### Mamo v Integrated Indus. Contr., LLC 2024 NY Slip Op 33399(U) September 30, 2024 Supreme Court, Tioga County Docket Number: Index No. 2023-00062995 Judge: Eugene D. Faughnan Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.At a Motion Tenn ofthe Supreme Court of the State ofNew Yorkheld in and for the Sixth Judicial District at the Broome County Courthouse, Binghamton, NewYork, onthe 10th day ofMay 2024. PRESENT:

. HON. EUGENE D. FAUOHNAN Justice Presiding STATE OF NEW YORK SUPREME COURT: COUNTY OF TIOGA

LOUIS S. MAMO, Plaintiff, 

### DECISION AFTER MOTION

vs. Index No. 2023-00062995 INTEGRATED INDUSTRIAL CONTRACTING, LLC,

.BRIAN M. DA VIS, Individually MARC WALOWITZ, Individually, PCI, INC., PETER CUMMINGS, Individually, .JM ALBAINE ENGINEERING, JOSE-MIGUEL ALBAINE, Individually Defendants.
Counsel for Plaintiff:

Counsel for Defendants PCI, INC., PETERCUMMINGS and JOSE-MIGUEL ALBAINE:

Defendant

### MARC W ALOWITZ, prose: BRADLEY S. DOUGLAS, ESQ. Law Office ofBradley Douglas 

### 8 The Glen · Glen Head, NY 11545 CATHERINE KEENAN, ESQ. Philip Russell LLC 1 River Road Cos Cob, CT 06807 KATHRYN 

### A. DONNELLY, ESQ. · Levene Gouldin & Thompson,.LLP · 450 Plaza Dr. Vestal, NY 13850 3471 Waverly Road Owego, NY 13827

1 

### [* 1]

### Defendant BRIAN M.DA VIS, prose:



### EUGENE D. FAUGHNAN, J.S.C. 303 Big Timber Canyon Big Timber, Montana 59011 25 Lilac Lane Danbury, CT 06810 Integrated Industrial Contracting, LLC 1511 Route 22, Suite 237 · Brewster, NY 10509

There are three motions for the Court to resolve in regard to this case, with the issues of jurisdiction and heightened pleading requirements for fraud actions being common to all of them. 1 

### The first motion, made by Defendants Peter Cummings, Inc. ("PCI"), Peter Cummings, individually, and Jose-Miguel Albaine, seeks dismissal ofthe original Complaint pursuant to CPLR 3211 (a)(7) [failure to state a cause ofaction] and (a)(8) [personaljurisdiction]. The second motion, made by the same Defendants, seeks dismissal ofthe Amended Complaint on the
same grounds. The third motion, made by Defendants Integrated Industrial Contracting, LLC ("Integrated") and Brian M. Davis, also seeks dismissal ofthe Complaint under CPLR 3211 (a)(7) and (a)(8), as well as CPLR 327(a) [inconvenient forum]. Plaintiff, Louis S. Mamo, filed
a single affidavit, with attached exhibits, in opposition to all the motions. Oral argument was held on May 10, 2024 at which time counsel for Plaintiffwas present, as was counsel for PCI, Peter Cummings and Jose-Miguel Albaine. There were no appearances onbehalfofIntegrated
orDavis.2 

### Defendant Marc Walowitz also did not appear atthe motion, and in fact, has not appeared in the action, nor answered the Complaint or Amended Complaint. After due deliberation, this constitutes the Court's Decision and Order with respect to the pending motions

.

•• 1 • - • .-,: ,. ••• 1 All the papers filed in connection with the motion5;are included in the NYSCEF electronic case file and have been · ,····- considered by the Court.

2 Subsequent to the filing ofthe motion by Integrated and Brian Davis, their counsel filed an Order to Show Cause to be relieved of representation, which was granted by the Court in an Orderfiled on March 5, 2024. In that same Order, the Court stayed the proceedings and adjourned the pending motions to permit Defendants Integrated and Davis, to retain substitute counsel, ifdesired. No additional information was received that substitute counsel had been retained. At the return date forthe current motions, there was no appearance by Integrated and Davis, but their moving papers will be considered. 2 

### [* 2]

### BACKGROUND FACTS

Mamo is a Florida resident and purchased property at 3 

### John Dominick Drive in Shelton, Connecticut. Plaintiff's Complaint (,rl2) and Amended Complaint (,rl3) statethat the acquisition ofthe property was in June 2019 but Plaintiff's affidavit, dated December 18, 2023, attests that he obtained ownership on August 3, 2021. Forpurposes ofthese motions, the different dates are not material to the Court's analysis. Per Plaintiff's allegations, Defendants Walowitz and Davis presented Mamo with an opportunity to purchase the subject property, and Walowitz actually served as the Real Estate Broker onthe transaction. Since Walowitz has not appeared inthe action, there is no direct information from himregarding the issues, but Mr. Davis has also stated that Walowitz is a real estate agent licensed in Connecticut. The crux ofMamo's claim is that he was deceived into hiring multiple companies to perform work onthe Connecticut property which was never undertaken. He claims many ofthe events surrounding the execution ofan agreement occurred in the State ofNew York and form the basis for his assertion oflong armjurisdiction. Plaintiffalleges that Walowitz recommended that he hire Integrated butthat Walowitz failed to disclose thathe and Defendant Davis were co-owner~ ofIntegrated. In essence, Plaintiffbelieves that Walowitz was taking advantage ofhis real estate connection with Mamo, and then funneling work to his own business, withoutrevealing that he would financially benefit from it. Plaintifffurther claims that Integrated is based inNew York, has a principal place of business in Tioga County, andthe entire fraudulent scheme is tied backto Integrated, Walowitz and Davis, and involves contacts with, and in, New York. After Mamo purchasedthe property, Walowitz and Davis informedhim that work needed to be done to bring the property up to code. Mamo claims that Walowitz arranged meetings between Mamo and Davis, continuing to conceal the true ownership ofIntegrated, and that many ofthose meetings with·Davis·oceurre_d virtually

..Thosetelephone and video calls-purportedly · originated from Davis and/or Walowitz inNew York. Eventually, Mamo hired Integrated, which proceeded to do clean-out work atthe property. In 2022, Mamo and Davis engaged in discussions regarding the need for additional repairs and renovations. Plaintiffasserts that Davis and Walowitz convinced himthat additional entities would need to be brought into perform

3 

### [* 3]work, including PCI and 

### JM Albaine Engineering, LLC 

### ("JMAE"). Plaintiffcontends that Cummings and PCI were not qualified and ultimately did not perform any services, and that he
was also persuaded to hire JMAE, which was also allegedly not qualified to perform the services. PCI is a Connecticut company, but Plaintiffclaims PCI is owned/operated by Cummings and Albaine, and it conducts significant business in.New. York so.that it shouldbe subjecttoNew

· York Statejurisdiction. · :·1 Plaintiffcommenced this action onJune 12, 2023. An Amended Complaint was filed on September 2, 2023, with six c~uses ofaction3 : 1) fraud against Walowitz.and Davis; 2) fraud against Walowitz and Davis relating to their capacities as owners ofIntegrated; 3) fraud against Cummings; 4) fraud against Albaine; 5) fraud againstCummings and Albaine intheir capacities
as owners ofPCI, and 6) fraud against Albaine in relation to his connection with JMAE. The Amended Complaint filed on September 2, 2023 included JMAE butthere is no indication that JMAE was ever served with the Summons and Complaint (or an Amended Summons and Amended Complaint). PCI, Cummings and Albaine filed a motion to dismiss the original Complaint on August 16, 2023, based on CPLR 321l(a)(7) and (a)(8). In support, they submitted an affidavit ofPeter Cummings and an affidavit ofJose-MiguelAlbaine, both dated August 15, 2023. They contend that they are non-domiciliaries and lack sufficient contacts withNew York State to support jurisdiction. After Plaintifffiled an Amended Complaint, PCI, Cummings and Albaine filed a second motionto dismiss on October 5, 2023, based on the same grounds and affidavits as their first motion. The third motion was filed by Integrated and Davis, individually. Those Defendants had previously filed an Answer onJuly 28, 2023, with affirmative defenses including personal and subject matterjurisdiction, as well as failure to state a cause·ofaction. Integrated and Davis seek to dismiss the action against them, pursuant to CPLR 321 l(a)(7) and·(8), arguing among otherthings that: they were never served with the original Summons and Complaint orthe Amended·6ompiaint; Plaintifffailed to amend the Summons-to inelude7-the~ew Defeμdant· JMAE so there has been nojurisdiction obtained; there is not a sufficient nexus with the State of New York tojustify this case being handled by New York courts ("inconvenient forum"); and

3 The Amended Complaint contains two causes designated as Count V. Itwould appear that one should have been listed as Count V and the other as Count VI. 4 

### [* 4]lac~ ofspecificity required in fraud cases (CPLR §3016[b]). In support, Davis filed an affidavit and his prior attorney filed an affirmation, as well as a Memorandum ofLaw.
LEGAL DISCUSSION AND ANALYSIS
Preliminarily, the Court notesthat PCI, Cummings and Albaine have filed two separate, motions to dismiss, butthey canbe treated asjust one. Theirfirst motion was made on August 16, 2023 and sought dismissal onthe basis oflack ofpersonaljurisdiction as well as failure to state a cause ofaction [CPLR 3211 (a)(7)] due to the lack ofspecificity inthe fraud allegations [CPLR 3016(b)]. Afterthe Plaintifffiled an Amended Complaint in September 2023, PCI, Cummings and Albaine filed a second motion to dismiss, which was nearly identical to the initial motion except to make changes based on paragraph re-numbering inthe Amended Complaint. An Amended Complaint supersedes the original Complaint and becomes the only Complaint in the case. 

### See, Sobel v. 

### Ansanelli, 98 AD3d 1020 (2nd Dept. 2012); 

### Mid-Hudson Val. Fed Credit Union v. 

### Quartararo & 

### Lois, PLLC, 155 AD3d 1218, 1219, n.l (3 rd Dept. 2017); 

### Taub v. 

### Schon, 148 AD3d.1203 (2nd Dept. 2017). Although there is a question ofproper service, there has been no challenge to the Plaintiff.s actual filing ofthe Amended Complaint such as a motion to strike the Amended Complaint. Davis and Integrated point outthat a party may amend his pleading once within twenty days after service per CPLR § 3025(a). Here, the Complaint
was filed onJune 12, 2023 andthe Amended Complaint was filed on September 2, 2023, more than 20 days later. Leave ofcourtto file the Amended Complaint was not sought, norgranted,
so an argument could be made that it was not timely. However, Defendants have not soughtto challenge the filing ofthe Amended Complaint, but instead, have raised issues concerning service andjurisdiction. Therefore, the Amended Complaint stands as the relevant filing. The initial Complaint is a nullity, andthe Court need only address the motion(s) to dismiss the Amended Complaint.

1. Motion to dismiss

CPLR 3211 sets forth the bases and procedure for a motion to dismiss. "On a motionto dismiss made pursuant to CPLR 3211, a court should construe the pleadings liberally, acceptthe

5 

### [* 5]allegations as true and afford the party oppo~ing the motion the benefit ofevery possible inference to determine whetherthe facts alleged fit within a cognizable legal theory." 

### T. Lemme Mech., Inc. v. Schalmont Cent. School Dist., 52 AD3d 1006, 1008 (3rd Dept. 2008) (citations omitted); 

### see, EBC

### I, Inc. v. Goldman Sachs 

### & Co., 5 NY3d 11, 1-9 (2005); 

### Leon v. Martinez, 84 NY2d 83, 87'(1994).; 

### Kreamer.,v. Town ofOxford,

..91 AD3d 1157 (3fd Dept.r201·2); 

### Stainless Broad. Co. v. Clear Channel Broad Licenses, L.P., 58 AD3d 1010 (3rd Dept:·2009). "[T]he ultimate criterion is whether the proponent ofthe pleading has a cause -ofaction, not whether he
or she has stated one." 

### Schmidt & 

### Schmidt, Inc. v. Town of Charlton, 68 AD3d 1314, 1315 (3rd Dept. 2009), 

### quotingLeon v. Martinez, 84 NY2d at 88. The court should not make factual determinations on a motion to dismiss. 

### See, Niagara MohawkPower Corp. v. State, 300 AD2d 949 (3rd Dept. 2002). Whether the complaint will withstand a later motion for summary judgment, or whether Plaintiffwill ultimately be able to prove the claims at trial, does notplay any part in the determination. 

### See, EBC

### I, Inc. v. Goldman Sachs & 

### Co., 5 NY3d 11; 

### Brown v. University of Rochester, 224 AD3d 1180 (3rd Dept. 2024). "Notwithstanding the broad pleading standard, bare legal conclusions with no factual specificity do not suffice to withstand a motion to dismiss

... [and] '[d]ismissal

... is warranted ifthe [pleading] fails to assert facts in support of
an element ofthe claim, or ifthe factual allegations and inferences to be drawn from them do not allow for an enforceable right ofrecovery.'"

### Mid-Hudson Val. Fed. Credit Union v. Quartararo & 

### Lois, PLLC, 155 AD3d 1218, 1219 (3rd Dept. 2017) [internal citations omitted] 

### quoting Connaughton v. Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 (2017). On this motion, Defendants have raised the grounds under CPLR 3211 (a)(5) and CPLR 3211 (a)(7).

2. Personal Jurisdiction- CPLR 321 l(a)(8)
PCI, Cummings and Albaine have raised personaljurisdiction as a basis for dismissal. Integrated and Davis have also filed their ownmotion for dismissal based onpersonal

. jurisdiction, althoughthe basis-differs from themotion of.PCl,·Cummings and Albaine~ ·The.,

.. -,,. Court's discussion onpersonaljurisdictionwill apply to all the moving Defendants. Generally speaking, personaljurisdiction involves the filing ofan action, service of process onthe defendant, and a basis for assertingjurisdiction over the defendant. 

### See, David D.

6 

### [* 6]Siegel 

### & Patrick M. Connors, New York Practice,§ 58 at p. 99 [6th ed.]. ·An three must be present to generate 

### an enforceablejudgment. The rules for service andjurisdictionvary based on whether the Defendant is an individual orbusiness. For example, there are different methods ofserving a Summons and Complaint on an individual 

### (see e.g. CPLR § 308) as opposed to a business 

### (see e.g. CPLR 

### § 31 l(a)(l), BCL 

### § 306(b)). Likewise, the analysis ofthe bases.for assertingjurisdiction can be different 

### ifit is a natural person or a corporation, and whetherthe·defendant is "present" within the state. In this case, there are two distinctchallenges being made tojurisdiction. Integrated and Davis claim that they were not properly served sojurisdiction has not been obtained. The other moving defendants (PCI, Cummings arid Albaine) focus onbeing out ofstate and being beyond the reach ofthe court. Jurisdiction concerns the power or authority ofa court to bind a litigant to the court's orders. Thejudgment "ofa court lacking personaljurisdiction [violates] the Due Process Clause ofthe Fourteenth Amendment." 

### Burnham v. Superior Court of California, County of Marin, 495 US 604,609 (1990); 

### Pennoyer v. Neff, 95 US 714 (1878). A person cannot be deprived oflife, liberty and property unless the court's exercise ofpower is lawful, and a court cannot bind
someone having no relation to the state. 

### See, J. 

### McIntyre Machinery, Ltd. v. Nicastro, 564 US 873 (2011). 

### Ifthere are no sufficient grounds forjurisdiction, then the court does not have any power or authority to render a determination.

a. Alleged failure to serve Davis and Integrated Although the motion by Davis and Integr~ted was made last, the Court will address it first. Pursuant to CPLR 321 l(a)(8), "[a] party may move forjudgment dismissing one.or more causes ofaction asserted against 

### him on the ground that: the court [ does not have]jurisdiction of t\1e-persoh ofthe-defendant." Under CPLR 

### § 306-b, the piaintiffis required-to--serve the defendant(s) within 120 days ofthe filing ofthe summons and complaint. 

### Ifa plaintifffails to do so, the defendant can move for dismissal which shall be granted, without prejudice. In support ofthe motion, Davis submitted_his own affidavit in which he asserts that he
was never personally served with a copy of.the Summons and Complaint orAmended

7 

### [* 7]

### Complaint; and further, that he is President and sole shareholder ofIntegrated, andthe business also was never served. The Court has observed that there is no affidavit ofservice in the electronic case file. Furthermore, Plaintiffs opposition did not discuss the question ofservice,
so he has not submitted anything to contradict Davis' assertion that there was no proper service. ;,One of the basic components ofpersonaljurisdiction isnotice and the opportunity to be
• • heard. See, Aybar v. Aybar, 

### 37 NY3d 274,:287 (2021). Compliance with the statutory , · ... requirements for the service ofprocess is required. Even though Integrated and Davis filed an Answer, they raised the issue ofpersonaljurisdiction in their answer and motion to dismiss, and is was therefore preserved. See, Steuhl v. CRDMetalworks, LLC, 

### 159 AD3d 1182 (3rd 

### Dept. 20l_8). The uncontradicted evidence here establishes that Integrated and Davis were not served with either the original Summons and Complaint, northe Amended Complaint. Accordingly, the Court must dismiss the case against Davis and Integrated.
b. General/Specialjurisdiction over non-domiciliary (PCI, Cummings and Albaine)

. A more complex issue is presented when a defendant argues that they are not present in NewYork and are beyond the court's reach, such as the motion by PCI, Cummings and Albaine. By vi~e ofcommencing an action, a plaintiffobviously consents to, and even relies upon, the court'sjurisdiction. As to defendants, there must be a basis for the court to acquirejurisdiction. For example, a person domiciled in New York is subject to thejurisdiction ofNew York courts regardless ofwhere service is made. See, Milliken v. Meyer, 

### 311 U.S. 457 (1940); Lansdale v. Lansdale, 

### 1 AD2d 374 (3 rd 

### Dept. 1956); CPLR 301. A resident enjoys the benefits and protections ofthe State and is appropriatelybound by the courts ofthat state. A non-domiciliary served within the state is also subject to thejurisdiction ofthe courts ofthat state. See, 

### J.

. . . McIntyre Machinery, Ltd. v. Nicastro, 

### 564 U.S. 873; Burnham v. Superior Court of California, County of Marin, 

### 495 U.S. 604. In Burnham 

### the Court noted that "[a]mong the most firmly

-- · -- - ,.,_~-estibif~ed principle~ ofpersonaljurisdiction'in

# Am~ii'c·iitr"iditi6n is that the courts ·ofa State havejurisdiction over nonresidents who are physically present in the State. The view developed early that each State had the power to hale before its courts any individual who could be found within its borders, and that once having acquiredjurisdiction over such a person by properly serving him with process, the State could retainjurisdictionto enterjudgment against him, no 8 

### [* 8]matter how fleeting his visit.". 

### Id. at 610-611. The presence ofa natural person withinthe state is easy to determine, but since the corporation is a fictional creation, it does not have a physical presence anywhere and the question of"presence" comes within the metaphysical realm. The courts have developed rules to evaluate whether a company is present within a state and subject to thejurisdiction-ofthat state
.... 

### See, e.g. BNSFRy. Co
..v.. Tyrrell, 581.U.S. 402-(201-7); 

### Daimler

. AGv. Bauman, 571 U.S. B7 (2014); 

### Goodyear Dunlop Tires.Operations, S.A. v. Brown, 564 U.S. 915,919 (2011) (court may assertjurisdiction over a foreign corporation "to hear any and all claims against [it]" only when the corporation's affiliations with the State in which suit is brought are so constant and pervasive "as to render [it] essentially at home in the forum State."); 

### Aybar v. Aybar, 37NY3d 274. "Jurisdictionmay be established in three ways: specificjurisdiction (where the claim arose); generaljurisdiction (where the defendant is athome); or consent." 

### Aybar v. Aybar, 37 NY3d 274, 294 (Wilson, J., dissenting). Jurisdiction by consent is not implicated in these motions so the Courtwill be focusing on the othertwo types of jurisdiction.4 A plaintiffseeking to assertjurisdiction over a defendant has the burden ofproofon that issue. 

### See, Archer-Vail v. LHVPrecastInc., 168 AD3d 1257 (3 rd Dept. 2019); 

### see also, PowerflexSolar, LLCv. Solar PVPros, LLC, 2024 NY App. Div. LEXIS 4273, *3 (3 rd Dept. August 1, 2024). When a defendant makes a motion to dismiss under CPLR 3211 (a)(8), "the plaintiffs, in opposition to a motion to dismiss

... need only make a primafacie showing that the defendants were subject to the personaljurisdictionofthe Supreme Court." 

### Abadv. Lorenzo, 163 AD3d 903, 94 (2nd Dept. 2018), 

### quotingDanielB. Katz 

### &Assoc. Corp. v. Midland Rushmore, LLC, 90 AD3d 977,978 (2nd Dept. 2011). In certain circumstances, it may appear that additional information might be necessary and relevant onthe question of jurisdiction which would warrant delaying determination pending discovery, similar to the provisions of~PLR 321 l(d) and CPLR 3212 (d). Inthat event, "plaintiffneed vnly demonstrate that it made

# a 'sufficient start' to warrant further discovery, which, pursuant to CPLR 3211 (d), [is] within Supreme Court's-discretion to grant~'~ 

### Arch~_r-fail v. LHVPrecastInc., 168 A1)3d ~t J261., ···:·. ,__ ,y • •· 

### quoting, BunkojfGen. Contrs. v. StateAuto. Mut. Ins. Co., 296 AD2d 699_,_ 700 (3 rd Dept. 2002).

4 In Aybar, the Court ofAppeals held that a foreign corporation does not consent "to the exercise ofgeneral jurisdiction by New York courts [simply] by registering to do business [in New York] and designating a local agent for service of process." Aybar, 37 NY3d at 280. Those are the steps necessary for aforeign corporation to be authorized to do business in New York. Plaintiff does not rely on any argument regarding consent. 9 

### [* 9]Mamo does not claim that he needs further discovery, but rather, thatthe evidence is sufficient to findjurisdiction. 

### Ininter~ationalShoe Co. v. Washington, 326 U.S. 310,316 (1945), the U.S. Supreme Court articulated a now well-known rule that personaljurisdiction may be asserted over 

### an out-

-,, of---state-defend~t who has "certain minimum contacts

### with [the State].such that the maintenance ofthe suit.<foes not offend 'traditional notions offair play and substantialjustice."' (

### citing Milliken v. Meyer, 311 at U.S. 463). The decision in 

### International Shoe, led to the "development oftwo categories ofpersonaljurisdiction."

### Daimler, 571 U.S. at 126. Those are general jurisdiction and specificjurisdiction. The distinction between general and specificjurisdiction
was described by the United State Supreme Court as: A court may assert generaljurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so 'continuous and systematic'·as to render them essentially at home inthe forum State. 

### See International Shoe, 326 U.S., at 317

.... Specificjurisdiction, onthe other hand, depends on an affiliation between the forum and the underlying controversy, principally, activity or an occurrence that takes place inthe forum State and is therefore subject to the State's regulation. 

### In contrast to general, all-purposejurisdiction, specificjurisdictionis confined to adjudication ofissues deriving from, orconnected with, the very controversy that establishesjurisdiction. 

### Goodyear, 564 U.S. at 919 (internal bracket, quotation marks, citations and end citation omitted).
Three years after the 

### Goodyear decision, the Supreme Court provided further instruction with regard to generaljurisdiction: 

### Goodyear made clear that only a limited set ofaffiliations with aforum will render a defendant amenable to all-purposejurisdiction there. "For an individual, the paradigm forum for the exercise ofgeneraljurisdiction is the individual's domicile; for a corporation, it is an equivalent place, one in whichthe corporation is fairly regarded as at home." 564 U.S., at 924, 131 S. Ct. 2846, 2854, 180 L. Ed. 2d 796,806 

### (citing Brilmayer et al., A General Look at General Jurisqiction, 66 Texas L. Rev. 721, 728 (1988)). With respect to a corporation, the place ofincorporation and principal place 

### of business are "paradig[m]

... bases for generaljurisdiction."

### Id., at 735. 

### See also Twitche~l, }01

## Ji.~:-~- Rev., at 633. ~ose_affil_iations have the_ vi~u~,.~f.\i.~~ng uniq11:e- ·thatis;··each ordinarilyindicates only'one place-as ivell as·easilyascertairiable. 

### CfHertz

Corp. v. Friend, 559 U.S. 77, 94, 130 S. Ct. 1181, 175 L. Ed. 2d 1029 (2010) ("Simple jurisdictional rules

... promote greaterpredictability."). These bases afford plaintiffs recourse to at least one clear and certain forum in which a corporate defendant may be sued on any and all claims. 

### Daimler, 571 U.S. at 137. 10 

### [* 10]Thus, generaljurisdiction over a corporation will usually be limited to situations where it is incorporated orhas its principal place ofbusiness, but it may also be shown in exceptional
cases where the corporation's activities are so pervasive in another state to fairly be the home of that corporation. Even that evaluation takes into account the proportion ofactivities within the subject state.to the corporation's overall-activities. Ifa.court has generaljurisdiction, it can hear•

-._.. · any claims against that defendant, similar to ifit was an individual resi~ing withinthe state. In New York, the exercise ofgeneraljurisdiction is found in CPLR 301, which simply states that "[a] court may exercise suchjurisdiction over persons, property, or status awmight have been exercised heretofore." The scope ofthat statute is controlled by constitutional constraints found in cases such a 

### Goodyear and 

### Daimler. In contrast to the general all-purposejurisdiction afforded when a defendant is at home within the state, ''[t]he primary focus of

## a specificjurisdictioninquiry is the defendant's relationship to the forum state
.... 

### Ifthe lawsuit arises out oforrelates to the defendant's contacts with the forum state-hereNew York-andthere is an affiliation between New York and the underlying controversy, then a New York court may exercise specificjurisdiction over the defendant." 

### English v. AvonProds., Inc., 206 AD3d 404,406 (151Dept. 2022) (citations omitted). Specificjurisdiction has become the muchmore frequently invoked basis of jurisdiction, and generaljurisdictionhas decreased in significance. 

### See, David D. Siegel 

### & Patrick M. Connors, NewYork Practice,§ 82 at p. 169 [6th ed.]; 

### Daimler, 571 U.S. at 128, 

### quoting Goodyear, 564 U.S. at 925. "ANew York court may not exercise personaljurisdiction over a non-domiciliary unless two requirements are satisfied: the action is permissible under the long-arm statute (CPLR 302) and the exercise of jurisdiction comports with due process." 

### Williams v. Beemiller, Inc., 33 NY3d 523,528 (2019), 

### citingLaMarca v. Pak-MorMfg. Co., 95 NY2d 210,214 (2000). "New York's long-arm statute, CPLR 302, sets forth the acts ofa non-domiciliary that may give rise to specificjurisdiction."

### Lelchookv. So~iete Generale de Banque au Liban SAL, 41 NY3d 629,633 (2024t: -e~I.;I_l302(a) states that specificjurisdictiq~m_ay be-~xerfis.e.c\.qver a non-resident who "(1) transacts any business within the state or contracts anywhere to supply goods or services in the state; or (2) commits a tortious act withinthe state
...; or (3) commits a tortious act without the state causing injury to person...within the state
...ifhe (i) regularly does or solicits business, or engages in any other persistent course ofconduct, or derives substantial revenue from goods
11 

### [* 11]used or consumed or services rendered, inthe state, ~r (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or (4) owns, uses or_possesses real property situated withinthe state." A court must determine whether a defendant transacted business inNew York or

.contracted to supply goods and services inthe state, and ifso, whetherthe.cause.ofaction arose

from those transactions. 

### Pichardo v. Zayas, 122 AD3d 699 (2nd Dept. 2014). "Anon-'· domiciliary defendant transacts business inNew York when onhis or her own initiative, the nondomiciliary projects himselforherselfinto this state to engage in a sustained and substantial transaction ofbusiness

.... The primary consideration is the quality ofthe non-domiciliary's New York contacts
..... [P]urposeful availment occurs when the non-domiciliary seeks out and initiates contact withNew York, solicits business inNew York, and establishes a continuing relationship." 

### D & 

### R Global Selections, S.L. 

### v. Bodega Olegario Falcon Pineiro, 29NY3d 292, 298 (2017) (citations, internal quotations marks and alterations omitted). There mustbe an articulable nexus or substantial relationship betweenthe activities within the state and the claim being made. 

### Id. at 298-299 In the present case, Mamo has failed to establish that PCI, Cummings and/orAlbaine conducted business inNew York by engaging inpurposeful activity within the state. 

### See, Fischbarg v. Doucet, 9 NY3d 375 (2007). Perthe Cummings affidavit and exhibits: PCI is incorporated in Connecticut, with offices in Fairfield, Connecticut and Montana; it is not registered to do business inNew York, has no real property inNew York, and maintains no bank accounts in this state; it does not advertise nor solicit business inNew York, and has only worked one project in New York in the last 20 years. Cummings further stated that neither he individually, nor PCI, had any contract with the Plaintiff, and was not paid for any services by Plaintiffor Davis. Rather, Davis asked for a proposal for the renovation ofthe subject property, which he prepared and emailed back to Davis, but Davis did notrespond. The only contact he had with Mamo was two telephone conversations when Cummings was present on his landline in Connecticut. He never attended any viqeo··calls--~th the_Plaintiffand nevertravelled toNew
. York in connection with this project. Albaine also provided an affidavit in which he stated that he was not employed or affiliated with PCI and he had no involvement with this project. He has never had any contact with Mamo and has not participated in any conference calls ortelephone calls with Mamo. He
12 

### [* 12]lives in Connecticut, operates his business from Connecticut and does not have any significant contacts with New York. In opposition, Mamo points to various contacts he had with Davis and/or Integrated, and paid invoices with Integrated, but he provides scant information with respect to PCI, Cummings orAlbaine.- Mamo's affidavit does not provide any details.as_to:contact~ with-Cummings .or . Albaine such asdates and times ofany phone calls/video conferences; the originating party, the substance ofany discussions orany other evidence to show that PCI, Cummings orAlbaine were interjecting themselves into activities within New York. Mamo did provide invoices from Integrated, one ofwhich contains an item description as a retainer for PCI, and it indicates that Integrated made that payment (which is denied by Cummings). Mamo did not make the payment and there is no evidence that any payment was made to PCI. Mamo also submitted information from awebsite showing that PCI, Cummings and Albaine have been collaborating onprojects for over 2 decades, but there is absolutely no evidence that this information was targeted to, or received by, any New York residents orbusinesses. There is no generaljurisdiction over PCI, Cummings orAlbaine. PCI is incorporated and has its principal place ofbusiness in Connecticut, notNew York. 

### See, Daimler, 571 U.S. at 137. The activities ofPCI do not qualify as one ofthe "exceptional" circumstances, where the business activities were ofsuch a "continuous and systematic" nature to establish PCI was at home in New York. Thereis also no generaljurisdiction over Cummings or Albaine, because both are non-domiciliary in New York, were not served here, and do not have any other indicia sufficient for the exercise ofgeneraljurisdiction. Specificjurisdiction, or long armjurisdiction by virtue ofCPLR 302 has also not been established. There is no evidence that any ofthose defendants "transacted business" inNew York or contracted to perform any services within New York. Mamo is a Floridaresident, the property was located in Connecticut, and any injury befell Mamo in Florida. Mamo has completely failed to contradict the affidavits ofCummings and Albaine tha_t they were not

·involved in any pr9ject p~anningirrNew York, orthat any oftheiractionsJed: t9 injury.:itt~New·

•' • • I York. There is also no showing that any ofthese Defendants "regularly does or solicits business,
or engages in any otherpersistent coμrse ofconduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or ... expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or
13 

### [* 13]international commerce" CPLR 302(a)(3). The Plaintiffhas failed to show that any ofthese Defendants are subject to specificjurisdictionunder New York's long arm statute. There is· no basis for this Courtto assert personaljurisdiction overthese out ofstate Defendants. Accordingly, the motion ofPCI, Cummings and Albaine to dismiss under CPLR 321 

### t (a)(8) is granted.

3. Failure to State a Cause ofAction- CPLR 321 l(a)(7) Although the Court's conclusions with respect to the personaljurisdiction arguments are dispositive, the Court will also address Defendants' alternative argument to dismiss for failure to state a cause ofaction. That argument is based onthe lack ofspecificity in Plaintiffs fraud claim. Fraud involves a material misrepresentation ofa fact, knowledge ofits falsity, an intention to induce reliance, actualjustifiable reliance and damages. 

### See, Ross v. Louise Wise Servs., Inc., 8 NY3d 478,488 (2007); 

### Luckow v. RBG Design-Build, Inc., 156 AD3d 1289, 1294 (3 rd Dept. 2017). Fraud claims are subject to a heightened pleading requirement in that ''the circumstances constituting the wrong shall be stated in detail." CPLR 3016(b); 

### see, Eurycleia Partners, LP v. Seward & 

### Kissel, LLP, 12 NY3d 553 (2009). "Althoughthe particularity requirements should not be so strictly interpreted to prevent an otherwise valid cause ofaction where those circumstances are peculiarly within the knowledge ofthe party alleged to have committed the fraud" 

### [Nosegbe v. Charles, 227 AD3d 1400, 1402 (4th Dept. 2024) (citations and internal quotation marks omitted)], the Complaint "has to allege enough facts to establish the elements ofthe cause ofaction." 

### Eurycleia Partners, 12 NY3d at 559. In the present case, the Amended Complaint provides no details concerning the specific misrepresentations that were made, who made them, when they were made, and that Mamo justifiably relied onthose statements. "Bare allegations offraud in a complaint without any all~gation-ofthe-details constituting-the wrong are not sufftcient·ttr-sustai~ a cause ofaction~" 

### Kline v. TaukpointRealty Corp., 302 AD2d 433, 433 (2nd Dept. 2003). Here, Plaintiffs Amended Complaint is filled with conclusory statements but no specifics. For example, in paragraph 30, it is alleged that Walowitz and Davis made material misrepresentations as to their ability to fix the issues 

### with the property, and that they did not
14 

### [* 14]disclose they were inbusiness together. There are no details as to those statements. General statements without referring to when, where orhow defendants made the statements is insufficient to satisfy the heightened pleading requirements. Further, the lack ofparticularity regarding the Defendants' expertise and ability to performthe work requires dismissal. 

### See, Luckow v. 

### RBG Design-Bui/di'Inc., 156 AD3d 1289. Similarly, Plaintiffs Amended Complaint fails to offer any details about the alleged phone calls/video calls made between Mamo and Integrated/Davis and/or Walowiti. There is no indication ofwhen these conversations occurred or what was said-key elements in determining if the statements were intended to induce Mamo to enter into an agreement that Defendants did not intend to complete. Likewise, the Amended Complaint alleges that Cummings and Albaine misrepresented their ability to fix the issues with the property, and that they were not truthful about their business relationship and connections with Integrated. Once again, these are only conclusory statements without any detail. The Amended Complaint contains only vague and general allegations without any factual support. CPLR 3016 (b) requires more than that. Accordingly, the Court concludes that Defendants' motion to dismiss under CPLR 3211 (a)(7) is granted.

4. Motion to dismiss based on inconvenient forum

In light ofthe Court's determinations with respect to the motions to dismiss pursuant to CPLR 3211 (a)(7) and (a)(8), there is no need for the Courtto address the additional argument from Integrated and Davis seeking dismissal on the grounds thatNew York is not a convenient forum for the action. Since dismissal is being granted ontwo different grounds, any further commentary from the Court would not be warranted.


### ·····' ·eONCLUSION

Based on the foregoing, the Court determines that it has insufficient grounds to exercise jurisdiction overthe moving Defendants. There is no proofofservice ofprocess on Integrated and Davis. There are no grounds for the Court to exercise general or specificjurisdiction over 15 

### [* 15]non-domiciliaries PCI, Cummings and Albaine. The Court also finds that the Amended Complaint fails to allege the fraud claims with particularity, and therefore dismissal is also warranted on that basis. As a result, a determination on the motion to dismiss due to inconvenient forum is not needed nor appropriate at this time. Accordingly, and after due deliberation, 

### · it is hereby

ORDERED, that the motion ofPCI, Cummings and Albaine to dismiss the Amended Complaint is GRANTED, and it is further

ORDERED, that the motion ofIntegrated and Davis to dismiss the Amended Complaint is GRANTED, and it is further

ORDERED, that counsel for PCI, Cummings and Albaine is to submit a proposed Order, on notice with respect to all the motions (by 1paper), within 30 days.

THIS CONSTITUTES THE DECISION OF THIS COURT.

Dated: September

# SQ_,2024 Binghamton, New York

16 

### [* 16]