Eisner v Berland

Supreme Court, Kings County

Decided on May 15, 2026

Index No. 16/2025

Aaron D. Maslow, J.

The following papers were used on this motion: moving Defendants' notice of motion, affirmations, exhibits, memorandum of law.

Upon the foregoing papers, having heard oral argument, and due deliberation having been had, the within motion is determined as follows.

Defendants Michael E. Berland, Chartwell Auctions LLC, and Hanna Commercial LLC s/h/a Hanna Commercial Real Estate (Hanna Defendants) seek dismissal of the complaint in its entirety pursuant to CPLR 3211 (a) (7) and (8); also on forum non conveniens grounds. Despite adjourning the motion on January 16, 2026 to enable plaintiff to submit opposition by April 24, 2026, he did not do so. Neither did he appear for oral argument on May 15, 2026.

Plaintiff participated in a Mansfield, Ohio auction for real property located at 68 Park Avenue East, Mansfield, Ohio. The subject property was listed by the real estate brokerage firm Hanna Commercial Real Estate and auctioned by Chartwell, a real estate auction firm often used by Hanna Commercial. Both companies are located in Ohio and are not licensed to do work in New York. In short, Plaintiff claims that despite being the winning bidder, he was defrauded out of the subject property and believes the auction was actually rigged.

Hanna Defendants argue that the complaint fails to allege any facts sufficient to support a viable cause of action for fraud, breach of contract, specific performance, declaratory judgment, and defamation as they depend on vague, conclusory assertions, and speculations, rather than concrete factual allegations.

Regarding the first cause of action (fraud and misrepresentation), Plaintiff failed to meet the heightened pleading requirement as the complaint fails to specify (1) representations/omissions; (2) deceptive acts; (3) misrepresentations made to induce Plaintiff; (4) concealed facts; and (5) how the Hanna Defendants fraudulently conveyed the property.

The second (breach of contract) cause of action fails to state a claim. The complaint does not adequately allege that a contract ever existed nor does it allege any form of offer and exchange; it does not provide proof that Hanna Commercial was a contracting party to the purchase agreement, and it omits how the Hanna Defendants breached.

The third cause of action (specific performance) also fails to state a claim. The complaint fails to allege any element for specific performance (see E & D Group, LLC v Vialet, 134 AD3d 981 [2d Dept 2015] [that "plaintiff substantially performed its contractual obligations and was willing and able to perform its remaining obligations, that defendant was able to convey the property, and that there was no adequate remedy at law"]). Although Plaintiff alleges to having transmitted escrow funds to the Ohio company, he fails to claim that he submitted full payment, complied with specific payment deadlines, or executed the required closing documents.

The fourth cause of action (declaratory judgment) fails to state an actual, justiciable [*2]controversy (see CPLR 3001). Plaintiff seeks a declaratory judgment concerning contractual rights and ownership of the subject property for an out-of-state property dispute, overlapping with breach of contract and specific performance claims.

The fifth cause of action (defamation) also fails to state a cause of action as Plaintiff did not allege that any false statements were made by Hanna Defendants. If this claim was in reference to a declaratory judgment against Plaintiff, then the cause of action still fails as such was a factual assertion reflecting a legal conclusion.

Hanna Defendants also contend lack of personal jurisdiction. As Berland is domiciled in Ohio and does not have any contact with New York, personal jurisdiction cannot be established under CPLR 301 (general jurisdiction exists where a defendant is domiciled in the state or where the individual's contacts are so extensive as to support general jurisdiction) (see IMAX Corp. v The Essel Group, 154 AD3d 464, 465-66 [1st Dept 2017] ["New York courts may not exercise general jurisdiction against a defendant under the United States Constitution or under CPLR 301 unless the defendant is domiciled in the state"]). Similarly under CPLR 302 (a) (1), there is no personal jurisdiction as such is inapplicable to individuals unless that person is doing business in New York, which Berland does not (see Law Off. of Cary Scott Goldinger, P.C. v Deluca, 219 AD3d 598, 599 [2d Dept 2023] ["Under New York's long-arm statute, 'a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent . . . transacts any business within the state' (CPLR 302 [a] [1]), regardless of whether that non-domiciliary has actually entered New York State see Fischbarg v Doucet, 9 NY3d at 380)."]).

Similarly, personal jurisdiction cannot be established for Chartwell Auctions LLC and Hanna Commercial not only because they are Ohio companies but also due to Plaintiff's failure to plead that they are "at home" in New York (see Aybar v Aybar, 37 NY3d 274 [2021] [plaintiff must demonstrate that a corporate defendant is "at home" in the forum state, where "at home" refers to where the business is incorporated or has its principle place of business]). Specifically, Hanna Commercial did not target, solicit, or direct marketing or business activities toward New York residents. All conduct regarding the matter occurred in Ohio, and any communications between Plaintiff and either company is not enough to permit jurisdiction in New York (see Greco v Ulmer & Berne LLP, 23 Misc 3d 875 [Sup Ct, Kings County 2009] [CPLR 302 (a) (1) cannot be based solely on communications with a New York resident when the substantive conduct occurred entirely outside the state]).

Furthermore, jurisdiction is not established under CPLR 302 (a) (2), (3), or (4). CPLR 302 (a) (2) deals with tortious acts committed within the state, which did not occur here. CPLR 302 (a) (3) is triggered when a tortious act occurs outside of the state injuring someone within the state when the defendant either regularly conducts themselves or their business in New York or should have reasonably expected the consequences of their actions to affect the state. This is inapplicable because the alleged injury occurred in Ohio and CPLR 302 (a) further states that "the situs of injury is the location of the original event . . . not the location where the resultant damages [occurred]." Finally, CPLR 302 (a) (4) is only applicable to cases dealing with defendants who own, use, or possess property in New York, which is not the case here.

Hanna Defendants also claim that the complaint should be dismissed due to forum non-conveniens. Although Plaintiff is a New York resident, the subject property, witnesses, defendants, and alleged claims all stem from or are located in Ohio. The Defendants' arguments regarding forum non conveniens are on point (see Mashreqbank PSC v Ahmed Hamad Al Gosaibi & Bros. Co., 23 NY3d 129 [2014]).

Accordingly, the motion by Defendants Michael E. Berland, Chartwell Auctions LLC, and Hanna Commercial LLC s/h/a Hanna Commercial Real Estate is GRANTED based on all of the reasons related above. The Court lacks personal and general jurisdiction to hear this action in New York against the moving Defendants. This action is also dismissed against them on forum non conveniens grounds. There also are no properly pleaded causes of action against the moving Defendants. The Clerk shall enter judgment dismissing the complaint insofar as asserted against the moving Defendants.