The following e-filed documents, listed by NYSCEF document number (Motion 1) 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25 were read on this motion to/for DISMISS.

Upon the foregoing documents, the Decision and Order of this Court is as follows:

Defendants, Thomas Mclean and Deborah A. Rohulich (hereinafter, referred to collectively as "moving defendants"), move by pre-answer motion seeking an order dismissing the complaint pursuant to CPLR §§3211(a)(1) and (8) on the grounds that this Court lacks personal jurisdiction over the moving defendants, or in the alternative, pursuant to CPLR §306(b) for failure to timely serve the complaint. Plaintiff opposes the motion and argues that the motion is premature as to the issue of personal jurisdiction and further that there is an issue [*2]as to whether service was properly effectuated on the moving defendants.

The moving defendants argue that the Court lacks jurisdiction over them based on the allegations contained in the complaint. In support of the motion, defendants submit an affirmation signed by both moving defendants. The moving defendants' affirmation sets forth that they maintain residences in Pennsylvania and Florida, that the alleged slip and fall that forms the basis of this lawsuit took place in Pennsylvania, and that there is no connection between moving defendants and New York. Moving defendants also submit copies of each of their drivers' licenses and their joint tax return as evidence of their domicile in Pennsylvania. Moving defendants contend that based on these facts, which are also alleged in the complaint, the Court does not have personal jurisdiction over the moving defendants. Moving defendants also contend that the complaint should be dismissed because plaintiff failed to properly serve the summons and complaint on any of the defendants within 120 days of filing in violation of CPLR §306(b).

In opposition, plaintiff argues that the motion is premature because plaintiff has not been afforded an opportunity to conduct discovery. Plaintiff argues that the number and extent of other business transactions that defendants have had with other residents of the State of New York is relevant and necessary discovery regarding the issue of personal jurisdiction. Plaintiff further contends that because the moving defendants' affirmation fails to set forth any information regarding said issue, the motion is defective. Plaintiff also submits plaintiff's own affirmaiton (the "Morales affirmation"). The Morales affirmation explains that Morales and several of his family and friends, rented a property in Pennsylvania owned by moving defendants for a rental period of May 28, 2021 through May 31, 2021. Morales alleges that while on the property during that time, he was injured as a result of a slip and fall. Morales further explains that both he and the moving defendants used the services of defendants, Homeaway.com Inc. and Vrbo Holdings Inc., to communicate with each other regarding the terms of the rental agreement. Plaintiff contends that the element of transacting business within the state was satisfied when the moving defendants entered into the rental transaction and further that his injuries arise from that transaction because it occurred on the subject rental property. Plaintiff posits that this one transaction is sufficient to confer long arm jurisdiction over the moving defendants. Regarding service, plaintiff alleges that service was effectuated upon the moving defendants at nine different residential addresses in both Pennsylvania and Florida, including the address reflected on the moving defendants' drivers' licenses. Plaintiff also alleges that defendant VRBO was properly served and further that movant's counsel does not represent VRBO. Plaintiff argues that the affidavits from plaintiff's process servers establish plaintiff's prima facie showing of proper service.

When a court reviews a motion to dismiss under CPLR §3211, it must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory (Mercedes v. Cool Wind Ventilation Corp., 223 AD3d 623, 624 [1st Dep't., 2024]). Dismissal of a complaint pursuant to CPLR §3211(a)(1) is warranted where the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (150 Broadway NY Assocs., L.P. v. Bodner, 14 AD3d 1, 784 N.Y.S.2d 63, 65 [1st Dep't., 2004]). To qualify as "documentary," the paper's content must be, "essentially [*3]undeniable and ..., assuming the verity of [the paper] and the validity of its execution, will itself support the ground on which the motion is based" (Amsterdam Hosp. Grp., LLC v. Marshall-Alan Assocs., Inc., 120 AD3d 431, 432 [1st Dep't., 2014]). The evidence must utterly refute the complaint's factual allegations (DKR Soundshore Oasis Holding Fund Ltd. v. Merril Lynch Intern., 80 AD3d 448, 449-450 [1st Dep't., 2011]).

CPLR §302(a)(1) sets forth that a court may exercise personal jurisdiction over any non-domiciliary who transacts any business within the state. A non-domiciliary transacts business when on his or her own initiative, they project themselves into this state to engage in a sustained and substantial transaction of business, thus, where the non-domiciliary seeks out and initiates contact with New York, solicits business in New York, and establishes a continuing relationship, a non-domiciliary can be said to transact business within the meaning of CPLR §302(a)(1)(Paterno v. Laser Spine Inst., 24 NY3d 370, 377 [2014]).

The jurisdictional inquiry under CPLR §302(a)(1) is a two-pronged analysis. "[U]nder the first prong the defendant must have conducted sufficient activities to have transacted business in the state, and under the second prong, the claims must arise from the transactions (Bangladesh Bank v. Rizal Com. Banking Corp., 226 AD3d 60, 80 [1st Dep't., 2024]). CPLR §302 is a single-act statute requiring but one transaction—albeit a purposeful transaction—to confer jurisdiction in New York (Parke—Bernet Galleries, Inc. v. Franklyn, 26 NY2d 13, 17 [1970]). To invoke New York's long-arm jurisdiction on the premise of committing a tortious act, the courts have, "traditionally required the defendant's [physical] presence ... [in New York] at the time of the tort (See SOS Cap. v. Recycling Paper Partners of PA, LLC, 220 AD3d 25, 33 (1st Dep't., 2023). Moreover, the situs of the injury for long-arm purposes is where the event giving rise to the injury occurred and not where the resultant damages occurred (Marie v. Altshuler, 30 AD3d 271, 272—73[1st Dep't., 2006]).

The branch of moving defendants' motion seeking dismissal pursuant to CPLR §3211(a)(1) is denied. The affidavit submitted by defendants in support of their motion to dismiss is not documentary evidence and does not conclusively establish a defense to the asserted claims as a matter of law (Lowenstern v. Sherman Square Realty Corp., 143 AD3d 562, 562 [1st Dep't., 2016]).

Notwithstanding the above, the branch of moving defendants' motion seeking dismissal pursuant to CPLR §3211(a)(8) on the basis of lack of personal jurisdiction is granted. Plaintiff fails to meet its burden to assert facts sufficient to warrant a finding of long-arm jurisdiction over the moving defendants (Marie v. Altshuler, 30 AD3d 271, 272, 817 N.Y.S.2d 261 [1st Dep't., 2006]). Although a plaintiff is not required to plead and prove personal jurisdiction in the complaint, where jurisdiction is contested, the ultimate burden of proof rests upon the plaintiff (See O'Brien v. Hackensack Univ. Med. Ctr., 305 AD2d 199, 200 [1st Dep't., 2003]).

Plaintiff's reliance on State v. Vayu, Inc., 39 NY3d 330, 335 [2023] in opposition is misplaced because that case is factually distinguishable from the instant matter. In Vayu, the Court of Appeals reversed the Appellate Division's dismissal of plaintiff's complaint on the basis of lack of personal jurisdiction. The Court found that a two year long prior business relationship, a grant application listing plaintiff and defendant as "partners", multiple phone calls and emails, as well as a physical trip to New York to discuss terms of the deal, were sufficient to establish long-arm jurisdiction over the foreign defendants. Moreover, the Vayu Court specifically noted that Vayu was not a case where plaintiff responded to a website but rather involved an active dialogue between principals based on earlier personal contact, and further, that their communication related to a continuing business relationship between the parties. With the exception of the emails that plaintiff alleges were sent to confirm the details of the rental, none of those elements are met here. There is no evidence to suggest that there was a prior relationship between the parties, no indication that they ever spoke over the phone, and plaintiff does not allege that the moving defendants sought plaintiff out affirmatively in any way.

Indeed, this matter is more analogous to Stern v. Four Points, 133 AD3d 514, 514 [1st Dep't., 2015]. In Stern, plaintiff, while in New York, reserved a hotel room online in Michigan, and was subsequently injured while in that room. Plaintiff commenced a personal injury action in New York, arguing that the Michigan hotel was subject to New York's long-arm jurisdiction. The First Department dismissed the action against the Michigan hotel owners for lack of personal jurisdiction, finding that although the defendants' participation in the website may demonstrate that it transacted business in New York, the relationship between defendants' website activities and plaintiff's negligence action arising from an allegedly defective condition of premises in another state is too remote to support the exercise of long-arm or specific jurisdiction under CPLR §302(a)(1).

Similarly, in Peldman v. Kalahari Resorts, LLC, 208 AD3d 1107, 1107 [1st Dep't., 2022], the Court found that defendants' operation and maintenance of an interactive website through which plaintiff purchased a room at their facility was too remote to support the exercise of long-arm or specific jurisdiction over them as a result of a condition on the premises.

Here, the Court finds that the moving defendants did not invoke the benefits and protections ofNew York's laws under CPLR §302(a)(1), as their activities alleged in the complaint were insufficient to demonstrate that they purposefully availed themselves of the privilege of conducting business in New York. Even assuming arguendo that the moving defendants' participation in the co-defendant's website amounts to transacting business, said business transaction is too remote from plaintiff's personal injury action. Moreover, although there was a contract to provide plaintiff services, there is no merit in the argument that a breach of a contract constitutes a tortious act and may form a basis for long-arm jurisdiction (Amigo Foods Corp. v. Marine Midland Bank-New York, 39 NY2d 391, 396 [1976]).

In light of the above, the branch of moving defendants' motion regarding service of the complaint is denied as moot. Additionally, the Court notes that while the moving defendants and plaintiff have set forth arguments regarding parties that have not appeared in this action, no properly noticed motion has been made on behalf of said parties therefore the Court will not address said arguments.

Based on the foregoing, it is hereby,

ORDERED, that the motion to dismiss on the basis of lack of personal jurisdiction by defendants, Thomas Mclean and Deborah A. Rohulich's, is granted to the extent that this matter is dismissed as to those defendants only, and is otherwise denied; and it is further,

ORDERED, that moving defendants serve a copy of this order with Notice of Entry on all parties within 30 days of the entry date hereof.

This constitutes the Decision and Order of the Court.