Taurisano v. Tabb

GAYLE TAURISANO et al., Plaintiffs, v. DAVID RANDY TABB et al., Defendants.

6:19-cv-1637 (GLS/TWD)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

March 15, 2021

APPEARANCES:

OF COUNSEL:

FOR THE PLAINTIFFS:

Office of Robert F. Julian

2037 Genesee Street

Utica, NY 13501

STEPHANIE A. PALMER, ESQ.

ROBERT F. JULIAN, ESQ.

FOR THE DEFENDANTS:

David Randy Tabb & Deborah

Tabb

Quintairos, Prieto, Wood & Boyer

9300 S. Dadeland Blvd

Ste 4th Floor

Miami, FL 33156

VALERIE M JACKSON, ESQ.

Coldwell Banker Paradise & Ed

Schlitt Realtors

Goldberg, Segalla Law Firm

5786 Widewaters Parkway

Syracuse, NY 13214

SHANNON T. O'CONNOR, ESQ.

ALEXANDER J. BLOOD, ESQ.

Ocean Village Rentals

NO APPEARANCE

Gary L. Sharpe Senior District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiffs Gayle and Michael P. Taurisano bring this action against defendants Coldwell Banker Paradise and Ed Schlitt Realtors,¹ (hereinafter, collectively "Coldwell"), David Randy Tabb, Deborah Tabb, and Ocean Village Rentals² seeking to recover damages arising from G. Taurisano's personal injuries incurred during plaintiffs' stay in a rental condominium. (Compl., Dkt. No. 1.) Pending are motions to dismiss filed by Coldwell and the Tabbs, in which they argue, among other things, that personal jurisdiction is lacking. (Dkt. Nos. 17, 37.) For the reasons that follow, the motions are granted.

II. Background³

Plaintiffs entered into a short term lease agreement with Coldwell to rent a condominium, owned by the Tabbs, and located in Florida. (Compl.¶¶ 13-14.) During her stay, G. Taurisano tripped on a "raised, elevated, uneven step/threshold" at a sliding glass door between the kitchen and patio, causing her to fall into a kitchen counter. (Id. ¶¶ 16-17.) She sustained injuries, "including, but not limited to facial fractures, injuries to her left arm and wrist, pain and suffering, medical bills, disability, and loss of enjoyment of life." (Id. ¶ 17.)

III. Standard of Review

"When responding to a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that the court has jurisdiction over the defendant." Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999) (citation omitted). In assessing such a motion, a court may consider materials outside the pleadings. See Dorchester Fin. Sec., Inc. v. Banco BRJ, 722 F.3d 81, 86 (2d Cir. 2013).

In deciding whether a plaintiff has made a prima facie showing of jurisdiction, the court "construe[s] the pleadings and affidavits in the light most favorable to plaintiffs, resolving all doubts in their favor." Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir. 2010) (internal quotation marks and citation omitted). However, the plaintiff "must makeallegations establishing jurisdiction with some factual specificity and cannot establish jurisdiction through conclusory assertions alone." Cont'l Indus. Grp. v. Equate Petrochemical Co., 586 F. App'x 768, 769 (2d Cir. 2014) (internal quotation marks and citation omitted); see DeLorenzo v. Ricketts & Assocs., Ltd., No. 15-CV-2506, 2017 WL 4277177, at *5 (S.D.N.Y. Sept. 25, 2017) ("[C]onclusory non-fact-specific jurisdictional allegations or a legal conclusion couched as a factual allegation will not establish a prima facie showing of jurisdiction." (internal quotation marks and citations omitted)); SODEPAC, S.A. v. CHOYANG PARK, No. 02 Civ. 3927, 2002 WL 31296341, at *5 (S.D.N.Y. Oct. 10, 2002) ("Vague and generalized allegations . . . are insufficient to make a prima facie showing of jurisdiction over an out-of-state defendant." (citations omitted)).

IV. Discussion

A. Personal Jurisdiction

To make a prima facie showing of personal jurisdiction, a plaintiff must demonstrate: (1) procedurally proper service of process upon the defendant; (2) "a statutory basis for personal jurisdiction that renders such service of process effective"; and (3) that the exercise of personal jurisdiction comports with constitutional due process principles. See Licciex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59-60 (2d Cir. 2012). Here, defendants challenge whether personal jurisdiction comports with New York's long-arm statute and due process requirements.⁴ (Dkt. No. 17, Attach. 10 at 2-13; Dkt. No. 38 at 7-9.)

N.Y. C.P.L.R. § 302 (a)(1) states, in pertinent part: "As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent . . . transacts any business within the state or contracts anywhere to supply goods or services in the state." "This rule provides two distinct grounds for long-arm jurisdiction: where a defendant 'transacts any business' in the state and where a defendant 'contracts anywhere to supply goods or services' in the state." D&R Global Selections, S.L. v. Bodega Olegario Falcon Pineiro, 29 N.Y.3d 292, 297 (2017). Under either ground, (1) "the defendant must have purposefully availed itself of the privilege of conducting activities within the forum State by either transacting businessin New York or contracting to supply goods or services in New York" and (2) "the claim must arise from that business transaction or from the contract to supply goods or services." Id. (internal quotation marks and citation omitted); see Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 467 (1988) ("[P]roof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted." (citations omitted)).

Under the second prong, the plaintiff's claim must have an "articulable nexus" or "substantial relationship" with the defendant's transaction of business in New York. See D&R Global Selections, 29 N.Y.3d at 298-99. "At the very least, there must be a relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former." Id. at 299 (internal quotation marks and citation omitted); cf. Bristol-Myers Squibb Co. v. Superior Court of Cal., 137 S.Ct. 1773, 1780 (2017) ("[S]pecific jurisdiction is confined to adjudication of issues deriving from, or connected with, the very controversy that establishes jurisdiction." (internal quotation marks and citation omitted))."[A]n articulable nexus or substantial relationship exists where at least one element arises from the New York contacts"; however, "[t]he nexus is insufficient where the relationship between the claim and transaction is too attenuated or merely coincidental." D&R Global Selections, 29 N.Y.3d at 299 (internal quotation marks and citations omitted).

Here, plaintiffs maintain that the court has jurisdiction over defendants because defendants "purposely derived a benefit from their interstate activities by renting their condominium to out of state residents," and thus, their "efforts [were] purposefully directed toward residents of [New York]," sufficient to establish personal jurisdiction. (Dkt. No. 26, Attach. 6 at 3; Dkt. No. 43, Attach. 3 at 4.) And, as to Coldwell, plaintiffs further contend that Coldwell is "in the business of renting out condominiums for a monthly fee with a focus on renting the condominiums to out of [s]tate individuals for the winter months," and, according to plaintiffs, "[i]t is commonly known that New York State residents are frequent 'snow birds' to Florida during the winter seasons." (Dkt. No. 26, Attach. 6 at 4.)

Coldwell argues that it does not have any connections, let alone "minimum contacts," to New York that relate to plaintiffs' injuries. (Dkt.No. 17, Attach. 10 at 13.) In support of its motion, Coldwell submitted the affidavit of Steven Schlitt, the manager of Coldwell. (Dkt. No. 17, Attach. 2.) According to Schlitt's affidavit, Coldwell is a full service real estate company that manages and leases property in Florida, and serves real estate buyers and sellers in Florida; it is incorporated in Florida; its principal place of business is in Florida; its entire business operation is limited to Florida; it has never owned or used any offices in New York, nor has it ever managed or leased properties in New York; it has never negotiated or executed contracts in New York; it has never transacted business in New York, nor does it have any business contacts there; and it has never derived substantial revenue from New York. (Id. ¶¶ 11-24.)

Further, Coldwell does not directly advertise in New York, and its "print advertising is limited to local Florida newspapers and magazines, and postcards to owners of properties on the East Florida Coast Market." (Id. ¶ 25.) Lastly, Coldwell's and plaintiffs' "only physical interaction . . . was in the State of Florida, and limited to providing [plaintiffs] access to the property." (Id. ¶ 15.)

Similarly, the Tabbs, who are alleged to reside in Pennsylvania, (Compl. ¶ 3), maintain that they have no connections to New York, (Dkt.No. 38 at 7-9). In support of their motion, Deborah Tabb submitted an affidavit explaining that she does not "own, use or possess any property" in New York, nor does she do any business in New York. (Id., Attach. 1.)

Plaintiffs have offered nothing to refute these statements, and their bare assertions that defendants' actions were purposefully directed towards New York, (Dkt. No. 26, Attach. 6 at 3; Dkt. No. 43, Attach. 3 at 4), are unavailing. See Herlihy v. Sandals Resorts Int'l, Ltd., 795 F. App'x 27, 30 (2d Cir. 2019) (dismissing the plaintiff's claims for lack of personal jurisdiction over the defendant, and noting how the defendant "does not market itself directly to Connecticut citizens, travel agents, or media, and does not solicit or transact business with Connecticut residents" (citation omitted)). Indeed, it appears that the only reason plaintiffs commenced the instant action in the ...