Mark E. Deysher d/b/a Deysher Trucking v. All Boros Building Materials Corp.

(NYS Supreme Court, NY County, 6/2/2009)

We represented: Deysher Trucking

Hon. Ute Wolff Lally, J.S.C.

DECISION and ORDER

Upon the foregoing papers, it is ordered that this motion by plaintiff for an order pursuant to CPLR 3211 striking the affirmative defenses of the defendant and for an order pursuant to CPLR 3212, granting summary judgment in its favor, is granted.

In this action, plaintiff seeks to enforce a judgment entered in the Court of Common Pleas of the County of Northampton in the State of Pennsylvania, based on defendant's failure to appear in the pennsylvania action. Plaintiff commenced the original action alleging that defendant failed to make payments for services and cement goods delivered to them from June 2005 through April 2006.

This action was commenced on September 19, 2007 and issue was joined on or about November 1, 2007 by service of an answer interposing two affirmative defenses on behalf Of defendant. The first affirmative defense alleges that plaintiff's complaint failed to state a cause of action. The second affirmative defense alleges that defendant was not properly served with process in the Pennsylvania action and that the Pennsylvania court did not have personal jurisdiction over the defendant.

Plaintiff moves to strike both affirmative defenses. In support of its motion, plaintiff submits the affidavit of service from the action in Pennsylvania to demonstrate that service was complete. Plaintiff also submits the sworn affidavit of plaintiff Mark Deysher who states that defendant solicited him by telephone to deliver goods from Pennsylvania to defendant's place of business in New York. He further states that the cement goods delivered to defendant originated in Pennsylvania. All invoices were generated there as well, and that he delivered thirty-five separate orders for which he has received no payment.

Defendant corporation, in opposition, argues that the Pennsylvania court did not have long-arm jurisdiction over it and as a result, this court cannot enforce the Pennsylvania judgment. Defendant contends that All Boros did not have sufficient minimum contacts with plaintiff in Pennsylvania. Specifically, defendant argues that plaintiff cannot establish that All Boros solicited the cement goods as there is no indication as to how many times or when defendant contacted him and who on behalf of All Boros contacted plaintiff to place the orders. In addition, defendant submits the sworn affidavit of Alfonso Tedesco, president of All Boros, who states that plaintiff only rendered trucking services and did not solicit orders from All Boros. Mr. Tedesco further states that plaintiff was connected with a cement supplier, Keystone Portland Cement (hereinafter "Keystone") , which arranged for all transportation to defendant and that All Boros did not participate in these transportation arrangements. In regard to defendant's first affirmative defense, it is well established that "a defense that a complaint does not state a valid cause of action cannot be interposed in an answer, but must be raised by appropriate motion pursuant to CPLR 3211 (a) (7)" (Propoco, Inc. v Birnbaum, 157 AD2d 774; see also Plemmenou v Arvanitakis, 39 AD3d 612; Bentivegna v Meenan oil Co., 126 AD2d 506). Accordingly, defendant's first affirmative defense is stricken.

The first portion of the second affirmative defense alleges that defendant was not properly served with process in the Pennsylvania action. According to Pennsylvania Rules of Civil Deysher v All Boros – 3 – Index No.17201/07 Procedure No. 404, "original process shall be served outside the Commonwealth within ninety days of the issuance of the writ or the filing of the complaint or the reissuance Or the reinstatement thereof . . . by mail in the manner provided by Rule 403." Pursuant to Rule 403, "if a rule of civil procedure authorizes original process to be served by mail, a copy of the process shall be mailed to the defendant by any form of mail requiring a receipt signed by the defendant or his authorized agent. Service is complete upon delivery of the mail." In the case at bar, the sworn affidavit of service signed and submitted by plaintiff's attorney states that the complaint was served upon defendant by certified mail, return receipt on March 15, 2007. The affidavit also incorporates the return receipt signed by Mr. Tedesco as proof of service pursuant to Pennsylvania Rules of civil Procedure No. 405. Thus, the first portion of the second affirmative defense is stricken as plaintiff has established that service of process was in accordance with Pennsylvania Rules of Civil Procedure Nos. 403 and 404.

Plaintiff further moves to strike the remaining affirmative Defense alleging that the Pennsylvania court did have personal jurisdiction over defendant and that the Pennsylvania judgment should be enforced in New York. It is well established that "a Judgment rendered by a court of a sister State is accorded 'the same credit, validity, and effect, in every other court of the United States, which it had in the state where it was pronounced'" (All Terrain Props., Inc. v Hoy, 265 AD2d 87). However, "New York courts will not enforce a judgment of a sister state where it is shown that the state in which the judgment was entered did not have jurisdiction over the defendant" (City Federal Say, Bank v Reckmeyer, 178 AD2d 503). In order to determine whether a court properly asserted jurisdiction over a defendant requires a two-part analysis, requiring a determination of whether: 1) the sister state's long-arm statute has been complied with, and 2) whether that court's exercise of jurisdiction comports with principles of due process under Federal constitutional law (Id).

Pennsylvania's long-arm statute confers jurisdiction over any person "who acts directly or by an agent, as to a cause of action or other matter arising from such person transacting any business in this Commonwealth" (42 Pa.C.S. § 5322). In the case at bar, plaintiff admits that it had a contract with Keystone, a Pennsylvania based cement business. Although defendant did not contract with Deysher directly, the record indicates that Deysher was an agent of Keystone. Specifically, there is an agency relationship as Deysher provides transportation services to Keystone and all transportation arrangements are made between the two entities. Thus, there is no question here as to whether the Deysher v All Boros 4 – Index No.17201/07 requirements of Pennsylvania's long-arm statute were satisfied.

In regard to the due process requirements of the Federal Constitution, it is necessary to determine whether All Boros had minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice and whether All Boros conduct and connection with the forum State were such that they should reasonably have anticipated being sued there (City Federal Say. Bank v Reckmeyer, 178 AD2d 503; see also International Shoe Co. v Washington, 326 US 310; Worldwide Volkswagen Corp. v Woodson, 444 US 286). Here, it is evident that All Boro's contacts with the forum state were deliberate and purposeful, and that the controversy arose from such contacts. Defendant contracted to purchase goods from Keystone on an ongoing basis with Deysher providing transportation services for the goods, and the dispute arose out of that contractual relationship (City Federal Sav Bank v Reckmeyer, 178 AD2d 503; see also David Newman & Assocs .. P.C. v Natoli, 250 AD2d 723). Based on the foregoing, defendant's remaining affirmative defense is also stricken.

Furthermore, based on the record, plaintiff has made a prima facie showing of entitlement to judgment. Hence, the Pennsylvania judgment is entitled to full faith and credit in New York. Accordingly, this motion by plaintiff for an order pursuant to CPLR 3211 striking the affirmative defenses of the defendant and for an order pursuant to CPLR 3212, granting summary judgment in its favor is granted.

Dated: June 2, 2009