Opinion
November 30, 1972
Appeal from the Monroe Special Term.
Present — Goldman, P.J., Del Vecchio, Witmer, Cardamone and Henry, JJ.
Order unanimously reversed and matter remitted to Special Term for a hearing in accordance with Memorandum, with costs to abide the event. Memorandum: The burden of establishing that defendant is doing business in New York is upon plaintiffs ( Lamarr v. Klein, 35 A.D.2d 248, 250, affd. 30 N.Y.2d 757; Millard v. Binkley Co., 28 A.D.2d 620). The papers submitted to Special Term on the motion to dismiss the complaint for lack of jurisdiction over the defendant are insufficient to establish that the court has such jurisdiction, and so defendant's motion should not have been unqualifiedly denied. On the other hand, there is some evidence that defendant is doing business in New York. Since defendant movant is in control and possession of the facts which are decisive of this question, the motion should not be determined on the papers alone, but a hearing should be had whereon the jurisdictional facts or lack thereof may be established ( Noble v. Singapore Resort Motel of Miami Beach, 21 N.Y.2d 1006; D'Agostino v. Quality Courts Motel, 35 A.D.2d 842; Grandoe Glove Corp. v. Great Eastern Fin. Corp., 34 A.D.2d 593; Ellis v. Smith Transfer Corp., 24 A.D.2d 871).