The burden of proof of establishing jurisdiction over the defendant is on the plaintiff. In making a determination on whether defendant is present in this State, a Court is obliged to examine the totality of defendant's New York contacts. Upon the submitted proofs, plaintiff has met its burden of proof of preliminarily establishing jurisdiction over defendant. Plaintiff has demonstrated a basis for allowing this action to proceed. Defendant's motion to dismiss the action based upon lack of personal jurisdiction is denied without prejudice.
Defendant also moves to dismiss the complaint based upon improper service.
Plaintiffs served process upon defendant at the business address of defendant's wholly owned subsidiary Kvaerner USA in New York. This is the same place plaintiffs allege they negotiated the parties contractual agreement. Defendant contends that service was improper because service of a subsidiary in New York violates the Hague Convention. Defendant legal contention is contrary to well established case law. We reject this argument.