D&R Global Selections, S.L., Appellant,v.Bodega Olegario Falcon Pineiro, Respondent.BriefN.Y.May 2, 2017APL-2015-00319 New York County Clerk’s Index No. 603732/07 Court of Appeals STATE OF NEW YORK D&R GLOBAL SELECTIONS, S.L., Plaintiff-Appellant, against BODEGA OLEGARIO FALCON PINEIRO, Defendant-Respondent. >> >> BRIEF FOR PLAINTIFF-APPELLANT Robert Zara, Esq. ZARA LAW OFFICES Attorney for Plaintiff-Appellant 111 John Street, Suite 1810 New York, New York 10038 212-619-4500 Date Completed: April 5, 2016 To Be Argued By: Robert M. Zara Time Requested: 30 Minutes STATEMENT OF CORPORATE RELATIONSHIPS Appellant D & R GLOBAL SELECTIONS, S.L., is a closely held corporation with no parent companies, and no subsidiaries or affiliates. 2 TABLE OF CONTENTS TABLE OF AUTHORITIES ..................................................................................... 6 CONSTITUTION AND STATUTES .................................................................... 9 STATUTES ............................................................................................................. 9 OTHER AUTHORITIES ........................................................................................ 9 STATEMENT OF CORPORATE RELATIONSHIPS ...........................................10 I - PRELIMINARY STATEMENT .........................................................................11 II - QUESTIONS PRESENTED ..............................................................................14 III - PROCEDURAL HISTORY .............................................................................16 The early proceedings in the Trial Court ..............................................................16 The First Department’s December 1, 2011 Decision ............................................17 Respondent’s Summary Judgment Motion in the Trial Court ..............................17 The First Department’s May 14, 2015 Decision ..................................................19 Appellant’s Motion for Leave to Appeal to this Court .........................................19 IV - JURISDICTIONAL BASIS FOR APPEAL ....................................................20 V - STATEMENT OF THE CASE ........................................................................20 3 VI - ARGUMENT ...................................................................................................25 POINT I: Summary judgment should have never been granted to Respondent ..25 A. Respondent never showed the absence of triable issues of fact ..................25 B. The First Department used the wrong standard of review in deciding Respondent’s appeal of the Supreme Court’s August 21, 2013 Order .............30 POINT II: The First Department erred on the facts and the law in this case in interpreting and/or applying long-arm jurisdiction ..............................................34 A. The First Department overlooked that Respondent contracted to supply goods in New York within the meaning of CPLR § 302 (a) (1) .......................34 B. There is much more than an articulable nexus between the wine that Respondent contracted to supply to Kobrand in New York and Appellant’s commissions due therefrom. The latter stems from the former. .......................37 C. With respect to the “transact[ed] any business within the state” branch of CPLR § 302 (a) (1), the First Department overlooked clear evidence in the record that the parties' agreement was to be performed in New York, leading it to mistakenly conclude there was there was an insufficient nexus between Respondent’s promotional visits to New York and Appellant’s claim for commissions.......................................................................................................39 4 D. The First Department improperly credited Counsel for Respondent’s conclusory allegations that the Contract was performed in Spain ....................43 E. The First Department’s mistaken determination there was an insufficient nexus between Respondent’s promotional visits and Appellant’s claim for commissions, led it to erroneously conclude long-arm jurisdiction under the “transacting business” prong of CPLR § 302 (a) (1) was unavailable ............50 F. There is clearly at least an articulable nexus between the Respondent’s promotion of its wine in New York, and Appellant’s commissions originating from the sales that Respondent’s promotion generated .....................................52 POINT III: The First Department should not have dismissed Appellant’s claims without the benefit of jurisdictional discovery .....................................................59 POINT IV: The First Department’s Order stands in stark contrast with that of the Fourth Department in a similar case .....................................................................61 POINT V: The First Department’s should have not reached a determination of personal jurisdiction more adverse to Appellant than that in a previous order ....64 POINT VI: There is no undue hardship to Respondent who entered New York to transact business and which contracted with Kobrand to supply wine in New York ......................................................................................................................67 5 POINT VII: The First Department’s Decision eviscerates long standing principles of long-arm jurisdiction and may have major ramifications for industries servicing non-residents, including the real estate industry ..................69 POINT VIII: The First Department misapprehended that there is subject-matter jurisdiction under BCL § 1314 (b) (4) ..................................................................70 CONCLUSION ........................................................................................................70 6 TABLE OF AUTHORITIES CASES Alan Lupton Associates, Inc. v. Northeast Plastics, Inc., 105 A.D.2d 3 (4th Dep't 1984) ....................................................................................................... 35, 39, 61 Banco Ambrosiano, 62 NY2d at 74 .........................................................................69 Barrett v. Jacobs, 255 N.Y. 520 (1931) ...................................................................31 Braun v. Carey, 280 A.D. 1019 (3rd Dep't.1952) ....................................................31 Carmona v. Mathisson, 92 A.D.3d 492 (1st Dep't 2012) ........................................67 Chess v Chaudhry, 2013 N.Y. Misc. LEXIS 2680 (Sup. Ct. N.Y. Cty. 2013) ......42 Columbia Ribbon & Carbon Mfg. Co. v. A-1-A Corp., 42 N.Y.2d 496 (1977) ......47 Courtroom TV Network v. Focus Media, 264 A.D.2d 351 (1st Dep't 1999) ...........64 Dauman Displays, Inc. v. Masturzo, 562 N.Y.S.2d 89 (1st Dep't 1990) .................59 Farrell v GEICO Ins. Agency, Inc., 2012 N.Y. Misc. LEXIS 3772 ( Sup. Ct. Nassau Cty. 2012) ................................................................................................47 Fischbarg v. Doucet, 9 N.Y.3d 375 (2007) ...................................................... 50, 56 Forward Foods LLC v. Next Proteins, Inc., 21 Misc. 3d 1113(A) (Sup. Ct. N.Y. Cty. 2008) .............................................................................................................42 7 Goel v. Ramachandran, 111 A.D.3d 783, 788, 975 N.Y.S.2d 428 (2nd Dep't 2013............................ .........................................................................................60 Gyenes v Zionist Org. of Am., 169 AD2d 451, 452, 564 NYS2d 155 [1st Dept 1991] 7) ................................................................................................................69 Hirsch v. Morgan Stanley & Co., 239 A.D.2d 466 (2nd Dep't 1997) .....................47 JMD Holding Corp. v. Cong. Fin. Corp., 4 N.Y.3d 373 (2005); ............................47 Johnson v. Ward, 4 N.Y.3d 516 (2005) ....................................................... 22, 50, 56 Kenney v City of New York, 74 A.D.3d 630 (1st Dep't 2010) .................................66 Licci v Lebanese Can. Bank, SAL, 20 N.Y.3d 327 (2012).............................. passim Martin v. Cohoes, 37 N.Y.2d 162 (1975) ................................................................66 McGowan v. Smith, 52 N.Y.2d 268 (1981) ..................................... 17, 51, 52, 56, 63 Neville v Anglo Am. Mgt. Corp., 191 AD2d 240, 242-243, 594 NYS2d 747 [1st Dept 1993]) t 2012) ..............................................................................................69 Ostrov v. Rozbruch, 91 A.D.3d 147 (1st Dep't 2012) ..............................................25 Palo v. Principio, 303 A.D.2d 478, 479 (2nd Dep't 2003) ......................................47 Peterson v. Spartan Indus., 33 N.Y.2d 463(1974) ..................................................60 Professional Personnel Management Corp. v. Southwest Medical Associates, Inc. 216 A.D.2d 958, 628 N.Y.S.2d 919 (4 th Dept. 1995) .........................................46 Requa v. Holmes, 16 N.Y. 193 (1857) .....................................................................67 8 Roche v. Hearst Corp., 53 N.Y.2d 767 (1981) ........................................................47 Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223 (1978) .......................................47 Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957) .............. 25, 30 Silver v Great Am. Ins. Co., 29 NY2d 356, 361, 278 NE2d 619, 328 NYS2d 398 [1972]) .................................................................................................................69 Sirius Am. Ins. Co. v. SCPIE Indem. Co., 461 F. Supp. 2d 155 (S.D.N.Y. 2006)...35 Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409 (2001) ...........................59 SPCA of Upstate N.Y., Inc. v. American Working Collie Assn., 18 N.Y.3d 400 (2012) ...................................................................................................................56 Suffolk County Dep't of Social Servs. ex rel. Michael v. v. James M., 83 N.Y.2d 178 (1994) ............................................................................................................30 Trombley & Carrier Co. v. Seligman, 133 A.D. 525 ( 3rd Dept. 1909) ..................67 Warrington v. Ryder Truck Rental, Inc., 35 A.D.3d 455 (2nd Dep't 2006) ............47 Wilson v Dantas, 128 A.D.3d 176 (1st Dep't 2015) ............................. 50, 55, 56, 68 Winegrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851 (1985) ......................................25 Zuckerman v. New York, 49 N.Y.2d 557 (1980)................................... 25, 26, 47, 48 9 CONSTITUTION AND STATUTES STATUTES New York Business Corporation Law § 1314 (b) .......................... 18, 25, 29, 30, 70 New York Civil Practice Law and Rules § 301 .......................................................29 New York Civil Practice Law and Rules § 302 (a) (1) .................................... passim New York Civil Practice Law and Rules § 3211 .............................................. 59, 60 New York Civil Practice Law and Rules § 3212 .....................................................59 New York Civil Practice Law and Rules § 5501 (b) ...............................................20 New York State Constitution Article VI § 3 (a) ......................................................20 FOREIGN STATUTE Chapter 1 of Spanish Organic Law 5/1995 May 22 nd , of the Jury Tribunal .. .........68 OTHER AUTHORITIES McLaughlin, Supplementary Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, 1984-1985 Pocket Part, CPLR C308:2, p 172 .............................35 10 STATEMENT OF CORPORATE RELATIONSHIPS Appellant D & R GLOBAL SELECTIONS, S.L., is a closely held corporation with no parent companies, and no subsidiaries or affiliates. 11 I - PRELIMINARY STATEMENT The underlying action involves a contractual dispute between D & R GLOBAL SELECTIONS, S.L. (“Appellant”), a Spanish company that advises Spanish wineries on exporting wine to the US and facilitates relationships with US importers and distributors, and BODEGA OLEGARIO FALCÓN PIÑEIRO (“Respondent”), a winery located in Spain. Appellant and Respondent both hail from Galicia, an autonomous community located in Spain’s remote north-west. Therein in the Rias Baixas region of Galicia, Respondent produces a white wine with a rich, soft, peachy fruit character called Albariño that the Wall Street Journal has named the “4 th Best Wine in the World” [R: 398-402]. It is at the center of this Appeal. This case reaches the Court of Appeals after more than eight years of litigation, at both the Supreme Court and Appellate Division levels. Much of this time was spent in motion practice, and Respondent’s two (2) appeals to the Appellate Division, First Department. Essentially, this case is a contractual dispute between Appellant and Respondent. The dispute dates back to a March 2005 meeting at Respondent’s winery when the parties entered into an oral agreement that in the Complaint [R: 35-50] is referred to as the “Importer Sourcing Agreement”. The 12 commissions due to Appellant under that oral agreement are at the heart of this litigation. As Respondent wished to enter the US market with its Spanish Albariño wine, it sought out the services of Appellant to procure a US importer and distributor. Under the agreement, Appellant was to attempt to find such an importer and distributor agreeable to purchase Respondent’s wine, for import to and distribution in the United States. In turn, upon finding such a US importer and distributor, Respondent would pay Appellant commissions for each bottle of wine sold above a certain price target that Respondent sold to the importer: specifically, the parties agreed that Appellant would receive as commissions, the difference between the ex-cellar price of 4.80 Euros per bottle and the price paid per bottle by the importer [R-39]. Appellant held up its end of the bargain under the agreement; however, Respondent did not. This litigation ensued. Appellant, together with Respondent’s director as well as its marketing manager, traveled to New York to promote Respondent as a winery and the wine it produces. In May 2005, at a wine industry event known as the “Great Match” in New York, Appellant and Respondent introduced the wine to US wine importers and 13 distributors [R: 533, 660]. At the Great Match event, Kobrand Corp. (“Kobrand”), a national wine wholesaler and distributor based in New York, expressed interest in Respondent’s wine, and eventually decided to purchase it. On or about November 2005, Respondent began shipping sample cases of its wine directly to Kobrand [R: 536-537]. Following Kobrand’s kick-off launch of Respondent’s wine at the New York Ritz- Carlton Hotel in January 2006 which Respondent’s Director also attended [R-535], Respondent began selling its wine to Kobrand in earnest. Pursuant to the Importer Sourcing Agreement, Respondent paid Appellant 60,478.80 Euros in commissions [R-180]. These commission payments were based on sales of wine from Respondent to Kobrand through September 2006 [R-180]. In May 2007, Respondent emailed Kobrand that it had supposedly terminated its agreement with Appellant [R: 561-562]. Respondent never sent any termination notice to Appellant. Following the purported unilateral termination, Respondent ceased all communications with Appellant. Appellant commenced the within litigation in November 2007. 14 While the parties in this case agree on these basic terms of their agreement, there is disagreement on the term and the duration thereof. Appellant takes the position that Respondent unlawfully terminated their agreement, because thereunder Appellant was entitled to commissions for so long as Kobrand continued to purchase wine from Respondent [R-531]. Respondent seemingly contends that the term was for one (1) year only, and/or that the agreement was terminated by Respondent after one year [R- 63]. II - QUESTIONS PRESENTED 1. Did the Appellate Division’s First Department (“First Department”) employ the wrong standard of review when it overturned the denial of Respondent’s summary judgment motion, and effectively granted summary judgment on appeal, without requiring Respondent to show that there were no triable issues of fact? 2. Did the First Department err when it effectively failed to consider jurisdiction under the “contracts anywhere to supply goods or services in the state” branch of CPLR § 302 (a) (1), when in fact Respondent had conceded it did in fact, contract with New York distributor Kobrand to supply wine in the state. 15 3. Did the First Department incorrectly interpret and/or apply New York Civil Practice Law and Rules (CPLR) § 302 (a) (1) in finding that there was no substantial relationship between Appellant’s claim for commissions and Respondent’s transaction of business in New York? 4. Did the First Department err when it effectively held that a non-domiciliary that enters our State to purposefully engage in marketing activities, and does so engage in our State, is not amenable to CPLR § 302 (a) (1) long-arm jurisdiction pertaining to claims for commissions on the non-domiciliary 's sales within our State? 5. Given Appellant’s cross-motion for jurisdictional discovery, did the First Department apply the wrong standard in reviewing Respondent’s summary judgment motion for lack of jurisdiction: plaintiff need not make a prima facie showing of jurisdiction, but instead need only demonstrate that facts may exist to exercise personal jurisdiction over the defendant. 6. Did the First Department err in reaching a different determination of long-arm jurisdiction as it did in its previous Order, when if anything the evidence 16 supporting long-arm jurisdiction in this Record was even stronger than that in the previous Record? By denying Appellant leave to reargue the First Department’s May 14, 2015 Order, and denying Appellant the alternative relief of Leave to Appeal to this Court, the First Department ruled on these questions in the negative. Appellant contends that the First Department’s rulings were erroneous. III - PROCEDURAL HISTORY The early proceedings in the Trial Court This action was commenced on or about November 9, 2007 in the New York County Supreme Court (“Trial Court”). Respondent initially failed to answer or otherwise appear in the action. On June 4, 2008, Appellant obtained a default judgment against Respondent which Judgment, following an inquest, was filed on November 12, 2009 [R: 304-310]. On or about February 1, 2010, following Appellant’s Restraining Notice to Kobrand [R: 315-319], Respondent moved to vacate the default judgment, and also to dismiss the action for lack of personal and subject-matter jurisdiction. The Trial Court (by the Hon. Marylin G. Diamond) denied both [R: 128-130]. 17 The First Department’s December 1, 2011 Decision On or about June 2, 2010, Respondent appealed to the First Department. On December 1, 2011, it vacated the default judgment against Respondent. However, it ruled that “… [Respondent] is not entitled to dismissal of the action for lack of personal jurisdiction” [R-346]. Regarding personal jurisdiction under CPLR § 302 (a) (1), the First Department elaborated that “of course for jurisdiction to exist, there must be an ‘articulable nexus’ between the cause of action and Respondent’s New York business transactions (McGowan v Smith, 52 NY2d 268, 272 [1981]). But, particularly considering the parties' dispute regarding the terms of their oral contract, such a nexus may be established here.” [R-345]. Respondent’s Summary Judgment Motion in the Trial Court Respondent, on or about August 2, 2012, moved the Trial Court this time for summary judgment, on the grounds that there were no genuine facts in dispute as to the lack of personal and subject matter jurisdiction. On or about March 27, 2013, the Trial Court (by the Hon. Manuel J. Mendez) denied Respondent's motion as to lack of personal jurisdiction, holding that “the Issue has been decided by the Appellate Division that this matter should not be dismissed for lack of personal 18 Jurisdiction” [R-10]. The Trial Court however granted Respondent’s motion for summary judgment as to lack of subject matter jurisdiction [R-11]. Upon Appellant's motion for re-argument, the Trial Court (by the Hon. Manuel J. Mendez) reversed its prior grant of summary judgment. By Order dated August 21, 2013, the Hon. Mendez concluded that he had “erroneously decided the motion as one to dismiss, for lack of personal jurisdiction and for lack of subject-matter jurisdiction, and applied the wrong standard in deciding the motion” [R-7]. The Trial Court held that “the issue has been decided by the Appellate Division that this matter should not be dismissed for lack of personal jurisdiction” [R-8]. And as to subject-matter jurisdiction, which, because it was predicated on New York Business Corporation Law (BCL) § 1314 (b), depended on personal jurisdiction, the Trial Court further held: “there are issues of fact which preclude the granting of summary judgment as to whether this court has subject-matter jurisdiction over this claim. This claim may be maintained and subject-matter jurisdiction obtained under BCL § 1314 (b) (4) and (5)”[R-8]. 19 The First Department’s May 14, 2015 Decision Respondent again appealed to the First Department. By Decision and Order dated May 14, 2015 (“May 2015 Order”), the foregoing appeal resulted in the reversal of the August 21, 2013 Order. With respect to jurisdiction under CPLR § 302 (a) (1), the May 2015 Order found that “Defendant’s [Respondent’s] visits to New York to promote its wine constitute the transaction of business here.” [R-763]. However, it stated that “there is no substantial nexus between Appellant’s claim for unpaid commissions in connection with the sales of that wine,” id. On June 15, 2015, Appellant moved for re-argument of the May 2015 Order, and in the alternative, for Leave to Appeal to this Court. Without stating the reasons thereof, the First Department denied both in its Decision and Order dated August 25, 2015 [R-765]. Appellant’s Motion for Leave to Appeal to this Court Thereafter Appellant moved this Court for Leave to Appeal under CPLR § 5602 (a) (1) (i) on October 19, 2015. On December 16, 2015, this Court granted Appellant Leave to Appeal [R: 760-761]. 20 IV - JURISDICTIONAL BASIS FOR APPEAL Appellant appeals to this Court from an Order of the First Department dated May 14, 2015, which reversed the Trial Court’s denial of Summary Judgment to Respondent [R: 762-764]. Appellant further appeals to this Court from an Order of the First Department dated May 14, 2015, which denied Appellant re-argument and leave to appeal to this Court [R-765]. This Court has jurisdiction over the case pursuant to CPLR § 5602 (a) (1) (i) and Article VI § 3 (a) of the New York State Constitution. This case originated in the Supreme Court, one of the courts specified in CPLR § 5602 (a) (1). This Court has jurisdiction to review the questions of law presented herein pursuant to CPLR § 5501 (b). V - STATEMENT OF THE CASE The prevalent issue in this Appeal, which also dominates this appeal, is that of long-arm jurisdiction over a foreign company, under the “transacted business within the state” branch CPLR § 302 (a) (1) as well as under the “contracts anywhere to supply goods or services in the state” branch thereof. And more specifically, the judicial interpretation to be given to our Legislature’s requirement 21 that a plaintiff’s cause(s) of action “arise from” the business that the non- domiciliary transacted in New York, or that a plaintiff’s cause(s) of action “arise from” the non-domiciliary’s “contract[s] anywhere to supply goods or services in the state.” It is Appellant’s position that in the case at bar, CPLR § 302 (a) (1) long-arm jurisdiction over Respondent exists under both branches of the Statute. And that whichever of the two branches is used to assert long-arm jurisdiction over Respondent, the facts in the case at bar satisfy the Statute’s requisite “arising from” requirement. Notwithstanding a prior finding by the Trial Court (by Hon. Diamond) that Respondent, by having contracted to ship wine to its distributor Kobrand in New York, had contracted to supply goods and services in New York rendering it amenable to CPLR § 302 (a) (1) long-arm jurisdiction [R-129], the First Department utterly disregarded the “contract[s] anywhere to supply goods or services in the state” branch of the Statute [R: 762-764]. With respect to CPLR § 302 (a) (1) “transacted business” branch, the First Department came to the conclusion that Appellant’s claims did not “arise from” from Respondent’s transaction of business in New York. The First Department 22 reasoned there was not a substantial nexus between the business Respondent transacted in New York on one hand, and Appellant's claims for commissions on the other [R-763]. It is respectfully submitted that this was a misguided interpretation of long-arm jurisdiction, based on the First Department’s overlooking of the facts in the Record and of applicable case law. First, in finding a lack of nexus between Respondent’s business transactions in New York and Appellant’s claims for commissions, the May 2015 Order cannot be reconciled with this Court’s interpretation of CPLR § 302 (a) (1) in Licci v Lebanese Can. Bank, SAL, 20 N.Y.3d 327 (N.Y. 2012). In that decision, this Court emphasized that “we have consistently held that causation [between Respondent's transaction in New York and Appellant's cause of action] is not required, and that the inquiry under the statute CPLR 302 (a) (1) is relatively permissive,” Licci, supra at 339. “The claim must in some way arguably [be] connected to the transaction,” Licci, supra at 340 (quoting Johnson v. Ward, 4 N.Y.3d 516, 520 [2005]). This foregoing standard this Court held in Licci, supra, is sufficient to satisfy the nexus requirement. 23 This Court in Licci further elaborated “But these standards connote, at a minimum, a relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former.” Id (footnote omitted, emphasis added). “[W]here this necessary relatedness is lacking … the claim [is] ‘too attenuated’ from the transaction” Licci, Id. In other words, the Respondent's transaction must not be "completely unmoored" from the Appellant's cause of action. In Licci, this Court further liberalized the Statute’s “arising out of” requirement by holding that not every element of the Appellant's cause of action must be related to the Respondent's New York contacts: it is sufficient if just one element arises from the contacts, Licci, supra at 341. “Yet CPLR 302 (a) (1) does not require that every element of the cause of action pleaded must [be] related to the New York contacts; rather where at least one element arises from the New York contacts, the relationship between the business transaction and the claim supports specific jurisdiction under the statute” Licci, Id. The May 2015 Order was also erroneous in other aspects. By reversing the Trial Court’s denial of summary judgment, the First Department effectively granted 24 summary judgment to Respondent. This was done despite the fact that Respondent had never sustained its burden of proof to extinguish even one of the many factual issues Appellant had raised to the Hon. Mendez [R: 116-123]. Respondent did not rebut any of them. Under the applicable standard of review for summary judgment motions, the First Department should have never effectively granted summary judgment to Respondent. Furthermore, the First Department determined personal jurisdiction differently than in its previous Order entered December 1, 2011 [R: 341-349] without there being additional or new evidence in the Record warranting its finding of lack of a “substantial nexus between Appellant’s claim for unpaid commissions … and [the Respondent’s] promotional activities [in New York].” On the contrary, if anything, the Record that was before the First Department in 2015 was stronger on evidence pointing to a “substantial nexus” than that which was before it back in 2011. The First Department misinterpreted and/or misapplied the law and the Record. Moreover, the First Department misapprehended that there is subject matter jurisdiction under BCL § 1314 (b) (4). 25 Finally, there had been no jurisdictional discovery as the Trial Court’s Order dated August 21, 2013 (by Hon. Mendez) had mooted Appellant’s cross motion for jurisdictional discovery on the issue of personal jurisdiction [R: 77-127]. Absent jurisdictional discovery, the First Department should have drawn all reasonable inferences in Appellant’s favor and should not have concluded the parties’ agreement was to be performed in Spain. VI - ARGUMENT POINT I: Summary judgment should have never been granted to Respondent A. Respondent never showed the absence of triable issues of fact The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case, Zuckerman v. New York, 49 N.Y.2d 557, 562 (N.Y. 1980); Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (N.Y. 1957), Winegrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851, 853 (N.Y. 1985), Ostrov v. Rozbruch, 91 A.D.3d 147 (N.Y. App. Div. 1st Dep't 2012). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers, Winegrad, supra, at 853. 26 Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action, Zuckerman, supra, at 562. However, Respondent’s summary judgment motion papers [R: 29-76], did not even begin to make such a prima facie showing. In fact, Respondent’s motion did not refer once to the applicable standard for summary judgment; nor did it attempt to convince the Trial Court there were indeed no factual issues related to jurisdiction. In contrast, Appellant’s opposition to Respondent’s motion for summary judgment pointed out the following to the Trial Court: - That there was long-arm jurisdiction under CPLR § 302 (a) (1) over Respondent [R: 91-97]. - That Respondent had aggressively sought to bind its importer Kobrand to a Distribution Agreement. That to do so Respondent had 27 even sent a draft Distribution Agreement to Kobrand replacing Article Eleventh thereof by which the parties submitted to the jurisdiction of the Chamber of Commerce of Paris [R-472], with Respondent’s modified version by which the parties acquiesced to a New York jurisdictional clause. It stated: “Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement shall be brought in the Chamber of Commerce of New York, and each of the parties hereto consents to the jurisdiction of such body (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein.” [R-498] (Emphasis added). - That the record was replete with evidence that Respondent had in fact engaged in various promotional activities in New York and taken a multitude of steps to directly engage in commerce with New York [R: 97-113]. - That the record was replete with evidence that Respondent did solicit business in New York by telephone or other electronic means; that 28 Respondent itself actively marketed its wine to New Yorkers; and that it participated in various promotional activities in New York related to the contract [id]. See also the Affidavit of Erica Lage [R: 657-663]. - That the Affidavit of Appellant’s principal, Monica Duarte [R: 523- 656], extensively described the manner in which Respondent conducted business in New York, as well as the quality of Respondent’s contacts with New York, summarized in the undersigned’s Affirmation [R: 97-113]. - That Respondent had designed the English version of its website to attract English speakers, with some features to attract New Yorkers in particular [R: 100-105]. - That in the event the Trial Court somehow concluded Respondent had actually met its initial burden of setting forth evidentiary facts to demonstrate its entitlement to judgment as a matter of law- a burden which Appellant stressed Respondent had failed to satisfy- that there 29 were clearly triable issues of fact precluding the grant of Respondent’s summary judgment motion [R: 114-121], pertaining to jurisdiction under CPLR § 302 [R: 114-119]; as well as pertaining to jurisdiction under CPLR § 301 [R: 119-121]. 1 With respect to subject matter jurisdiction, Appellant pointed out that summary judgment for lack of subject matter jurisdiction based on BCL § 1314 should not be granted since there clearly existed material triable issues of fact as to whether Respondent was subject to CPLR § 302 long-arm jurisdiction [R: 122-124]. Appellant’s submissions before the Trial Court had clearly raised a number of factual issues pertaining to jurisdiction. Respondent never properly rebutted any of the said factual issues. In granting re-argument of Respondent’s summary judgment motion to Appellant, the Hon. Manuel J. Mendez recognized that the First Department had previously decided that the case should not be dismissed for lack of personal jurisdiction; and 1 While personal jurisdiction over Respondent under CPLR § 301 was raised at the Trial Court and Appellate level, it is not part of this appeal and will therefore not be addressed herein. 30 that facts existed that precluded summary judgment as to subject matter jurisdiction and that the claim may be maintained under BCL § 1314 (b) Subsections (4) and (5). “The issue has been decided by the Appellate Division that this matter should not be dismissed for lack of personal jurisdiction. There are issues of fact which preclude the granting of summary judgment as to whether this court has subject matter jurisdiction over this claim. This claim may be maintained and subject matter jurisdiction obtained under BCL §§ 1314 (b)(5) and(5).” [R-8]. Thus under the circumstances, the First Department should have affirmed the Trial Court’s Order dated August 21, 2013 [R: 6-8]. B. The First Department used the wrong standard of review in deciding Respondent’s appeal of the Supreme Court’s August 21, 2013 Order In a summary judgment motion, issue finding, rather than issue determination, is its function, Suffolk County Dep't of Social Servs. ex rel. Michael v. v. James M., 83 N.Y.2d 178, 182 (1994) citing Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957). This drastic remedy should not be granted where there is any doubt as to the existence of such issues (Braun v. Carey, 280 A.D. 1019 [3 rd Dept. 1952]), or where the issue is "arguable" (Barrett v. Jacobs, 255 N.Y. 520 [ 1931]); see also Sillman v. Twentieth Century-Fox Film Corp., supra. 31 Essentially, when the Appellate Division reviewed Respondent’s appeal from the Supreme Court’s Order denying summary judgment, it engaged in issue determination, not in issue finding. It was called upon to decide whether Respondent should be granted summary judgment on the ground that no triable issues of fact existed as to personal and subject matter jurisdiction. However, in its May 2015 Order, the Appellate Division instead engaged in a narrow analysis of the “transacts any business within the state” branch of CPLR § 302 (a) (1) long- arm jurisdiction over out of state defendants [R: 762-764]. Not only was its analysis fraught with factual errors such as, ignoring the fact of Respondent’s wine shipments to New York and characterizing the parties’ agreement as one “made and performed wholly in Spain” [R-763]), it also employed the wrong standard of review. The First Department should have determined whether Respondent was entitled to summary judgment in the first place. Given Respondent’s failure to show that it was so entitled, the First Department should have affirmed the Trial Court’s Order dated August 21, 2013. 32 Just to the contrary, the May 2015 Order reversed the Trial Court’s denial of Respondent’s summary judgment motion. The First Department thus effectively granted summary judgment in favor of Respondent. This was done without: (1) Respondent ever making the requisite showing for summary judgment, in the form of sustaining first its burden of proof as to the absence of material triable issues of fact; (2) Respondent extinguishing the material triable issues of fact pertaining to jurisdiction that Appellant had raised before the Trial Court; (3) The First Department determining that there were in fact no outstanding factual issues related to jurisdiction that would require a trial in this action; and (4) Appellant having had the benefit of jurisdictional discovery on the issue of long-arm and subject matter jurisdiction. In concluding that the Hon. Mendez had erred in ultimately denying Respondent’s summary judgment motion as to lack of personal (as well as subject-matter) 33 jurisdiction, the First Department effectively determined that were no triable issues of fact pertaining to: An “articulable nexus” or a “substantial relationship” between the business Respondent transacted in New York and the commissions Appellant sought in its Complaint; Respondent’s Contract with Kobrand to ship wine to New York, Respondent’s concession it had shipped wine to Kobrand notwithstanding [R: 129, 180]; An “articulable nexus” or a “substantial relationship” between the wine that Respondent shipped to Kobrand pursuant the foregoing contract; and Appellant’s commissions arising therefrom. This despite the fact that the undersigned’s Affirmation in Opposition to Respondent’s Summary Judgment Motion [R: 81-129], informed the Hon. Mendez of the open factual issues relating to long-arm jurisdiction pursuant CPLR § 302 [R: 114-119]. In fact, the First Department implicitly concluded that the Appellant’s four (4) causes of action, namely for breach of contract, quantum meruit, accounting, and 34 unjust enrichment had no nexus to Respondent’s contract with Kobrand to supply wine in New York; as well as no nexus to the business Respondent transacted in New York. As the Record demonstrates, nothing could be further from the truth [R: 91-113, 144-145, 147-180, 199-222, 523-557, 563-650, 656-660]. Thus, it is respectfully submitted that the First Department’s May 2015 Order effectively re- granting summary judgment to Respondent is an untenable result that this Court should now remedy. POINT II: The First Department erred on the facts and the law in this case in interpreting and/or applying long-arm jurisdiction A. The First Department overlooked that Respondent contracted to supply goods in New York within the meaning of CPLR § 302 (a) (1) In 1979, our legislature amended CPLR § 302 (a) (1) to permit the assertion of long-arm jurisdiction where a cause of action arises from a contract “to supply goods or services in the state,” without regard to where the contract was made (see L 1979, ch 252, § 1 [eff Sept. 1, 1979]). This amendment to CPLR § 302 (a) (1) was adopted to overcome the “mere shipment” rule under which jurisdiction was denied as to a non-domiciliary who was never physically present in the state and merely shipped goods into the state. The intention was to allow the New York 35 courts to exercise jurisdiction over a non-domiciliary who contracts outside the state to supply goods or services in New York even if the goods are never shipped or the services are never supplied in New York, so long as the cause of action arose out of the contract, Alan Lupton Associates, Inc. v. Northeast Plastics, Inc., 105 A.D.2d 3 (4th Dep't 1984) citing McLaughlin, Supplementary Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, 1984-1985 Pocket Part, CPLR C308:2, p 172; see also Sirius Am. Ins. Co. v. SCPIE Indem. Co., 461 F. Supp. 2d 155 (S.D.N.Y. 2006). Evidence of the sales and the shipments were in the record on appeal leading up to the First Department’s May 14, 2015 Order [R: 147-179, 609-612]. It had also been in the preceding record leading up to the First Department’s December 1, 2011 Order. Both the Trial Court and the First Department had recognized the fact of Respondent’s contracting to supply goods, i.e. wine, to New York [R: 129, 342]. Indeed, in its Order denying Respondent’s motion by Order to Show Cause to vacate the default judgment entered against Respondent [R: 130-132], the Trial Court (by Hon. Diamond) held that: “As the defendant [Respondent] has conceded, it did, in fact, contract with Kobrand to supply goods in the form of wine in the state.” [R-129]. (Emphasis added). 36 And in vacating vacated the default judgment against Respondent pursuant to its December 1, 2011 Order, the First Department had held that “Pursuant to the agreement, in May 2005, plaintiff [Appellant] introduced defendant [Respondent] to Kobrand Corp., a New York wine and liquor importer and distributor, and, beginning that November, with plaintiff’s assistance, defendant’s wine was shipped to Kobrand in New York.” [R-342] (Emphasis added). Clearly then as to the “contracts anywhere to supply goods or services to the state" basis of long-arm jurisdiction, the Statute’s first requirement that Respondent have “contract[ed] anywhere to supply goods or services to the state" was satisfied. However, in its May 2015 Order, the First Department's decision ignored the prior holdings and the clear evidence of Respondent having contracted to supply wine in New York. Instead the First Department focused entirely on the second basis of long-arm jurisdiction that CPLR 302(a)(1) affords, namely the “transact[ed] any business within the state”, branch of the statute. In so doing, the First Department completely ignored the clear jurisdictional base that Respondent's contract to ship to Kobrand in New York afforded. 37 B. There is much more than an articulable nexus between the wine that Respondent contracted to supply to Kobrand in New York and Appellant’s commissions due therefrom. The latter stems from the former As to the “contracts anywhere to supply goods or services to the state" source of long-arm jurisdiction, the Statute’s second requirement is satisfied as well: Appellant’s cause of action for commissions undoubtedly “arose from” Respondent’s contract “… to supply goods or services to the state", see Lupton, supra. In fact, Appellant’s claim (commissions on Respondent's sales to its New York distributor) and Respondent’s sales of wine to its New York distributor could hardly be more directly related than they are in the instant case: Appellant would not have been entitled to any commission payments but for the fact that Respondent sold its wine to Kobrand. Thus, at least with respect to the “contracts anywhere to supply goods or services to the state" basis of long-arm jurisdiction, the nexus between Respondent’s contract to supply wine to Kobrand on one hand, and Appellant’s claim for commissions stemming therefrom on the other, is exponentially stronger than this Court’s "not completely unmoored" standard in Licci, supra. 38 In the case at bar, through October 2, 2008, Respondent had sold about 135,582 bottles of Albariño wine to Kobrand, its New York based distributor for which it had invoiced Kobrand a total of 782,308.62 Euros [R-180]. Solely by reason of Respondent’s foregoing sales to Kobrand summarized in a Chart through October 2, 2008 only, Appellant was entitled to unpaid commissions of over 128,904.42 Euros, of which Respondent had paid Appellant 60,478.80 Euros only, or less than half [R-180]. Without the sale of Respondent's wine to Kobrand in New York, Appellant would not have been entitled to any commissions. As the Supreme Court held in its Order (Hon. Diamond) denying Respondent’s motion by Order to Show Cause to vacate the default judgment entered against Respondent [R: 128-130]: “It is well settled that even one instance of such activity in New York [one instance of a supply of goods to New York] is sufficient to create jurisdiction, whether or not the Respondent was ever physically present in the State, so long as that activity bears a substantial relationship to the asserted cause of action… Clearly the Appellant’s breach of contract claim against the Respondent arises from the Respondent’s contract with Kobrand to deliver wine to New York. Indeed, as already noted, the Appellant procured a New York wine importer for the sale of Respondent’s product in New York which entitled it to commissions 39 under its contract with the Respondent. Thus Appellant’s cause of action for Respondent’s alleged failure to pay those commissions bears a substantial relationship to, and arises directly from the Respondent’s transaction with Kobrand.” See Alan Lupton Assoc. v Northeast Plastics, 105 AD2d at 9.” (Emphasis added; internal citations omitted). [R-129] (Emphasis added). Indeed in the case at bar, unlike in Licci, there was in fact actual causation, at least as it pertains to the “contracting to supply goods to the state" branch of CPLR § 302 (a) (1) because Appellant’s agreement to sell wine to Kobrand in New York is the source of Appellant’s right to commissions. Absent the foregoing agreement to sell the wine, Appellant would not have been entitled to any ensuing commissions. C. With respect to the “transact[ed] any business within the state” branch of CPLR § 302 (a) (1), the First Department overlooked clear evidence in the record that the parties' agreement was to be performed in New York, leading it to mistakenly conclude there was there was an insufficient nexus between Respondent’s promotional visits to New York and Appellant’s claim for commissions In its May 2011 Order the First Department had stated: “… it is alleged, and not disputed that defendant’s [Respondent’s] representatives accompanied plaintiff [Appellant] to Kobrand’s promotional events for its Spanish wine portfolio in New 40 York City. Defendant later entered into its own exclusive distribution agreement with Kobrand …” [R-342]. This time around, the First Department used the mistaken fact unsubstantiated in the Record that the parties’ agreement was performed wholly in Spain to come to its conclusion that there was no long-arm jurisdiction over Respondent. The Record in multiple places clearly contradicts the First Department's assertion that the Importer Sourcing Agreement between the parties was “performed wholly in Spain.”[R-763]. For instance, Appellant’s Monica Duarte specifically swore in her Affidavit in Opposition to Respondent’s Motion for Summary Judgment, and in support of Appellant’s cross-motion that “Performance of D&R’s contract with Olegario [Respondent] was to be made in New York.” [R-529]. In that same Affidavit [R: 523-656], Ms. Duarte who swore she had “personal knowledge of the facts in this matter” [R-527], recited at length Appellant’s efforts in New York to fulfill its obligations under the agreement including the participation of Respondent’s 41 representatives at various events in New York, NY, to actively promote Respondent’s wine, including: The Great Match event [R-533]; The Solera Restaurant event [R-534]; and The kick-off event at the New York Ritz Carlton Hotel [R-535]. Erica Lage too, in her Affidavit recited the efforts of Respondent’s representatives to actively promote their wine to attendees at the Great Match event [R: 657-663]. Respondent chose not to submit a Reply Affidavit to controvert Appellant’s statement that the performance of the parties’ agreement was to be made in New York [R-593]; or for that matter to controvert any of Appellant’s sworn-to statements by Monica Duarte, or by Erica Lage. Moreover throughout the Complaint, Appellant cited instances of New York as the place of performance of the parties’ contract [R: 35-49]. 42 Thus there was no legitimate evidentiary basis supporting the First Department’s conclusion that the agreement between the parties was “made and performed wholly in Spain” [R-763]. As relating to the existence of personal jurisdiction over a defendant, the facts pleaded in the Complaint and affidavit should be construed in the light most favorable to the Appellant, Chess v Chaudhry, 2013 N.Y. Misc. LEXIS 2680 (Sup. Ct. N.Y. Cty. 2013) citing Forward Foods LLC v. Next Proteins, Inc., 21 Misc. 3d 1113(A) (Sup. Ct. N.Y. Cty. 2008). Based on the mistaken assumption that the oral Importer Sourcing Agreement was both entered into and performed in Spain, the First Department erroneously concluded “ […] However, there is no substantial nexus between Appellant’s claim for unpaid commissions in connection with the sales of that wine, pursuant to an agreement made and performed wholly in Spain, and those promotional activities […]”[R-763]. It was a significant error in the May 2015 Order to cite an agreement “made and performed wholly in Spain” as the reason for the absence of a substantial nexus 43 between Respondent’s activities in New York to promote its wine, and Appellant’s claims for unpaid commissions stemming from Respondent’s sale of that wine to Kobrand. D. The First Department improperly credited Counsel for Respondent’s conclusory allegations that the Contract was performed in Spain The Record did not include any evidence in admissible form that the Contract was to be performed in Spain. Yet, the First Department apparently took at face value Attorney Gleason’s (of Respondent’s Counsel Gleason & Koatz, LLP) unsubstantiated and conclusory allegations in Respondent’s Memorandum of Law [R: 63-76] that the Contract was to be performed in Spain. Therein, Attorney Gleason stated: “(iii) the Contract was not only negotiated in Spain (at a kitchen table in defendant’s [Respondent’s] winery) but wholly performed in Spain (where defendant grew and harvested grapes, transformed them into wine and shipped them). Falcon Affidavit, ¶ 8.” [R-64]. 44 However evidently Attorney Gleason misconstrued ¶ 8 of the Falcon Affidavit, as it nowhere states the contract was “wholly performed in Spain.” Instead ¶ 8 thereof reads: “In 2005 Olegario [Respondent] agreed orally with D&R [Appellant] to pay D&R commissions for one year based on the volume of sales D&R could bring about for Olegario wines in the United States. The Agreement was made in Spain at Olegario’s winery.” [R-61]. How and why Attorney Gleason was able to stretch the foregoing sworn-to- statement to conclude that “the Contract was not only negotiated in Spain (at a kitchen table in Respondent’s winery) but wholly performed in Spain …”[R-64] remains to the undersigned a profound mystery. This was not a one-off mistake: the unsubstantiated allegation that the Contract was to be performed in Spain is repeated throughout Respondent’s Memorandum of Law [R: 64-65, 69]. Not content to misrepresent the Affidavit of its own witness, Attorney Gleason also stated to the First Department that the Complaint to actually alleged “… that the Contract was formed and performed in Spain” (Complaint ¶¶ 9-13). In fact, not at ¶¶ 9-13 nor anywhere else in the Complaint for that matter, is it alleged that the 45 parties’ Contract was to be performed in Spain. On the contrary, the Complaint alleges specific instances of the Contract’s performance in New York [R: 40, 42]. Nowhere in the Record did Attorney Gleason aver personal knowledge as to the Contract’s place of performance. Yet, and this without any evidentiary back-up from Respondent, Respondent’s Counsel repeatedly represented to the First Department that Spain (not New York) was the place of performance of the parties’ Agreement. Notwithstanding uncontroverted evidence in the Record pointing to New York as the Contract’s place of performance, the First Department mistakenly fully credited Attorney Gleason to the contrary. By the same token, the First Department inexplicably discredited not only the Complaint, but also the specific and unrefuted sworn-to allegations of Appellant’s Monica Duarte that averred knowledge of the facts. Ms. Duarte swore that New York was the contract’s place of performance [R-593]. 46 Not even Respondent’s two (2) Affidavits, by Ms. Oubiña [R: 60-62], or by Respondent’s Sales and Marketing Manager, Angeles Mosteiro [R: 185-190] ever recited that the contract was to be performed, or was actually performed, in Spain. In Respondent’s belated efforts to flatly deny that there was long-arm jurisdiction over Respondent, Attorney Gleason even managed to contradict himself: Respondent’s Memorandum of Law stated that “To the extent that sales, promotion and advertising occurred in New York, plaintiff and Kobrand were the sole actors in that regard” [R-68]. Respondent then likened the facts in the case at bar to those in Professional Personnel Management Corp. v. Southwest Medical Associates, Inc. 216 A.D.2d 958, 628 N.Y.S.2d 919 (4 th Dept. 1995) “All of the New York activities relating to the contract were performed by Plaintiff and cannot be attributed to the Defendant.” [R-69]. “Its [Olegario’s] only New York tie consists of the efforts of D&R and Kobrand” [R-68]. The Record contradicts Respondent’s foregoing statement. 47 Moreover Respondent’s foregoing statements clearly are contradictory: If the parties’ contract was indeed as Attorney Gleason alleged, “wholly performed in Spain” [R-64], then there can be no New York activities relating to the Contract, attributable to either of the parties. Yet Respondent’s Memorandum of Law insists that “Its [Olegario’s] only New York tie consists of the efforts of D&R and Kobrand” [R-68]. “An attorney's affirmation that is not based upon personal knowledge is of no probative or evidentiary significance” JMD Holding Corp. v. Cong. Fin. Corp., 4 N.Y.3d 373, 384, 385 (2005); Zuckerman v City of New York, supra at 563; Palo v. Principio, 303 A.D.2d 478, 479 (2d Dep't 2003); Hirsch v. Morgan Stanley & Co., 239 A.D.2d 466, 467, 657 (2d Dep't 1997); Warrington v. Ryder Truck Rental, Inc., 35 A.D.3d 455 (N.Y. App. Div. 2d Dep't 2006). Relying on this Court’s rulings in Zuckerman, Roche v. Hearst Corp., 53 N.Y.2d 767 (1981), Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223 (1978), and Columbia Ribbon & Carbon Mfg. Co. v. A-1-A Corp., 42 N.Y.2d 496 (1977), the Supreme Court of New York, Nassau County, held in Farrell v GEICO Ins. Agency, Inc., 2012 N.Y. Misc. LEXIS 3772 (Sup. Ct., Nassau County 2012) that 48 “at the outset, the Court acknowledges the fact that Appellant, himself, has failed to provide an Affidavit to the Court detailing his version of the events that took place with respect to the subject accident on July 20, 2008. The only version of Appellant’s account was provided by Appellant’s attorney in the "Memorandum of Law in Opposition to Respondent's Motion for an Order Pursuant to CPLR § 3001 Granting Declaratory Judgment for Respondent. Additionally, nowhere in said Memorandum of Law does Appellant's attorney even indicate what is the basis for the facts and information provided in same. The Memorandum of Law basically constitutes hearsay that is not even affirmed by counsel. Appellant relies solely upon the Memorandum of Law, signed, but not affirmed, by his attorney, who was obviously without personal knowledge of the facts. This does not supply the evidentiary showing necessary to successfully resist the motion. […] There is no representation made in the Memorandum of Law that the attorney has any personal knowledge of the relevant facts herein. Therefore, the Memorandum of Law is without evidentiary value or effect.” This Court held that “in the present instance, however, the attorney was not present at the comptroller's hearing, nor was anyone else on behalf of his client. As to that hearing the attorney was a total stranger.” See Zuckerman, supra at 563. 49 Likewise, Respondent’s counsel, Attorney Gleason, was a total stranger as to the place of performance of the parties’ Importer Sourcing Agreement. This is not the first time that the First Department inappropriately chooses to credit Respondent to Appellant’s detriment. Back in 2011, the parties were in the First Department when Respondent appealed the Hon. Diamond’s Order entered June 2, 2010 [R: 128-130]. The record back then (the “2011 Record”) included Ms. Duarte’s Affidavit that is reproduced in the Record hereof [R: 330-340]. In the said Affidavit, Appellant’s Ms. Duarte swore to Respondent’s multiple marketing visits to New York in the form of Respondent’s attendance, at the Great Match event [R-335], and at Kobrand’s Kick-Off event at the Ritz-Carlton [R: 334-335]. Yet, there too the First Department chose not to credit Plaintiff’s specific averment that the statement in Attorney Gleason’s Memorandum of Law that “Olegario contributed -no promotion- of its wines in New York. To the extent sales, promotion and advertising occurred in New York [,] plaintiff was the sole actor” was clearly inaccurate [R-336]. This led the First Department to state that “However, because it was not defendant, but plaintiff itself, that took action in New York, acting as defendant’s agent, it is necessary to consider the general rule 50 that ‘an agent may not rely upon his or her New York contacts on behalf of a principal to establish long-arm jurisdiction’ [Fischbarg v. Doucet, supra, at 383]” [R-344] (emphasis added). The Record clearly contradicted the First Department’s finding Defendant took no action in New York, a fact which the First Department clearly recognized in its May 2015 Order: “We find that defendant’s visits to New York to promote its wine constitute the transaction of business here ...” [R-763]. E. The First Department’s mistaken determination there was an insufficient nexus between Respondent’s promotional visits and Appellant’s claim for commissions, led it to erroneously conclude long-arm jurisdiction under the “transacting business” prong of CPLR § 302 (a) (1) was unavailable Both prongs must be met in order for personal jurisdiction to attach under this, the “transact[ed] any business within the state”, branch of the statute, Wilson v Dantas, 128 A.D.3d 176 (1st Dep't 2015) citing Licci v Lebanese Can. Bank, SAL, supra, at 334; Johnson v. Ward, 4 N.Y.3d 516, 519, ( 2005). Without any change in the 2015 Record so justifying it, the First Department went from refusing to dismiss the case for lack of an articulable nexus in its December 1, 2011 Order: “of course for jurisdiction to exist, there must be an ‘articulable nexus’ between the cause of action and defendant’s New York business 51 transactions (McGowan v Smith, 52 NY2d 268, 272 [1981]). But, particularly considering the parties' dispute regarding the terms of their oral contract, such a nexus may be established here. We need not rule definitively on that point in this context; we need only hold that defendant is not entitled to dismissal of the action for lack of personal jurisdiction” [R: 345-346]. To stating in its May 2015 Order: “However, there is no substantial nexus between plaintiff’s claim for unpaid commissions in connection with the sales of that wine, pursuant to an agreement made and performed wholly in Spain, and those promotional activities (see McGowan, 52 NY2d at 268.” [R-763]. The First Department’s mistaken finding there was no substantial nexus between Respondent’s activities in New York to promote its wine, and Appellant’s claims for unpaid commissions stemming from Respondent’s sale of that wine to Kobrand, led it to improperly conclude that long-arm jurisdiction under the transacting business in New York prong of the Statute was unavailable. 52 F. There is clearly at least an articulable nexus between the Respondent’s promotion of its wine in New York, and Appellant’s commissions originating from the sales that Respondent’s promotion generated With respect to the “transacted business within the state” branch of the statute, it is only the second requirement - whether Appellant’s claims arose from Respondent’s transaction of business in New York- that is truly at issue on this appeal. In explaining why it found that no substantial relationship existed between Appellant’s claim for unpaid commissions and Respondent’s transaction of business in New York, the May 2015 Order relied on the Court of Appeals’ decision in McGowan v. Smith, 52 N.Y.2d 268 (1981). Respectfully, this reliance is misguided, as the McGowan case is distinguishable from the present case: In McGowan, the Respondent corporation made visits to New York “for the purpose of doing general marketing research,” id at 272. The McGowan decision found that “these visits certainly may be characterized as ‘purposeful,’ but were not shown to bear a substantial relationship to the transaction out of which the instant cause of action arose,” id at 272. Clearly the marketing research trips to New York of Mogi Trading Company’s representatives, the Japanese fondue pot exporter, 53 bore at best a tangential relationship to the personal injuries the infant plaintiff sustained in Ontario, Canada, when the fondue pot purchased from a Department Store in Buffalo, NY, malfunctioned, id at 271-272. In the instant case, Respondent's representatives’ visits to New York were of a different nature. They were specifically undertaken to promote Respondent’s Albariño wine at major wine industry events in New York. Respondent’s promotional activities in New York to Kobrand and to its national network of wine distributors, in turn generated or contributed to generate significant sales of Respondent’s wine to Kobrand (for resale to its national network of wine distributors). Appellant’s right to commissions directly emanate from said sales. Respondent participated in these promotional events in furtherance of the contract between Respondent and Appellant, and to sell its wine to Kobrand and to its national network of wine distributors, the source of Appellant’s commissions. Appellant’s claim for commissions at the very least undoubtedly bore an “articulable nexus” to Respondent's promotion of its wine while in New York. Respondent’s promotional visits are what the First Department qualified as Respondent’s transaction of business in New York. 54 This Court in Licci v Lebanese Can. Bank, SAL, supra, relaxed the standard for the “arising from” requirement of CPLR § 302 (a) (1). In response to the United States District Court Second Circuit's certified questions on the scope of CPLR § 302 (a) (1), the Court explained that a foreign bank's use of a New York correspondent account to execute numerous wire transfers is sufficiently purposeful conduct to constitute a “transaction of business”, and that the allegations contained in the complaint, establish the requisite “nexus” or “relationship” between the foreign bank's New York business activity and the Appellants' claims to support the exercise of personal jurisdiction under the long-arm statute. This Court emphasized that there need not be causation: “CPLR 302(a)(1) does not require that every element of the cause of action pleaded must be related to the New York contacts; rather, where at least one element arises from the New York contacts, the relationship between the business transaction and the claim asserted supports specific jurisdiction under the statute.” (Id. at 341, 984 N.E.2d at 901, 960 N.Y.S.2d at 703). As to the necessary degree of a nexus or relationship, the Licci Court stated that there needs to be "at a minimum, a relatedness between the transaction and the 55 legal claim such that the latter is not completely unmoored from the former, regardless of the ultimate merits of the claim" Id. at 340, 984 N.E.2d at 901, 960 N.Y.S.2d at 702. Clearly the Appellant’s right to commissions on the sale of Respondent’s wine in New York cannot be said to be completely unmoored from the Respondent’s promotional activities in New York to foster such sales. Thus, in light of the current permissive interpretation of the “arising from” requirement of CPLR § 302 (a) (1), the First Department clearly erred in finding "no substantial nexus" between Appellant's commission claims on one hand, and Respondent's promotional activities in New York to sell its wine (Respondent’s “transacting of business”). The First Department itself in Wilson v. Dantas, supra at 184, recognized “just how permissive the [“arising from”] standard [that this Court articulated in Licci] is, when it [this Court] found personal jurisdiction over a defendant bank that allegedly transferred money from a New York correspondent account to a foundation that used the money to finance rocket attacks in a foreign country (id at 340-341). Although the plaintiffs' cause of action for breach of statutory duties arose indirectly from the defendant bank's New York contacts -because "the 56 specific harms suffered by plaintiffs flowed not from [the bank's] alleged support of a terrorist organization, but rather from rockets"- the Court found that the bank's deliberate and frequent use of a New York account "to effect its support of [the foundation] and shared terrorist goals" satisfied CPLR 302(a)(1) because "at least one element [of plaintiff's claim arose] from the New York contacts" (see id.). Accordingly, the plaintiffs' claim was not “too attenuated ’from the transaction, or merely coincidental' with it" (id. at 340, quoting Johnson, 4 NY3d at 520).” See Wilson, supra, at 184. This Court has interpreted the nexus limitations as an insurance barrier inherent to the concept of long-arm jurisdiction, to ensure that the cause of action is not “too diluted” from the transaction, SPCA of Upstate N.Y., Inc. v. American Working Collie Assn., 18 N.Y.3d 400, 404 (2012) , or that the relationship between the two is neither “too attenuated,” Johnson, supra at 520, nor simply “tangential.” Fischbarg, supra at 384. Thus, the said nexus limitations require “some articulable nexus” between the two, McGowan, 52 N.Y.2d at 272 (emphasis added). Causation per se is not required, either in the statute CPLR § 302 (a) (1) itself, or in this Court’s interpretation thereof. 57 It follows that causation, or even a strict relationship, is not required; rather, something akin to a connection between the claim of the Appellant and the transaction of the Respondent is required. Said connection is more than demonstrably present here. Indeed the absence of the word “caused by” in the Statute itself reflects our Legislature’s intent not incorporate a causation requirement to the application of the Statute. The drafters of CPLR § 302 (a) (1) could easily have inserted the words “caused by” in lieu of the Statute’s “arising from.” They did not, because their intention was that the cause of action merely originates from the business Defendant transacted in New York. All four (4) causes of action hereof clearly do, [R: 33-50]. Turning to the “transacting business” branch of CPLR § 302 (a) (1), the marketing trips to New York by Appellant and Respondent's representatives, too satisfy the Statute’s relaxed “arising from” requirement, as they were made in furtherance of the Importer Sourcing Agreement: first, to assist Respondent in finding a New York distributor for Respondent to sell to (in the case of the Great Match event); and once Kobrand materialized, the Respondent’s marketing trips were made in furtherance of 58 the Importer Sourcing Agreement to promote the wine, to Kobrand’s existing network of distributors (the Ritz Carlton Kick-Off event). There is also an “articulable nexus” substantial relationship between Appellant’s claim for commissions and the marketing visits by Respondent. The record makes clear that Appellant’s claims for unpaid commissions easily meet this Court’s relaxed threshold as set forth in Licci, supra, that said claims “in some way [be] arguably connected to the transaction” See Licci, supra at 340: to a far greater extent than the Licci Plaintiffs’ significant injuries from Foreign Terrorist Organization Hizballah’s 2 rocket attacks resulted from Lebanese Canadian Bank’s transactions in New York, Appellant’s claims for unpaid commissions resulted from the Respondent’s promotional trips to New York to generate the sales. Absent said sales, Appellant would have not have been entitled to any commissions from the sales of Respondent’s wine that Respondent’s promotional trips to New York helped generate. 2 A Foreign Terrorist Organization (FTO) is one that is designated by the Secretary of State as such, in accordance with section 219 of the Immigration and Nationality Act (INA), as amended. As of 10/08/1997 our State Department has so designated Hizballah http://www.state.gov/j/ct/rls/other/des/123085.htm 59 POINT III: The First Department should not have dismissed Appellant’s claims without the benefit of jurisdictional discovery Appellant’s cross-motion had sought in the alternative discovery on the issue of jurisdiction pursuant to CPLR § 3212 (f), which the First Department apparently overlooked [R: 77-78]. The undersigned has found no case where this Court ruled on jurisdictional discovery in the context of a CPLR § 3212 Summary Judgment Motion. However, in the context of a CPLR § 3211 Motion to Dismiss, this Court has held “On a motion to dismiss pursuant to N.Y. C.P.L.R. 3211, the New York Court of Appeals accepts as true the facts as alleged in the complaint and submissions in opposition to the motion, accords Appellants the benefit of every possible favorable inference, and determines only whether the facts as alleged fit within any cognizable legal theory” Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409 (2001). In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the non-moving party and should not pass on issues of credibility, Dauman Displays, Inc. v. Masturzo, 562 N.Y.S.2d 89 (1st Dept. 1990). 60 Moreover, this Court has held that where plaintiff has made “a sufficient start” in opposition to a motion to dismiss for lack of personal jurisdiction, it is entitled to jurisdictional discovery under CPLR § 3211 (d), Peterson, id at 467. In such a case, "[a] prima facie showing of jurisdiction [...] simply is not required and in actual practice, even assuming a workable definition, may impose undue obstacles for a plaintiff, particularly one seeking to confer jurisdiction under the 'long arm' statute", Peterson v. Spartan Indus., 33 N.Y.2d 463, 467 (1974). See also Goel v. Ramachandran, 111 A.D.3d 783, 788, 975 N.Y.S.2d 428 (2nd Dep't 2013): Where the plaintiff opposes a motion to dismiss [...] on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiff need not make a prima facie showing of jurisdiction, but instead need only demonstrate that facts may exist to exercise personal jurisdiction over the defendant. Appellant has amply satisfied this burden: the unrefuted sworn to statements, in Appellant’s Affidavits in opposition to Respondent's motion for Summary Judgment [R: 523-663] together with the balance of Appellant’s opposition papers undoubtedly so demonstrate. 61 Respectfully, if this Court is prepared to correct neither the First Department’s blatant disregard of Respondent’s contract to supply wine in New York, nor to overrule its apparent determination that Respondent’s claims for commissions is completely unmoored from Appellant’s transaction of business in New York, it should at least remand this action to the Trial Court for jurisdictional discovery pertaining to the particulars of Respondent’s visits to New York, followed by a Hearing to determine whether or not the same are completely unmoored from Appellant’s claims for unpaid commissions. POINT IV: The First Department’s Order stands in stark contrast with that of the Fourth Department in a similar case Furthermore, by denying that there was any “substantial nexus” between Appellant’s claim for commission and Respondent’s business transactions in New York, the May 2015 Order cannot be reconciled with Alan Lupton Assoc., Inc. v. Northeast Plastics, Inc., supra. The Lupton case concerned a breach of contract action in which an out-of-state manufacturer was subjected to personal jurisdiction both under the "transacting business" branch, as well as under the “contracts anywhere to supply goods or services in the state” branch of the long-arm jurisdiction statute. The Fourth Department in Lupton found that the Respondent 62 had voluntarily availed itself of the privilege of transacting business in New York by shipping thousands of buttons to New York based on an order solicited by the Appellant pursuant to the contract. The May 2015 Order stands in stark contrast to the Fourth Department’s decision in Lupton: in Lupton, the court found a sufficient nexus between a Appellant’s claim for commissions for arranging for the sale of Respondent’s goods in New York, and a Respondent that had contracted to supply goods in New York State. Indeed, the Fourth Department held in Lupton, "[New York] courts may now exercise jurisdiction over a non-domiciliary who contracts outside this State to supply goods or services in New York even if the goods are never shipped or the services are never supplied in New York, so long as the cause of action, as here, arose out of that contract," id at 6. It concluded that it had jurisdiction over the non-domiciliary Respondent, not only by virtue of Respondent's shipping of goods to New York "based upon an order solicited by the Appellant pursuant to the contract as an act by which Respondent has voluntarily and purposely availed itself of the privilege of transacting business in New York State,” id at 7, but also because Appellant's claim for commissions was directly related to Respondent's business transaction: “Plaintiff has alleged that it arranged for the sale of 63 Defendant's products in New York which entitled it to commissions under the contract. Thus Plaintiff's cause of action for Defendant's alleged failure to pay those commissions bears a substantial relationship to, and arises directly from, the transaction of business by Defendant which Plaintiff has alleged in its complaint and Affidavit in opposition to defendant’s motion to dismiss” id at 9, citing McGowan v. Smith, supra at 272. The facts in the instant case are similar: the parties entered into an oral agreement in Spain, under which Appellant claims commissions for securing a distributor for Respondent in New York to which Respondent shipped significant quantities of wine. As in Lupton, Respondent purposefully availed itself of the privilege of transacting business in our State. As in Lupton, there is a direct connection not only between Appellant's claim for commissions and Respondent's contract to sell wine to Kobrand in New York; but also between Appellant's claim for commissions and the business that the First Department found the Respondent transacted here, namely “the defendant’s visits to New York to promote its wine,” [R-763]. Yet, in contrast to the Lupton decision, the First Department found in the instant case that there is "no substantial nexus between Appellant’s claim for unpaid commissions in connection with the sales of that wine." This discrepancy 64 between the two decisions is the more unfathomable given that in Courtroom TV Network v. Focus Media, 264 A.D.2d 351, 353 (1st Dep't 1999), the First Department cited Lupton, and stated: “Lupton Assocs. v Northeast Plastics (105 AD2d 3, 7) found jurisdiction under the ‘transacts any business’ test of CPLR 302 (a) (1) where, as here, the out-of-State Respondent contracted with the Appellant for the latter to perform commercial activities in New York for the Respondent's benefit.” Courtroom TV Network, at 353. Based on the foregoing, it is clear that the May 2015 Order erred in finding that no “substantial nexus” existed between Respondent’s business transactions in New York and Appellant’s claims for commissions. POINT V: The First Department’s should have not reached a determination of personal jurisdiction more adverse to Appellant than that in a previous order In its Order from December 1, 2011, while vacating the default judgment against Respondent, the First Department refused at the same time to dismiss the complaint for lack of personal jurisdiction. 65 The 2011 Record, as well as the 2015 Record, include a complete transcript of the Inquest held before the Hon. Diamond [R: 199-228]. Under oath and before the Trial Court, Ms. Duarte confirmed some of the events she attended in New York to promote Respondent’s wine, e.g. the Great Match [R: 207-208] and Kobrand’s Kick-Off event (at the Ritz-Carlton) [R-213]. The 2015 Record contained jurisdictional evidence pointing to CPLR § 302 (a) (1) long-arm jurisdiction, in the form of Ms. Duarte’s (Appellant’s principal) Affidavit testimony and the Exhibits thereto [R: 523-656] that was more extensive than that in the 2011 Record. The 2015 Record also contained Erica Lage’s Affidavit on Respondent’s promotional activities in New York [R: 657-663]. Additionally, this time around, the 2015 Record even included a page from the transcript of Respondent’s deposition (by Ms. Oubiña), confirming Roberto Falcón’s (her brother) attendance at Kobrand’s Kick-Off event at the Ritz-Carlton [R-767]. There is no dispute that it is the sale of Olegario’s wine (that Respondent’s representatives actively and repeatedly promoted at events in New York), which 66 entitled Appellant to its commissions at issue in this litigation. Yet, in its May 2015 Order, by which it reversed the Trial Court's denial of summary judgment to Respondent, the First Department switched gears. It stated: "We find that Respondent’s visits to New York to promote its wine constitute the transaction of business here [...] however, there is no substantial nexus between Appellant’s claim for unpaid commissions in connection with the sales of that wine, pursuant to an agreement made and performed wholly in Spain, and those promotional activities." [R-763]. Following the doctrine of the law of the case “when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co- ordinate jurisdiction are concerned,” Martin v. Cohoes, 37 N.Y.2d 162 (1975). An appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court, and forecloses a re-examination of the question, absent a showing of subsequent evidence or a change of law, Carmona v. Mathisson, 92 A.D.3d 492 (1st Dep't 2012) citing Kenney v City of New York, 74 A.D.3d 630 (1st Dep't 2010). 67 It is the duty of an appellate court to follow its decision in the same case on a subsequent appeal, and a prior decision should only be modified or qualified in cases of manifest error, Trombley & Carrier Co. v. Seligman, 133 A.D. 525 (3 rd Dept. 1909); Requa v. Holmes, 16 N.Y. 193 (1857). Faced with evidence on long-arm jurisdiction that was stronger than that which was in the Record before it back in 2011, the First Department erred when it changed its prior ruling on personal jurisdiction and altogether shut the door to CPLR § 302 (a) (1) long-arm jurisdiction. POINT VI: There is no undue hardship to Respondent who entered New York to transact business and which contracted with Kobrand to supply wine in New York There is no question Respondent has purposefully availed itself of the benefits of doing business in our State and has handsomely reaped the rewards thereof. Respondent derived substantial revenue from the sale of its wine in New York. Therefore, in connection therewith, it was or should have been foreseeable to Respondent it may be hauled into Court here. Respondent succeeded in New York in no small part because of Appellant’s strenuous efforts here on the ground to 68 source an importer, and promote Respondent’s wine. It is only fair that Respondent now answer to Appellant in New York. Moreover the Respondent has never moved the Trial Court to have this case tried in Spain. where both parties are from, on forum non-conveniens grounds. Appellant also notes that if tried in Spain, Appellant would be devoid of its right to have the facts hereof decided by a Jury: this case does not fall within any of the four categories of trials enumerated in Chapter 1 of the Spanish Organic Law 5/1995 as to which the Spanish Jury Tribunal shall have jurisdiction, Spanish Organic Law 5/1995 of May 22 nd , of the Jury Tribunal 3 . In Wilson, supra, the First Department stated: “Moreover, we perceive no undue hardship to defendants, who entered New York to transact business and continued to have contacts with New York entities during the performance of the contracts. Conversely, plaintiff notes that there is no right to a jury trial [188] in either Brazil or the Cayman Islands, thus causing a "potential hardship to plaintiff [ ] if [he is] required to litigate the matter in [a foreign jurisdiction] where there is no 3 http://www.boe.es/buscar/doc.php?id=BOE-A-1995-12095. 69 right to trial by jury" (Gyenes v Zionist Org. of Am., 169 AD2d 451, 452, 564 NYS2d 155 [1st Dept 1991]; see also Neville v Anglo Am. Mgt. Corp., 191 AD2d 240, 242-243, 594 NYS2d 747 [1st Dept 1993]). As such, defendants have not established the existence of "another forum 'which will best serve the ends of justice and the convenience of the parties'" (Banco Ambrosiano, 62 NY2d at 74, quoting Silver v Great Am. Ins. Co., 29 NY2d 356, 361, 278 NE2d 619, 328 NYS2d 398 [1972]).” Id at 187-188. POINT VII: The First Department’s Decision eviscerates long standing principles of long-arm jurisdiction and may have major ramifications for industries servicing non-residents, including the real estate industry The First Department’s May 2015 Order eviscerates long standing principles of long-arm jurisdiction under CPLR § 302 (a) (1). It would leave all types of New York agents and brokers at a distinct disadvantage when suing for commissions arising from their foreign clients' business transactions in this State. This for example, includes real estate agents dealing with foreign clients. Constrained to prove to prove a nexus between their claims for commissions and their non- resident clients’ “transaction of business” in New York substantially more potent than that in Lupton, supra, they may find their foreign high net worth individual clients more reluctant to pay their real estate or their other financial commissions. 70 This was neither our legislature’s intention, nor does it comport with this Court’s rulings on the subject. POINT VIII: The First Department misapprehended that there is subject- matter jurisdiction under BCL § 1314 (b) (4) There is subject matter jurisdiction in this matter pursuant to BCL § 1314 (b) (4) because there is personal jurisdiction under CPLR § 302 (a) (1) over Respondent. The Appellate Division’s May 2015 Order only mentioned subject matter jurisdiction in passing, stating that “[n]or is there subject matter jurisdiction under Business Corporation Law § 1314(b)(4), which depends on personal jurisdiction under CPLR 302.” It is respectfully submitted that with personal jurisdiction having been established over Respondent pursuant to CPLR § 302 (a) (1), it follows from that this action may be maintained under BCL § 1314 (b) (4). Finally Appellant would like to point out to this Court that February 25, 2010, and not 2009 is the correct date of Appellant’s Affirmation [R-246]. CONCLUSION Not only did Respondent concede that it did in fact, contract with New York distributor Kobrand to supply goods in the form of wine in the state [R-129]. As the 71 First Department ruled in its May 2015 Order, Respondent actually transacted business in New York. Moreover, the Record clearly reflects that in its contract with Kobrand from which the Appellant’s claims arise, the Respondent consented to a New York jurisdictional clause [R-498]. The Record is replete with evidence that Respondent not only solicited business in New York by in person, by telephone or other electronic means. The totality of Respondent's contacts with New York supports a finding that Respondent projected itself into New York to such an extent, that exercising jurisdiction over Respondent in the circumstances presented here would not be inconsistent with traditional notions of due process, fair play, and substantial justice. Whether examined through the prism of one or the other of the jurisdictional branches of CPLR § 302 (a) (1), Respondent's activities in New York and the sales of wine from Respondent to Kobrand formed the basis upon which Appellant earned its commissions. The Appellant’s causes of action are significantly more closely related to Respondent’s New York contacts than was the case in Licci, supra. 72 Respondent’s connection to New York is not merely coincidental, it is deliberate. Respondent deliberately sought out Appellant’s assistance to help them succeed in selling their wine New York. There is no question that each time Respondent sent its executives into New York, it did so with the express intent of doing business in our State. Each such visit to New York is enough to confer jurisdiction with respect to claims pertaining to commissions arising from the sales that such visits were expected to, and did foster. As the world’s preeminent center of international commerce, New York has a duty to protect its residents, and an interest in adjudicating disputes that originate within its borders. Should the First Department’s Order stand, judicial uniformity between the four (4) Departments with respect to the interpretation of CPLR § 302 (a) (1), the key jurisdictional statute to haul non-residents into a New York court, will be jeopardized. Moreover non-residents may find it easier evading their contractual commitments to New Yorkers: non-residents may refuse to pay them taking the position there is not a substantial nexus between the business they (non-residents) actually transacted here, and the New Yorkers’ claims arising therefrom; or between said 73 claims and the non-residents’ contracts to supply goods or services within our State. As a result, some New York Real estate brokers in the First Department for instance may find themselves short-changed of their commissions, while Lupton, supra, would presumably spare those in the Fourth Department the same fate. The long meanderings of this case through the Trial Court and the Appellate Division, and the contradictory opinions it produced, is emblematic of the sort of judicial turmoil that the interpretation of CPLR § 302 (a) (1) has generated, a result our Legislature surely did not intend when it enacted CPLR § 302 (a) (1). For all of the foregoing reasons, this Court should reverse the Order of the First Department dated May 14, 2015, and rule the Respondent is amenable to long-arm jurisdiction in the New York Supreme Court, and that the said Court has subject- matter jurisdiction. 74 Dated: New York, NY April 5, 2016 Respectfully submitted, _________________________ By: Robert M. Zara, Esq. Zara Law Offices Attorney for Appellant 111 John Street, Suite 1810 New York, NY 10038-3113 212-619-4500 Antje Gallant, Esq. and law clerk Béranger Rios (Fordham Law School L.L.M.) assisted with the preparation of this Brief.