Opinion
May 2, 1995
Appeal from the Supreme Court, New York County (Burton Sherman, J.).
Defendant Heath Fielding's motion to dismiss the entire action on jurisdictional grounds was properly denied. By alleging that Heath Fielding's agent entered New York to take part in discussions directly related to Heath Fielding's allegedly tortious conduct, plaintiffs sufficiently pleaded facts (see, Peterson v Spartan Indus., 33 N.Y.2d 463) showing jurisdiction under CPLR 302 (a) (1) and (2) (see, Reiner Co. v Schwartz, 41 N.Y.2d 648, 653; Travelers Indem. Co. v Inoue, 111 A.D.2d 686).
The fourth and fifth causes of action, alleging interference with contractual and fiduciary duties, should not have been dismissed as time-barred, since there was a factual question, not ripe for resolution at the pleading stage, as to whether the doctrine of equitable estoppel should apply (see, General Stencils v Chiappa, 18 N.Y.2d 125). Nevertheless, we affirm the dismissal of these causes of action, as well as the first and sixth (fraudulent concealment and commercial bribery), for failure to state a cause of action, since plaintiffs' allegations are insufficient to show that defendants Heath Fielding and Hall Mexico owed them any fiduciary duty (Philan Ins. v Hall Co., 748 F. Supp. 190, 197), nor are these defendants alleged to have "conspired" with any entity who did, and since it is undisputed that plaintiffs' dishonest employee initiated his own misconduct without requiring any encouragement from these defendants (see, Click Model Mgt. v Williams, 167 A.D.2d 279, lv denied 77 N.Y.2d 805).
The motion by defendant Frank B. Hall Co. (the parent company) to dismiss the eighth cause of action, alleging negligence, was properly granted. Plaintiffs' allegations are insufficient to impose liability upon the parent for the alleged conduct of its subsidiary and the subsidiary's employee (Musman v Modern Deb, 50 A.D.2d 761, 762-763).
The motions by defendants Heath Fielding and Hall Mexico to dismiss the ninth cause of action, purporting to be for "indemnification", should have been granted, since plaintiffs do not claim to be liable for damages to third parties (Mas v Two Bridges Assocs., 75 N.Y.2d 680, 689-690). Instead, plaintiffs are claiming damages to themselves as a result of accepting unprofitable insurance business that they would not have accepted but for these defendants' alleged wrongful conduct. However, as there are no theories of liability still standing as against these defendants, the "indemnification" claim must accordingly fall as well. We therefore modify by dismissing the ninth cause of action against those defendants.
We perceive no basis warranting leave to plaintiffs to replead any dismissed causes of action (see, Mobil Oil Corp. v Joshi, 202 A.D.2d 318).
Concur — Sullivan, J.P., Wallach, Kupferman, Nardelli and Williams, JJ.