Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Order to show Cause/ Notice of Motion and

Affidavits /Affirmations annexed 1-2

Answering Affidavits/ Affirmations 3

Reply Affidavits/ Affirmations 4

The Defendant makes this pre-answer motion to dismiss the Complaint pursuant to CPLR 3211(a)(5) and (8). Plaintiff submitted an affirmation in opposition, and the Defendant submitted an affirmation in reply. Argument was heard before the undersigned, and the motion was marked submitted.

The plaintiff DAKOTA DAWKINS (the "Plaintiff") commenced this action for replevin of two pets, or in the alternative, the value of the property. The Plaintiff alleges that following her divorce from the Defendant, the parties entered into an agreement wherein they would share custody of two pet dogs, Nash and Colby. Sometime after the agreement was put into place, the defendant ANTHONY FOLINO (the "Defendant") refused to honor the agreement and has kept both dogs at his residence in New Jersey. The Defendant filed this pre-answer motion to dismiss, arguing that (i) this action may not be maintained due to collateral estoppel and res judicata, and (ii) the Court lacks personal jurisdiction over the Defendant.

Firstly, the Defendant argues that this action is barred by the parties' divorce agreement (the "Separation Agreement"), which is annexed to the Defendant's moving papers. Article XVI of the Separation Agreement speaks to the division of personal property between the parties. Section 2 states that

"any and all property in the [Plaintiff's] possession or held in the [Plaintiff's] sole name [*2]shall be the sole and exclusive property of the [Plaintiff]; the [Defendant] waives any and all right, title, interest or claim to said property . . . [and] any and all property in the [Defendant's] possession or held in the [Defendant's] sole name shall be the sole and exclusive property of the [Defendant]; the [Plaintiff] waives any and all right, title, interest or claim to said property."

Plaintiff states that Nash was purchased prior to the parties' marriage in December of 2019. Plaintiff has provided her bank statement and social media posts to show her acquisition of the dog in March of 2019. As Nash was clearly pre-marital property, the cause of action relating to Nash is not barred by collateral estoppel or res judicata.

Plaintiff concedes that Colby was purchased during the marriage, but alleges she was solely responsible for the adoption of Colby. Defendant argues all claims regarding the pets' ownership are barred by the divorce proceeding. It is true that a "final judgment of divorce settles the parties' rights pertaining not only to those issues that were actually litigated, but also to those that could have been litigated" (Xiao Yang Chen v Fischer, 6 NY3d 94, 100 [2005]). However, that does not end the analysis in this matter. The Separation Agreement specifically directs that any property in either party's possession or sole name at the time of the agreement shall remain in that party's sole possession. Although the Defendant has offered a dog license for Colby, the license postdates the Separation Agreement and does not establish that the Defendant possessed Colby at the time in question. Conversely, the Plaintiff has proffered Colby's adoption papers, which lists the Plaintiff as Colby's sole adopter. There is also nothing before the Court to show in whose possession Colby was at the time of the Separation Agreement. For these reasons, the Defendant is not entitled to dismissal based upon collateral estoppel and res judicata.

Secondly, Defendant argues that he, and the pets, are residents of New Jersey; and therefore, the Court lacks jurisdiction over the Defendant. Section 404 of the New York City Civil Court Act governs personal jurisdiction by acts of non-residents. This court "may exercise personal jurisdiction over any non-resident of the city of New York . . . if he . . . commits a tortious act within the city of New York. . ." (NY CLS NYC Civil Ct Act § 404).

It is well established that "[a]lthough the ultimate burden of proof regarding personal jurisdiction rests with the plaintiff, to defeat a CPLR 3211 (a) (8) motion to dismiss a complaint, the plaintiff need only make a prima facie showing that the defendant is subject to the personal jurisdiction of the court" (Shatara v Ephraim, 137 AD3d 1244, 1246 [2d Dept 2016]) (internal citations omitted). "The facts alleged in the complaint and affidavits in opposition to such a motion to dismiss are deemed true and construed in the light most favorable to the plaintiff, and all doubts are to be resolved in favor of the plaintiff" (Piccoli v Cerra, Inc., 174 AD3d 754, 755 [2d Dept 2019]).

A cause of action for replevin "accrues when the true owner makes demand for return of the chattel and the person in possession of the chattel refuses to return it" (Solomon R. Guggenheim Found. v Lubell, 77 NY2d 311, 317-318 [1991]). However, an action against a bad faith possessor begins to run "immediately from the time of wrongful possession, and does not require a demand and refusal" (Swain v Brown, 135 AD3d 629, 631 [1st Dept 2016]; see State v Seventh Regiment Fund, 98 NY2d 249, 261 [2002]; Davidson v Fasanella, 269 AD2d 351, 352 [*3][2d Dept 2000]). "Where replevin is sought against the party who converted the property, the action accrues on the date of conversion" (Swain v Brown, 135 AD3d 629, 631 [1st Dept 2016]). Based upon these holdings, the Court looks to determine where and when the tortious conduct, or wrongful possession, occurred.

Defendant's attorney's affirmation states that the Defendant did not commit any of acts enumerated in CPLR 302, which mirrors CCA § 404. The Defendant's affidavit conclusory and briefly states that he and the pets reside in New Jersey. In opposition, Plaintiff submits an affidavit that states the last meeting between the parties took place in Staten Island wherein the Defendant stated that the parties would continue to share custody of the pets. It was after that meeting that the Defendant refused to return the dogs to the Plaintiff. Deeming the facts alleged as true and construed in the light most favorable to the Plaintiff and what is known to the Court at this time, the wrongful possession — and tortious conduct — took place in Staten Island, subjecting the Defendant to the jurisdiction of this Court.

Accordingly, it is hereby

ORDERED that the Defendant's motion to dismiss is DENIED in its entirety; and it is further

ORDERED that the Defendant shall file and serve its answer within 30 days of the date of this Order.

This is the decision and order of the Court.