is insufficient for these purposes, as the Amended Complaint wholly fails to allege the essential elements of fraud that must be coupled with unilateral mistake, i.e., what did Allstate purportedly misrepresent, why were its statements false and material, and were they made knowingly? See Barclay Arms, Inc. v Barclay Arms Assocs., 74 NY2d 644, 646-647 (1989) (stating that "[a] bare claim of unilateral mistake by plaintiff, unsupported by legally sufficient allegations of fraud on the part of defendants, does not state a cause of action for reformation" and dismissing a reformation claim where "[t]he complaint did not allege the essential elements of a fraud claim, misrepresentation of a material fact, falsity, scienter and deception"); Aventine Inv. Mgmt., Inc. v Canadian Imperial Bank of Commerce, 265 AD2d 513, 514 (2d Dept 1999) (noting that "[o]ne who enters into a plain and unambiguous contract cannot avoid the obligation by merely stating that he erred in understanding its terms"); Touloumis v Chalem, 156 AD2d 230, 233 (1st Dept 1989) (dismissing a reformation claim where the plaintiff failed to "allege every material element of fraud").

Plaintiff's sixth cause of action for equitable estoppel is also dismissed pursuant to CPLR § 3211(a)(7) given that Section XVII(B) of the Contract unambiguously allows for termination thereof by either party "without cause." See NYSCEF Doc. No. 6; NYSCEF Doc. No. 31 at ¶¶ 77-79; see also Supply & Bldg. Co. v Estee Lauder Int'l, Inc., 1999 U.S. Dist. LEXIS 3978, *11 (S.D.NY Mar. 31, 1999) (finding that equitable estoppel is unavailable where "the Agreement contains an explicit termination clause that expressly provides for termination without cause"). The Court credits Allstate's argument that this principle is particularly applicable here because the Contract contains an integration clause stating that it represents "the sole and entire agency agreement" between the parties, and "supersedes any prior oral statements and representations" as well as "any prior written statements" by Allstate. See NYSCEF Doc. No. 6 at Art. I(B). In light of this unambiguous contractual language, plaintiff cannot claim equitable estoppel based upon reliance upon any alleged behavior by Allstate suggesting that the parties' relationship was meant to be interminable. See Presler v Domestic & Foreign Missionary Socy. of the Prot. Episcopal Church in the United States of Am., 113 AD3d 409, 409 (1st Dept 2014) (holding that "reliance on alleged oral assurances" is unavailable to a plaintiff where the written contract allowed for termination "without cause"); Hobler v Hussain, 111 AD3d 1006, 1007 (3d Dept 2013) (finding that the plaintiff could not have reasonably relied upon any alleged oral assurances where the contract could be terminated "without cause" and "contained an integration clause providing that it represented 'the entire agreement between the parties with respect to the subject matter hereof, and no amendment, change or modification shall be effective unless in writing and signed by the parties hereto'").

Turning to the branches of this motion concerning the individual defendants, the Court agrees with defendants that the third cause of action for violation of the New York Franchise Sales Act ^[FN3] should be dismissed pursuant to CPLR § 3211(a)(7) against Napoleon, Cleere, and McMahon. Although plaintiff has stated a valid claim against Allstate — which did not move to dismiss the third cause of action — dismissal of this claim is warranted against the individual defendants where, as here, plaintiff has not "sufficiently pleaded facts showing that the nonfranchisor defendants materially aided" Allstate's alleged violation of the statute. See A.J. Temple Marble & Tile v Union Carbide Marble Care, 87 NY2d 574, 584 (1996); see also NY Gen. Bus. Law §§ 680-695. Indeed, the third cause of action only mentions the individual defendants in one terse and conclusory sentence, alleging that they "personally participated" in Allstate's statutory violation. See NYSCEF Doc. No. 31 at ¶¶ 62-66. This is wholly insufficient for purposes of stating a claim for violation of the New York Franchise Sales Act against Napoleon, Cleere, and McMahon. As such, the third cause of action is dismissed against these individual defendants pursuant to CPLR § 3211(a)(7). See A.J. Temple, 87 AD2d at 584 (holding that alleging that an individual defendant violated the Act by "participat[ing] in and direct[ing] the unlawful conduct" of a franchisor is not "a sufficient factual allegation that his actions materially aided the franchisor's violations"); see also Coraud LLC v Kidville Franchise Co., LLC, 109 F. Supp.3d 615, 623 (S.D.NY 2015) (finding that allegations of "general, run-of-[*6]the-mill interaction with a potential franchisee" are "insufficient" to hold individual defendants liable for "materially aid[ing]" a corporate defendant in violating the New York Franchise Sales Act).

Plaintiff's seventh cause of action for tortious interference with contract ^[FN4] is grounded in the allegation that Napoleon and McMahon tortiously interfered with plaintiff and Allstate's business relationship by causing their employer, Allstate, to materially breach the Contract. See NYSCEF Doc. No. 31 at ¶¶ 80-85. In light of the Court's determination herein that Allstate did not materially breach the Contract via the Termination Letter, plaintiff cannot show that the underlying Contract was breached. As such, this claim must be dismissed pursuant to CPLR § 3211(a)(7). See Jack L. Inselman & Co. v FNB Financial Co., 41 NY2d 1078, 1080 (1977) (noting that "[i]n order for the plaintiff to have a cause of action for tortious interference of contract, it is axiomatic that there must be a breach of that contract by the other party, a situation not here present") (internal citations omitted); Jaffe v Paramount Communs., 222 AD2d 17, 24 (1st Dept 1996) (holding that "[s]ince plaintiff failed to state a cause of action for breach of contract against [corporate defendant], the tortious interference claims against [individual defendants] were also properly dismissed").

Furthermore, even if plaintiff's breach of contract claim had survived this motion, the seventh cause of action would nonetheless be subject to dismissal because Napoleon and McMahon are Allstate employees acting within the scope of their employment in connection with the Contract between Allstate and plaintiff. See Citicorp Retail Services, Inc. v Wellington Mercantile Services, Inc., 90 AD2d 532, 532 (2d Dept 1982) (holding that "[o]fficers, directors or employees of a corporation do not become liable to one who has contracted with the corporation for inducing the corporation to breach its contract merely because they have made decisions and taken actions that resulted in the corporation's breaching its contract"); see also Presler v Domestic & Foreign Missionary Socy. of the Prot. Episcopal Church in the United States of Am., 113 AD3d 409, 410 (1st Dept 2014) (finding that individual defendants who "were acting in the scope of their employment" cannot be held liable for tortiously interfering with plaintiff's contract). Therefore, the seventh cause of action is dismissed pursuant to CPLR § 3211(a)(7).

Accordingly, for the reasons stated above, defendants' motion (seq. no. 6) to partially dismiss the Amended Complaint pursuant to CPLR § 3211(a)(7) is granted in part and denied in part, such that Napoleon, Cleere and McMahon are dismissed from this action, and only the second and third causes of action remain as against Allstate.

The procedural basis for Stevenson's motion to dismiss the action against him due to lack of personal jurisdiction is CPLR § 3211(a)(8), which provides for dismissal of a pleading where "the court has not jurisdiction of the person of the defendant." See CPLR § 3211(a)(8). To [*7]defeat a motion to dismiss for lack of personal jurisdiction, a plaintiff must "make a prima facie showing that personal jurisdiction exists." Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243 (2d Dept 2005); accord Chen v Lu, 144 AD3d 735, 736-737 (2d Dept 2016) (holding that "the Supreme Court properly granted that branch of the defendant's cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction").

It is well-settled that "where a motion is made to dismiss a complaint for lack of personal jurisdiction, it is the plaintiff who bears the 'ultimate burden of proof' to prove a basis for such jurisdiction." Paterno v Laser Spine Inst., 112 AD3d 34, 39 (2d Dept 2013). However, "such a motion can be successfully opposed by a prima facie showing that the defendants were subject to the personal jurisdiction of the court." Paterno, 112 AD3d at 39, quoting Daniel B. Katz & Assoc. Corp. v Midland Rushmore, LLC, 90 AD3d 977, 978 (2d Dept 2011). In order to meet that burden of proving that there exists a basis for personal jurisdiction over a non-resident defendant, a plaintiff must expressly allege facts in the complaint that bring such defendant within the parameters of CPLR 301 or 302, and must allege facts that comport with the constitutional limits of due process. See LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210, 213-214 (2000); Repwest Ins. Co. v Country-Wide Ins. Co., 166 AD3d 61, 64 (1st Dept 2018); Deutsche Bank AG v Vik, 163 AD3d 414, 415 (1st Dept 2018).

The Amended Complaint acknowledges that Stevenson resides and is domiciled in Virginia, and alleges in cursory fashion that he is an Allstate employee who "actively participated in the sale of the Allstate insurance franchise agreement to Plaintiff." See NYSCEF Doc. No. 31 at ¶ 6. The pleading otherwise only references Stevenson twice, conclusorily alleging that Stevenson, Napoleon, Cleere, and McMahon together "actively participated" in "the sales and recruitment process" such that those four defendants should be held personally liable in connection with the third cause of action for violation of the New York Franchise Sales Act. Id. at ¶¶ 31, 66.

In contrast to the conclusory and terse allegations regarding Stevenson in the Amended Complaint, Stevenson's affirmation sets forth detailed averments concerning his involvement with plaintiff and the Contract. See NYSCEF Doc. No. 47. Specifically, Stevenson avers that he is an Allstate employee who resides and works in Virginia and that he had no involvement with the Contract, i.e., he did not draft it nor was he a party to it. Id. Stevenson avers that in his role as a Candidate Concierge, he never participated in any discussions about Allstate's exclusive agency opportunity for plaintiff or about the parties' respective decisions to enter into the Contract. Id. Stevenson further avers that he is not responsible for the New York market from a deployment or sales perspective, and that his role with Allstate has never involved conducting any business in New York or traveling there for business purposes. Id. Indeed, Stevenson avers that he last visited New York as a tourist over 25 years ago. Id. Stevenson avers that he first corresponded with Lukezic on December 4, 2023 after plaintiff had been approved as an exclusive Allstate agency, and Stevenson thereafter corresponded by telephone and email with Lukezic solely regarding the onboarding process in which Stevenson sent Lukezic materials, inter alia, to complete plaintiff's enrollment for insurance coverage and to provide links to training materials. Id.

In opposition, plaintiff furnishes an affirmation from Lukezic in which he avers, without substantiation, that Stevenson "was the dominant and integral force responsible for every aspect of the sales process." See NYSCEF Doc. No. 52. Moreover, the email documents annexed to Lukezic's affirmation undercut this claim, instead reflecting that Stevenson as Allstate's [*8]Candidate Concierge merely provided logistical support to plaintiff by, inter alia, providing relevant updates and emailing necessary documents for signature, all on behalf of Allstate. See NYSCEF Doc. No. 53.

Having reviewed the parties' submissions, the Court determines that plaintiff has not met its burden of establishing that this Court has personal jurisdiction over Stevenson under either CPLR §§ 301 or 302. Indeed, the Record demonstrates that Stevenson lives and works in Virginia, and his limited email and telephone contacts with Lukezic were all made solely on behalf of Stevenson's employer, Allstate, after it had approved plaintiff to become an exclusive Allstate agency. See NYSCEF Doc. Nos. 31, 47, 52, 53. Stevenson's contacts with Lukezic were made entirely in Stevenson's role as an Allstate employee, and were not in his personal capacity. Id. Moreover, the interactions between Stevenson and Lukezic in no manner demonstrate that Stevenson sought out or initiated any business relationship with plaintiff; rather, Stevenson was merely providing logistical support to plaintiff in Stevenson's capacity as Allstate's Candidate Concierge. Id.

As such, these contacts do not constitute the transaction of business in New York, and Stevenson is not subject to general or specific jurisdiction in New York, a State that Stevenson has not even visited in this millennium. See Laufer v Ostrow, 55 NY2d 305, 313 (1982) (stating that "[a]lthough a corporation can act only through an employee or agent, the employee or agent being a live rather than a fictional being can act on behalf of himself or his employer or principal. He does not subject himself, individually, to the CPLR 301 jurisdiction of our courts, however, unless he is doing business in our State individually"); IMAX Corp. v Essel Group, 154 AD3d 464, 465-466 (1st Dept 2017) (holding that the petitioner "failed to establish that New York courts have general jurisdiction over respondent Chandra individually pursuant to CPLR 301" where "the evidence submitted by petitioner demonstrates that Chandra's business activities in New York were undertaken on behalf of a corporate entity"); Pramer S.C.A. v Abaplus Intl. Corp., 76 AD3d 89, 95-96 (1st Dept 2010) (noting that "there are no allegations that [the individual defendant] personally conducted any transaction in New York, notwithstanding his possible corporate affiliation, so jurisdiction cannot be obtained over him as an individual"); L.F. Rothschild, Unterberg, Towbin v McTamney, 89 AD2d 540, 540 (1st Dept 1982) (holding that "[t]he telephone communications defendant had with plaintiff's account executive from outside the State do not constitute sufficient contact with New York to confer personal jurisdiction over a nonresident under CPLR 302").

Moreover, even if Stevenson's actions had constituted transacting business in New York — which they do not — the Court's exercise of personal jurisdiction over him would not comport with federal due process requirements. Given that Stevenson played no role in the negotiation or execution of the Contract, and that his involvement with plaintiff was limited to providing logistical support on behalf of Allstate from Stevenson's residence and place of business in Virginia, it would be unreasonable to require Stevenson to defend against this lawsuit in his personal capacity in New York. See Rushaid v Pictet & Cie, 28 NY3d 316, 330 (2016) (stating that "[i]t is well established that a nondomiciliary must have 'certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice'"), citing International Shoe Co. v Washington, 326 US 310, 316 (1945); Trotman v Priority Auto, Inc., 231 AD3d 1075, 1075 (2d Dept 2024) (affirming the Supreme Court's CPLR § 3211[a][8] dismissal of an action for lack of personal jurisdiction and noting that "[i]n any event, the plaintiff failed to establish that the defendants had the requisite minimum [*9]contacts with New York such that the prospect of defending a suit here comported with traditional notions of fair play and substantial justice, as required by the Federal Due Process Clause").

Accordingly, Stevenson's motion (seq. no. 5) to dismiss the Amended Complaint against him is granted in its entirety pursuant to CPLR § 3211(a)(8).

Although the parties have briefed the elements required for preliminary injunctive relief and appeared for oral argument on January 8, 2025 in connection with plaintiff's motion for a preliminary injunction (seq. no. 1), the Court determines that discovery regarding plaintiff's remaining claims against Allstate is warranted before the Court may render a determination on the merits of plaintiff's motion. In the interim, the temporary restraining order issued in the Order to Show Cause dated September 19, 2024 shall remain in full force and effect pending a determination on the merits of plaintiff's underlying motion. See NYSCEF Doc. No. 16.

The foregoing constitutes the decision and order of the Court.^[FN5]