Summary
In Kappas, another person injured by a meat packaging machine brought suit against the same Massachusetts company sued in Schaadt, which then brought a third-party claim against the same German manufacturer.
Summary of this case from Kernan v. Kurz-Hastings, Inc.Opinion
April 15, 1993
Appeal from the Supreme Court, Bronx County (Barry Salman, J.).
The IAS Court properly determined that summary judgment was precluded by the existence of issues of fact as to whether Kraemer Grebe, GMBH Co. K.G. ("Kraemer"), the German manufacturer of the meat packing machine which caused plaintiff's injuries in New York, had sufficient minimum contacts with New York so as to be subject to longarm jurisdiction pursuant to CPLR 302 (a) (3) (i) by virtue of a contractual designation of T.W. Kutter, Inc. ("Kutter") as Kraemer's exclusive distributor and promoter of the machine manufactured by Kraemer for all territories of the United States, including New York, and Kutter's activities in servicing and repairing the machines sold in New York and Kraemer's activity in warranting the machines (Frummer v Hilton Hotels Intl., 19 N.Y.2d 533; Longines-Wittnauer Watch Co. v Barnes Reinecke, 15 N.Y.2d 443). The activities of a representative of a non-domiciliary in New York will be attributed to the non-domiciliary for the purpose of long-arm jurisdiction if the non-domiciliary requested the performance of those activities in New York and benefitted therefrom (Cato Show Print. Co. v Lee, 84 A.D.2d 947, 949). Moreover, it is well settled that a court may exercise personal jurisdiction over a non-domiciliary, who in person or through an agent, "commits a tortious act without the state causing injury to person or property within the state * * * if [the non-domiciliary] * * * expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce" (CPLR 302 [a][3][ii]).
The prior determination in Schaadt v T.W. Kutter, Inc. ( 169 A.D.2d 969), granting summary judgment in Kraemer's favor based upon lack of personal jurisdiction in New York, does not collaterally estop relitigation of the jurisdictional issue in the underlying action where the record reveals that the relationship between Kraemer and its exclusive agent, Kutter, was materially altered by a written contract executed by those parties after the date of the operative events in Schaadt and that Kraemer failed to meet its burden of establishing an identity of issue which has necessarily been decided in the prior action and is decisive of the present action (Schwartz v Public Adm'r of County of Bronx, 24 N.Y.2d 65, 71). In any event, the plaintiff's employer, Marathon, was not a party to the Schaadt action and therefore did not have a full and fair opportunity to contest the decision now said to be controlling (supra).
We have reviewed Kraemer's remaining contentions and find them to be without merit.
Concur — Milonas, J.P., Ellerin, Ross, Kassal and Rubin, JJ.