Fischbarg v. Doucet , 832 N.Y.S.2d 164 ( 2007 )

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered October 24, 2005, which denied defendants’ motion to dismiss the complaint for lack of personal jurisdiction, affirmed, without costs.

Plaintiff Gabriel Fischbarg is a lawyer and solo practitioner who lives and works in New York City. Defendant Suzanne Doucet is a California resident and the president of Only New Age Music, Inc. (ONAM), a California corporation. In early 2001, plaintiff received a call from Doucet. Based upon this call, plaintiff agreed to research and pursue potential claims for copyright infringement that ONAM may have had against nonparty Allegro Corporation (Allegro). On February 23, 2001 Doucet sent a letter to plaintiff at his New York office. The letter stated:

“Thank you for offering to help us with our legal efforts concerning [Allegro]. Our understanding is that you offered to take this case on contingency.

“Our understanding is also, that we only have to pay a deposit of $2000 against expenses, if you go forward with this case after reviewing our material. After settlement in or outside of court the moneys received from Allegro will be split Vs (you) h us, after the deduction of expenses incurred [by] both parties. Expenses will be reimbursed before split.

“Please find enclosed the requested information (contracts, copyrighted material, outline of events, and copies of correspondence) regarding Allegro’s fraudulent and infringing activities, which we discovered first in May 1999.

“Our previous attorney, Gerry Weiner said he would be happy to forward all materials regarding the history of this case to you, when needed. His material includes also CDs that we purchased for proof of their violations and all related other materials.” In the letter, Doucet also informed plaintiff that it thought ONAM might have to cancel all their agreements with Allegro; confiscate certain unauthorized reproductions of ONAM’s property; and demand disclosure of “accounting, negotiations and legal procedures” regarding Allegro’s use of ONAM property. Doucet wrote that Allegro had committed fraud, copyright infringement, and breach of contract. At its conclusion, the letter thanked plaintiff for “your time and consideration to look at this complex issue.”

In May 2001, defendants were sued by Allegro in federal district court in Oregon. Plaintiff was admitted pro hac vice in Oregon, and he represented defendants there from May 2001 to January 2002. However, plaintiff physically never appeared in Oregon and did all of his work in the Oregon lawsuit in New York. He took and defended depositions, appeared at court conferences, and argued defendants’ motion for summary judgment all by telephone. His time sheets, which are in the record, itemize 238.4 hours of legal work, all performed by plaintiff on defendant’s behalf in New York.

In August 2002, after a fee dispute, defendants discharged plaintiff. Plaintiff made an application to the Oregon court in the pending litigation to order payment of his fees. But that court held that it did not have personal or subject matter jurisdiction to determine whether plaintiff should be awarded the approximately $60,000 claimed due. Plaintiff thereafter brought this action in New York to recover that sum.

As a jurisdictional predicate for his claims against defendants, plaintiff relied on CPLR 302 (a) (1), New York’s long-arm statute. Defendants moved to dismiss the action for lack of jurisdiction, pursuant to CPLR 3211 (a) (8).

The IAS court found that it had personal jurisdiction over the defendants, under the long-arm statute, because: (1) defendants solicited plaintiff in New York to provide them with legal advice; (2) plaintiff was thereafter consulted in New York, at least twice a week for approximately a year, for legal advice which included the drafting of pleadings and conducting discovery in the Oregon action; and (3) this action concerns fees for the exact services solicited and performed by plaintiff with respect to the copyright dispute with Allegro for which he was retained. Defendants appeal.

It is defendants’ contention that they are not subject to jurisdiction in New York under the long-arm statute because they never physically came to New York. They argue that they never physically met with plaintiff; plaintiff was retained by a California corporation with respect to a claim against it by Allegro, an Oregon corporation; and plaintiff conducted a portion of ONAM’s defense in an Oregon federal court.

Plaintiff opposes, arguing, pro se, that defendants’ retention of him, a New York solo practitioner, and his subsequent work as counsel on defendants’ behalf in New York were sufficient to confer jurisdiction over the defendants under CPLR 302 (a) (1). We agree and thus affirm.

CPLR 302 (a) (1), entitled “Personal jurisdiction by acts of non-domiciliaries,” provides:

“(a) Acts which are the basis of jurisdiction. 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, or his executor or administrator, who in person or through an agent:

“(1) transacts any business within the state or contracts anywhere to supply goods or services in the state . ...” New York courts have interpreted this section to require, “some articulable nexus between the business transacted and the cause of action sued upon” (McGowan v Smith, 52 NY2d 268, 272 [1981]). In cases involving an out of state party’s retention of a New York attorney, jurisdiction has been upheld where a defendant, beyond merely retaining a lawyer in New York, has purposely availed itself of the services of that New York lawyer in this state (see Pennie & Edmonds v Austad Co., 681 F Supp 1074, 1077 [SD NY 1988] [although litigation took place in Maryland, defendant’s participation, through an agent in the preparation for that litigation in New York, was sufficient to confer personal jurisdiction for purposes of the long-arm statute]; and see Kelly v MD Buyline, Inc., 2 F Supp 2d 420, 430 [SD NY 1998] [although retainer agreement was signed in Texas, there was a factual basis for long-arm jurisdiction over one defendant based upon that defendant’s contacts with its attorney in New York, and subsequent New York litigation]).

The facts of this case support the conclusion that Doucet and ONAM had sufficient contacts with plaintiff in New York to subject them to jurisdiction here for purposes of determining their fee dispute. Defendants sought out plaintiff, previously unknown to them, in New York to perform legal services. At the time plaintiff was retained, it was not known whether defendants’ difficulties with nonparty Allegro would result in litigation. Nor was it known that the litigation would take place in an Oregon court. Allegro did not bring suit against defendants in Oregon until three months after plaintiff was retained and had begun to work for defendants in New York. Throughout plaintiffs representation, defendants made frequent phone calls to plaintiff in New York, and sent their e-mails and fax communications to him in New York. They made their payments to plaintiff’s office in New York, where they consulted plaintiff about their lawsuit and formulated and executed their litigation strategy.

Plaintiff has submitted itemized billing records for 238.4 hours of legal work, performed in conjunction with defendants and on their behalf. All of this work was done from plaintiffs New York office, including telephone depositions and phone conferences with the court in Oregon. Indeed, while plaintiff and his clients worked closely together in defense of the Allegro lawsuit in Oregon, all of plaintiff’s actions on his California clients’ behalf took place in New York. A review of plaintiffs time logs, which support this action for fees, clearly shows that defendants’ contacts with plaintiff, their New York counsel, were neither insubstantial nor sporadic (cf. Haar v Armendaris Corp., 31 NY2d 1040 [1973], revg on dissenting op of Capozzoli, J., 40 AD2d 769, 769-770 [1972]). By working with plaintiff on a consistent basis during the period in question, defendants “transacted business” in New York sufficient to subject themselves to this State’s jurisdiction over them in this fee dispute (Kaczorowski v Black & Adams, 293 AD2d 358 [2002]).

Contrary to the dissent’s view, Kaczorowski is not in conflict with precedent, but in fact consistent with the controlling law. The matter is directly on point and supports our determination here. In Kaczorowski, we stated: “In view of the evidence demonstrating that plaintiff was solicited by defendant in New York for the purpose of rendering legal services; that, subsequent to his retention by defendant, plaintiff was repeatedly consulted in New York by defendant respecting the matter in which he was retained; and that the present action was brought to obtain payment for services rendered by plaintiff in the very matter in connection with which plaintiff was solicited and retained by defendant, plaintiff has sufficiently established that defendant is subject to the jurisdiction of New York courts in this action pursuant to CPLR 302 (a) (1).” (293 AD2d at 358 [citations omitted].)

With the evolution of technology, it is clear that physical presence alone should not determine whether one has purposely availed itself of a state’s rights and benefits for jurisdictional purposes. One court has recognized this fact, stating “lawyers and other professionals today transact business with their pens, their fax machines and their conference calls—not with their feet” (see Bank Brussels Lambert v Fiddler Gonzalez & Rodriguez, 171 F3d 779, 787 [2d Cir 1999]). Indeed, the notion that a party need not have a physical presence in New York to be subject to CPLR 302 (a) (1) jurisdiction is long recognized. In 1970, our Court of Appeals held that “one need not be physically present in order to be subject to the jurisdiction of our courts under CPLR 302 for, particularly in this day of instant long-range communications, one can engage in extensive purposeful activity here without ever actually setting foot in the State” (Parke-Bernet Galleries v Franklyn, 26 NY2d 13, 17 [1970]). Thus, it is not determinative that defendants were not physically present in New York (see Pilates, Inc. v Pilates Inst., Inc., 891 F Supp 175, 179 [SD NY 1995] [“defendant need not actually enter New York to be viewed as transacting business in the state (under CPLR 302 [a] [1])”]).

Nor does the fact that the litigation took place in Oregon, not New York, preclude plaintiff from suing his clients in New York for his fees (cf. Colucci & Umans v 1 Mark, 224 AD2d 243 [1996] [CPLR 302 (a) (1) jurisdiction based upon out of state defendant’s retention of New York lawyer to handle litigation in New York court]; Otterbourg, Steindler, Houston & Rosen v Shreve City Apts., 147 AD2d 327 [1989] [same]; Elman v Belson, 32 AD2d 422 [1969] [same]; see generally Liberatore v Calvino, 293 AD2d 217 [2002] [Rhode Island attorney subject to New York’s long-arm statute based upon his actions preceding the filing of an untimely complaint in a New York court]).

It is defendants’ actions, requesting plaintiff to do substantial work for them in New York, which makes defendant subject to New York jurisdiction. Defendants “projected themselves” into this state by calling plaintiff, who did not know them, consulting him, writing to him, sending him voluminous documents, and then retaining him as their lawyer. ONAM, through Suzanne Doucet, sought out plaintiff, a New York attorney, in New York, for legal guidance and representation, and to protect ONAM’s intellectual property interests. Plaintiff did work in New York to assist defendants with their legal predicament, which eventually resulted in litigation. It was defendants, who, along with their February 23, 2001 letter, sent plaintiff in New York “contracts, copyrighted material, [an] outline of events, and copies of correspondence.” This was part of the lawyer-client relationship and only one of a number of purposeful acts by which defendants projected themselves into this state, and all of these acts are directly related to plaintiffs claim for fees (see Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, 457 [1965], cert denied sub nom. Estwing Mfg. Co., Inc. v Singer, 382 US 905 [1965]).

Requiring defendants to defend this fee dispute in New York does not, in the circumstances, offend “traditional notions of fair play and substantial justice” (Calder v Jones, 465 US 783, 788 [1984], quoting International Shoe Co. v Washington, 326 US 310, 316 [1945]). Defendants purposely availed themselves of the services of a New York attorney. Defendants had plaintiff do extensive work for them, plaintiffs records indicating over 238.4 hours, all in New York, and had plaintiff work for them exclusively from New York, even while defending them in the Oregon action. In fact, because plaintiff did not travel, defendants saved substantial sums. Under the circumstances, defendants should have anticipated being called into a New York court to litigate this action for fees. Concur—Mazzarelli, J.P, Friedman and Marlow, JJ.