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. >> >> REPLY 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: June 13, 2016 To Be Argued By: Robert M. Zara Time Requested: 30 Minutes i 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. ii TABLE OF CONTENTS Page STATEMENT OF CORPORATE RELATIONSHIPS .............................................. i TABLE OF AUTHORITIES .................................................................................... iv I. PRELIMINARY STATEMENT......................................................................... 1 II. ARGUMENT ...................................................................................................... 5 A. THERE WAS NO BASIS TO GRANT SUMMARY JUDGMENT IN FAVOR OF RESPONDENT ........................................... 5 B. THE FACTS AND THE LAW SUPPORT PERSONAL JURISDICTION OVER RESPONDENT .................................................. 18 1. Respondent’s confusion notwithstanding, it is beyond genuine dispute that Respondent transacted business in New York, CPLR 302 (a) (1) .............................................................. 19 2. Respondent’s wine sales and shipments to New York constitute “contracting anywhere to supply goods in New York” pursuant to CPLR 302 (a) (1) .......................................... 21 3. There is no support in the Record for Respondent’s contention that the contract between the parties was to be performed entirely in Spain ........................................................ 31 4. There is sufficient nexus between Respondent's contacts with New York and Appellant's claim for commissions, CPLR 302 (a) (1) ................................................................................. 34 5. Respondent does not refute that Appellant would not be entitled to a Jury Trial in Spain ..................................................... 39 C. APART FROM CITING CASES THAT HAVE LONG BEEN LEGISLATIVELY SUPERSEDED, RESPONDENT’S BRIEF IS REPLETE WITH CONTRADICTIONS AND FACTUAL ERRORS ................................... 40 iii D. INEXPLICABLY, RESPONDENT QUOTES AN OLD SUPERSEDED RECORD, AND THE RECORD DOES NOT SUPPORT SEVERAL OF RESPONDENT’S AVERMENTS ........................................................................................... 47 III. CONCLUSION ................................................................................................. 49 iv TABLE OF AUTHORITIES Page(s) Cases Alan Lupton Associates, Inc. v. Northeast Plastics, Inc., 105 AD2d 3, 482 NYS2d 647 (4th Dept. 1984) ................................... 22, 37, 38 Anderson Dev. Corp. v. Isoreg Cop., 154 AD2d 859, 546 NYS2d 720 (3rd Dept. 1989) ..................................... 27, 30 Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779 (2nd Cir. 1999) ...................................................................... 16-17 Cala v Luis De Ridder LTDA, S.A. 17 AD 2d 729, 232 NYS 2d 284 (1st Dept. 1962) ................................... 4, 36, 37 Cavalier Label Co. v. Polytam, 687 F.Supp.872 (SDNY 1988) .......................................................................... 28 Cleopatra Kohlique, Inc. v. New High Glass, Inc., 652 F. Supp. 1254; 1987 U.S. Dist. LEXIS 667 (EDNY 1987) ................. 26, 28 Columbus McKinnon Corp. v. China Semiconductor Co., Ltd., 1989 U.S. Dist. LEXIS 19294, 1989 WL 82455 (WDNY 1989) ..................... 31 DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81 (2d Cir. 2001) ................................................................................ 17 En Vogue v. UK Optical, 843 F. Supp. 838; 1994 U.S. Dist. LEXIS 1676 (EDNY 1994) ....................... 26 Foster Importing Co. v. Creative Food Imports, 1984 U.S. Dist. LEXIS 18647, 1984 WL 3657 (SDNY 1984) ...... 21, 27, 28, 29 George Reiner & Co. v Schwartz, 41 NY2d 648 (1977) ................................................................................... 35, 39 Gessler v. Sobieski Destylarnia S.A., 2010 U.S. Dist. LEXIS 71414 (SDNY 2010) ................................................... 26 v Greenky v. Irving Music, Inc., 1981 Copyright L.Dec. (CCH) 1981 WL 1370 (SDNY 1981) ......................... 29 Grimaldi v. Guinn, 72 AD 3d 37, 895 NYS2d 156 (2nd Dept. 2010) ............................................. 35 Island Wholesale Wood Supplies, Inc. v Blanchard Industries, Inc., 101 AD2d 878, 476 NYS2d 192 (2nd Dept 1984) ........................................... 30 Kramer v. Vogl, 17 N.Y.2d 27 ............................................................................................... 21, 22 Lamco Group v. Universal Life Ins. Co., 903 F. Supp. 612 (USDNY 1995) ..................................................................... 34 Laumann Mfg. Corp. v. Castings US, 913 F. Supp. 712; 1996 U.S. Dist. LEXIS 1626 (EDNY 1996) ....................... 26 Lunera Lighting, Inc. v. Nexus Light Drive, LLC, 2009 U.S. Dist. LEXIS 76510; 2009 WL 2824744 (NDNY 2009) .................. 16 McGowan v. Smith, 52 NY2d 268 (1981) ......................................................................... 4, 20, 22, 23 Merl v. Merl, 128 AD2d 685 (2nd Dept. 1985) ...................................................................... 10 Miller v. Dugan, 27 AD3d 429, 810 NYS2d 517 (2nd Dept. 2006) ............................................ 10 Roberts-Gordon LLC v. Pektron PLC, 999 F. Supp. 2d 476; 2014 U.S. Dist. LEXIS 19045 (WDNY 2014) ................................................................................................... 31 Robinson v. Intuit, Inc., 2010 N.Y. Misc. LEXIS 6846; 2010 NY Slip Op 33824(U) (Sup Ct, NY County 2010) ............................................................................... 30 Seaman v. Fichet-Bauche North America, Inc., 176 AD2d 793; 575 NYS2d 122 (2nd Dept. 1991) .................................... 27, 30 vi Sirius Am. Ins. Co. v SCPIE Indem. Co., 461 F Supp 2d 155 (SDNY 2006) .................................................................. 22 SPCA of Upstate N.Y., Inc. v. American Working Collie Assn., 18 NY3d 400 (2012) ...................................................................................... 35 St. Tropez Inc. v. Ningbo Maywood Indus. & Trade Co., 2014 U.S. Dist. LEXIS 96840; 2014 WL 3512807 [SDNY 2014] .................. 30 Talbot v. Johnson Newspaper Corp., 71 NY2d 827 (1988) ...................................................................................... 35 Torrioni v. UNISUL, Inc., 176 AD2d 623 (1st Dept 1991) ...................................................................... 30 Ulster Sci., Inc. v. Guest Elchrom Sci. Ag, 181 F. Supp. 2d 95; 2001 U.S. Dist. LEXIS 18426 (NDNY 2001). ................ 26 United States v. Am. Ry. Express Co., 265 U.S. 425 (1924) ....................................................................................... 15 Statutes 27 U.S.C. chapter 8, Federal Alcohol Administration Act ..................................... 12 BCL § 1314(b) ............................................................................................ 4, 36, 37 CPLR § 301 .................................................................................................... 1, 2, 7 CPLR § 302 .................................................................................................. 1, 7, 24 CPLR § 302(a)(1) .......................................................................................... passim CPLR § 3212[b] ...................................................................................................... 5 GCL § 225 ............................................................................................................ 37 Other Authorities Add, L 1961, ch 855, eff Sept 1, 1963 ..................................................................... 5 L 1963, ch 684, § 4, eff Sept 1, 1963 ...................................................................... 5 vii McLaughlin, 1979 Practice Commentary, CPLR C302:13 (McKinney’s Supp. 1983-84) ......................................................................... 22 Siegel, New York Practice 27 (Supp. 1982) .......................................................... 22 Chapter 1 of Spanish Organic Law 5/1995 May 22nd, of the Jury Tribunal 3 ..................................................................................... 39 www.iccwbo.org/products-and-services/trade-facilitation/incoterms- 2010/the-incoterms-rules/ ............................................................................... 25 1 I - PRELIMINARY STATEMENT In its Brief, Respondent would be expected to show to this Court that it was proper for the Appellate Division to do away with this case by granting summary judgment for lack of personal and subject matter jurisdiction. Yet, Respondent's Brief falls far short of these requirements, and fails on all fronts. First, Respondent’s Brief misstates the standard under which summary judgment would have been proper in this case. It was incumbent upon Respondent, as the proponent of summary judgment based on lack of personal and subject matter jurisdiction, to show before the Trial Court that no material issues of fact existed related to jurisdiction that would require a trial. Its motion papers were devoid of such showing. Appellant, on the other hand, fulfilled its burden in opposing the motion: its opposition to the motion raised a number of significant factual issues on jurisdiction, and set out a prima facie showing of jurisdiction. Summary judgment was improper in this case, and Respondent is unable to show otherwise. Second, Respondent's Brief contains abstruse, confusing and inaccurate arguments on personal jurisdiction. It confounds the requirement of being "present" in New York (a requirement of general jurisdiction under CPLR 301), with the requirements of long arm jurisdiction under CPLR 302 (which requires the defendant to transact business or contract to supply goods in New York). 2 Respondent still insists that as a foreign supplier of goods it was not "present" in New York and may not be sued here (Respondent’s Brief, page 17). This is irrelevant to the jurisdictional analysis, as CPLR 301 is not an issue on this appeal. Within the context of long arm jurisdiction, Respondent's Brief ignores that the Appellate Division had in fact found that Respondent transacted business under CPLR 302 (a) (1), and heedlessly argues that "[…] not all purposeful activity constitutes a 'transaction of business' within the meaning of CPLR 302 (a) (1) [...] We see here the complete opposite of a company's sustained activity which purposefully avails of the privilege of doing business in New York" (Respondent’s Brief, page 18). Contradictorily, Respondent inaccurately claims that it “did not have transactions in New York” (Respondent’s Brief, page 2) but then directly after states that “the First Department properly found that [the] promotional activities constituted the transaction of business here”, id. And again, completely detached from the facts and contrasting the First Department’s ruling that its conduct did constitute the transaction of business here, Respondent states “[i]t is undisputed that Respondent did not enter New York for any purpose, much less to transact business here.” (Respondent’s Brief, page 2). This statement is truly astonishing in light of the references in Appellant’s Brief to 3 the detailed extent of how Appellant had previously set forth Respondent’s activities here (Appellant’s Brief, pages 40-41). Respondent accuses Appellant of having created "wall[s] of fog" (Respondent’s Brief, page 8). In fact, it is Respondent who is attempting to put a smoke screen over the actual facts and issues. Interlaced into Respondent's Brief are a number of statements that are plainly inaccurate. As another example, reflected in the Record are copies of sixteen (16) of Respondent’s invoices to Kobrand 1 out of a total of seventeen (17) actual invoices (excluding the five (5) proforma invoices for samples and incidentals, infra at 11) from Respondent [R: 147-151, 153-154, 160, 162, 164-165, 167, 169, 173, 176, 178]. They prove that Respondent sold its Albariño wine to Kobrand Corp., a New York wine importer and distributor (“Kobrand”), for delivery to Kobrand in New York. Said seventeen (17) invoices are encapsulated in a Chart summarizing Respondent’s various shipments, Kobrand’s payments to Respondent, and Appellant’s commissions due therefrom [R: 180]. The foregoing Chart reflects sixteen (16) payments from Kobrand to Respondent directly, totaling 695,066.22 Euros [R: 180]. Actual copies of thirteen (13) of the Swift Funds Transfers from Kobrand’s account at JP Morgan Chase Bank, to Respondent’s Bank, Caja de 1 The Record includes a copy of another invoice from Respondent to Kobrand [R: 611]; however, since it is largely illegible, Appellant did not take it into account. 4 Ahorros de Galicia 2 , in Spain, are also part of the Record [R: 156-157, 159, 161, 163, 166, 168, 170, 172, 175, 177, 179, 612]. Nevertheless, Respondent has the audacity to state "Respondent has no relationship with Kobrand" (Respondent’s Brief, page 16). Then, in an apparent complete sea change, Respondent states later on in its Brief: “Kobrand accepted Respondent’s wine and distributed it after the termination of Respondent’s oral agreement with Appellant. […] The Kobrand invoices are dated in 2006, after the termination of Appellant’s oral agreement with Respondent.” (Respondent’s Brief, page 22). Last but not least, Respondent’s Brief relies strongly on case citations that are inapplicable or superseded by statute, including this Court’s McGowan v. Smith, 52 NY2d 268 (1981) which Respondent’s Brief chiefly relies on for the “mere shipment rule”. As this Court specifically recognized in McGowan, effective 1979, our Legislature’s amendment of CPLR 302 (a) (1), was made to “enable the courts of this State to exercise personal jurisdiction over nondomiciliaries who contract “anywhere to supply goods or services in the state” where the cause of action in issue arises out of the contractual relationship”, Id at 271, n. 2. Also effective September 1, 1963, Business Corporation Law (“BCL”) 1314(b) superseded Cala v Luis De Ridder LTDA, S.A. 17 AD 2d 729, 232 NYS 2d 284 (1 st Dept. 1962) on 2 In English, Galicia Savings Bank 5 subject matter jurisdiction. Add, L 1961, ch 855, eff Sept 1, 1963; amd, L 1963, ch 684, § 4, eff Sept 1, 1963. While Respondent’s Brief engages in twisting the facts and issues, and feigns incredulity that a Spanish company could be subjected to personal jurisdiction in New York, it fails to refute the main arguments brought by Appellant on this appeal: that there was no basis for summary judgment in this case, and that the facts and the law support long arm jurisdiction over Respondent under either of the two (2) branches of CPLR 302 (a) (1): the “transact[ed] any business within the state” branch (Appellant’s Brief, pages 39-58); or the “contract[ed] anywhere to supply goods or services to the state” branch, (Appellant’s Brief, pages 34-39). II - ARGUMENT A. THERE WAS NO BASIS TO GRANT SUMMARY JUDGMENT IN FAVOR OF RESPONDENT Respondent headlines its argument that Summary Judgment was properly granted by stating“First Department properly applied applicable law in reviewing Respondent’s summary judgment motion for lack of jurisdiction”, (Respondent’s Brief, page 3). Respondent further states that ‘To obtain summary judgment [sic, comma] it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment‘ in his 6 favor (CPLR 3212, sub [b], and he must do so by tender of evidentiary proof in admissible form.” id. Respondent’s Brief eventually then continues with the argument, that “[Summary Judgment] should be the end of this case. The facts are not in dispute; however much Appellant supposes they are not [sic, they are]. Respondent and Appellant are each a Spanish company. Respondent is a Spanish winery. Appellant, equally a Spanish company, offered to sell Respondent’s wine in the United States. An oral agreement was struck at the winery. It called for Respondent to pay Appellant commissions should it sell the wine. Commissions were paid in Spain in Euros to Appellant. Respondent has no offices in New York. Nor does it have employees, bank accounts or real estate in New York. The sale of the wine was completed and delivery made in Spain pursuant to the EXW rule. Appellant disputes none of these facts.” (Respondent’s Brief, pages 15-16). Respondent’s argument is misguided. First, there is no indication that the First Department’s Decision and Order dated May 14, 2015 (“May 2015 Order”) even considered the proper Summary Judgment standard, or as Respondent states “properly applied applicable law.” (Respondent’s Brief, page 3). Indeed, the May 2015 Order is devoid of any reference to Summary Judgment. The May 2015 Order does not even reflect that the First Department was called upon to review the 7 Trial Court’s denial of Respondent’s Summary Judgment Motion. To put it simply, there is no evidence whatsoever to support Respondent’s self-serving conclusion that “The First Department properly applied applicable law in reviewing Respondent’s summary judgment motion for lack of jurisdiction”, id. Second, Respondent does not dispute that in its Reply and Opposition papers to the Trial Court [R: 696 - 704] there was no effort to address the specific triable issues of fact pertaining to long-arm jurisdiction under CPLR 302 3 that Appellant had pointed out, and as Appellant had argued, precluded the grant of Respondent’s Summary Judgment Motion. Respondent never addressed, and much less rebutted, any of the said specific triable issues of fact (Appellant’s Brief, pages 26-29). Respondent’s “Memorandum of Law in Reply and Opposition to Plaintiff’s Opposition and Cross Motion” [R: 695 -703] simply stated “D&R’s voluminous papers fail to allege facts sufficient to defeat the Motion.” [R: 696]. Respondent did not challenge Appellant’s statement that “Respondent’s motion did not refer once to the applicable standard for summary judgment” (Appellant’s Brief, page 26). However Respondent’s Notice of Motion as well as its Memorandum of Law actually recited that the grounds for Respondent’s Summary Judgment Motion were that “there exists no genuine, material fact in dispute that 3 As well as under CPLR 301, which is not at issue in this Appeal. 8 this Court lacks in personam jurisdiction and subject-matter jurisdiction.”[R: 29, 64]. Appellant thus brings to this Court’s attention that its statement at page 26 of Appellant’s Brief that “Respondent’s motion did not refer once to the applicable standard for summary judgment” is incorrect, and apologizes to this Court and to Respondent for the oversight. Third, and most importantly, none of the allegedly undisputed facts that Respondent cited and now recites, preclude jurisdiction under either branches of CPLR 302(a)(1), the “contract[ed] anywhere to supply goods or services to the state” branch (Appellant’s Brief, pages 34-39); or the “transact[ed] any business within the state” branch (Appellant’s Brief, pages 39-58). This Court should not countenance Respondent’s statement of mostly uncontested facts that are irrelevant to a jurisdictional analysis under either branch of CPLR 302(a)(1), while disregarding Respondent’s failure to rebut or even address any of the triable issues of fact actually relevant to a proper CPLR 302(a)(1) jurisdictional analysis that Appellant had pointed out to the Trial Court [R: 114 - 119], supra at 7. Quite the contrary to what Respondent’s Brief states, Appellant did not simply “submit[ ] a conclusory statement of law disguised as a genuine issue of material fact (‘That there was long arm jurisdiction under CPLR 302(a)(1) over Respondent’) R. 91-97))”. (Respondent’s Brief, page 16): Appellant’s Affidavits to 9 the Trial Court related at length Appellant’s specific activities in New York to promote Respondent’s Wine, as well as those of Respondent’s representatives. Respondent’s representatives never controverted through Reply Affidavits, any of the sworn-to statements of Monica Duarte or of Erica Lage that pointed to long- arm jurisdiction under either branch of CPLR 302(a)(1) (Appellant’s Brief, pages 40-41). And certainly Appellant did not, as Respondent states “weave[ ] facts into a distorted scenario in the hopes the court will believe an un-signed ‘distribution agreement constitutes ‘aggressive’ conduct seeking to ‘bind its importer Kobrand to an agreement (emphasis added to show Kobrand is not an importer Respondent selected).” (Respondent’s Brief, page 16). In opposing Respondent’s Summary Judgment Motion to the Trial Court, the undersigned’s Affirmation laid out to the Trial Court the case for jurisdiction under each of the two (2) branches of CPLR 302(a)(1), with supporting facts as stated in the Affidavit of Appellant’s Monica Duarte and that of Erica Lage, the former buttressed by thirty (38) Exhibits (Exhibits A - Z, and Exhibits 1 - 12) [R: 561 - 656]. Monica Duarte’s Affidavit is at [R: 523 - 656]; that of Erica Lage is at [R: 657 - 661]. 10 Appellant also pointed out to the Trial Court, Respondent’s efforts in trying to get its Distributor Kobrand to sign a Distribution Agreement on terms acceptable to Respondent [R: 450 - 522]. Respondent does not refute it. Nor does Attorney Gleason explain why it is that Respondent itself had actually sent a draft Distribution Agreement to Kobrand specifically seeking a New York jurisdictional clause (Appellant’s Brief, pages 26-27). At least in its relationship with Kobrand, a relationship from which Appellant’s claims undoubtedly emanate, the Record shows that Respondent acquiesced to a New York jurisdictional clause, Id. Unable to otherwise deflect Respondent’s admission against interest, Respondent states a monumental misrepresentation. It alone, ought to give this Court pause. Respondent wrote: “Respondent has no relationship with Kobrand.” (Respondent’s Brief, page 16). That Respondent would submit a misrepresentation of this magnitude evidences a disrespect for the proceedings before this Court, and is symptomatic of the cavalier attitude displayed by Respondent throughout this litigation. “The purpose of an appellate brief is to assist, not mislead the court […] Counsel who mischaracterize events, fabricate issues, and rely upon matter dehors the record act in direct derogation of their professional obligations” Miller v. Dugan, 27 AD3d 429, 810 NYS2d 517 (2 nd Dept. 2006) citing Merl v. Merl, 128 AD2d 685 (2nd Dept. 1985). 11 So replete is the Record with evidence of Respondent’s relationship with Kobrand that Respondent’s outright misrepresentation is unfathomable. A partial recitation of the evidence in the Record puts Respondent’s statement “Respondent has no relationship with Kobrand” to rest. Respondent referred to “Kobrand’s importation and sale of Olegario wines in New York …” [R: 69] before the Trial Court; and further stated in the same Memorandum of Law [R: 63 - 76] that “[t]he relationship between Olegario, D&R, and Kobrand is insufficient to confer jurisdiction over Olegario.” [R: 69]; (emphasis added). Including Respondent’s three (3) sample shipments of Wine to Kobrand, [R: 569, 572 - 573], Respondent supplied a total of 120,564 bottles of its Albariño Wine to Kobrand in twenty (20) shipments [R: 180, 569, 572 - 573]; Including Respondent’s three (3) sample shipments of Wine to Kobrand, [R: 569, 572 - 573], Respondent invoiced Kobrand directly, twenty (20) times for wine [R: 180, 569, 572 - 573]; and additionally two (2) times for related incidentals, eg. wine labels, and art work [R: 570 - 571]. For its 120,564 bottles of Albariño wine that Respondent supplied to Kobrand, Kobrand paid Respondent directly, a total of 695,066.22 12 Euros through at least 4 sixteen (16) payment orders encapsulated in the Chart at [R: 180]; the Record includes copies of the thirteen (13) Swift Funds Transfer Confirmations to Respondent’s Bank account in Spain, supra at 3. For purposes of the Federal Tax and Tobacco Trade Bureau5, pursuing its appointment letter [R: 599] Respondent appointed Kobrand as “the primary american source of [its Wine] and the exclusive agent for its brand”; this is tantamount to appointing Kobrand its National Distributor. Appellant has every reason to believe Kobrand sent the foregoing letter to the US Treasury Department’s Tax and Tobacco Trade Bureau (TTB) to entitle Kobrand, a licensed importer and distributor, to import the alcoholic beverages in question into the United States. The undersigned counted thirty-nine (39) emails from Kobrand to Olegario [R: 391, 435, 436, 438-439, 440, 441-442, 443-444, 445- 4 The Record does not reflect whether Kobrand actually paid Respondent for its three (3) shipments of wine samples, or for its incidentals [R: 569 - 573]. 5 The Tax and Tobacco Trade Bureau (TTB) is an agency of the Treasury Department, which pursuant the Federal Alcohol Administration Act, 27 U.S.C. chapter 8 (FAA Act), and the Alcohol Beverage Labeling Act of 1988 (ABLA), regulates inter-alia the importation of alcoholic beverages into the United States. 13 447, 448, 449, 474-486, 561-562, 595, 604-605, 640, and 642-643, 644,645]. The undersigned counted forty-four (44) emails from Olegario to Kobrand [R: 391-392, 435-438, 440-443, 445-446, 448-458, 460- 473, 475- 476, 478-486, 522, 561-562, 595, 602, 604-606, and 614, 639-645]. The Record reflects that on December 3, 2007, Respondent’s International Sales and marketing Manager Mrs Angeles Mosteiro responded as follows to a Florida resident’s (Mr Francisco Robles) inquiry about the availability of Respondent’s wine in Florida: “Nuestro importador en EEUU es Kobrand Corporation, con sede en Nueva York. Te facilito una persona de contacto de Florida …” the English translation of which is: “Our importer in the USA is Kobrand Corporation based in New York, here are their contact details [for Kobrand’s distributor] in Florida …” [R: 391 - 392]. Last but not least, Respondent’s Export Manager Angeles Mosteiro’s name is splashed throughout Kobrand’s itinerary for its Spanish Supplier’s Kick-Off Tour [R: 620 - 638]. Aside from the fact that the Record totally discredits Respondent’s theory that “Respondent has no relationship with Kobrand”, this is the first time it was 14 advanced by Respondent: It is a novel argument that was not preserved for the instant appeal. This Court should thus disregard it, as it does not fall within any of the three (3) exceptions allowing this Court to entertain new legal arguments and theories raised on appeal (The New York Court of Appeals Civil Jurisdiction and Practice Outline, prepared by the Clerk’s Office, New York Court of Appeals, February 2011, pages 22-23, as reproduced in the NYCLA’s The Expert’s Guide to Appellate Practice: The Basics and Beyond, presented January 15, 2013). Respondent further misstates the Record by writing“Nor did Respondent, on its volition continue communications with the … customers here” (Respondent’s Brief, page 19), emphasis added. There is no question that Kobrand at all relevant times was Respondent’s sole New York customer. Appellant has discovered forty- four (44) emails from Respondent to Kobrand, supra at page 13. Thus to state and without pointing to any evidence in the Record that “Nor did Respondent, on its own volition continue communications with the … customers here” emphasis added, is plainly misleading as well. While Respondent’s Brief fails to elaborate on the significance of the word “continue” for its analysis on long arm jurisdiction, the fact that in the same sentence, Respondent quotes “invoking the benefits and protections of our laws” suggests that it refers to the transacted business in New York branch of CPLR 302 15 (a) (1). This is the more puzzling since absent a cross-appeal, Respondent cannot now challenge the First Department’s finding that Respondent’s visits to New York to promote its wine constitute the transaction of business here [R: 762]. It has been a long standing rule that an appellee must file a cross-appeal when he challenges the judgment below, United States v. Am. Ry. Express Co., 265 U.S. 425 (1924). Yet Respondent apparently is in agreement with the First Department’s foregoing holding “The Frist [sic, First] Department properly found that these promotional activities constituted the transaction of business here.” (Respondent’s Brief, page 2), emphasis added. Equally puzzling is Respondent’s statement “Respondent transacted no business in the State, other than promotional activities. Nor did it solicit business in New York, other than promotional visits. Appellant solicited customers on its own” (Respondent’s Brief, page 14). The statement that “Appellant solicited customers on its own” not only contradicts the prior statement that Respondent transacted business in New York, there is also no support for it in the Record. What the Record makes clear is that Respondent’s representatives travelled to New York to participate in several promotional events, and that while there they actively promoted Respondent’s wine [R: 523 - 660, 767]. Hence this Court should also disregard Respondent’s self-serving conclusion that “Respondent remained in 16 Spain, producing wine, bottling it and allowing Appellant to market it in the United States” (Respondent’s Brief, page 14). What Appellant did before the Trial Court, and now attempts to do before this Court was to gather a few mostly undisputed facts that have nothing to with the existence or lack of of CPLR 302(a)(1) jurisdiction under either branch of the Statute, and proclaim “The [jurisdictional] facts are not in dispute; however much Appellant supposes they are not [sic, they are]” (Respondent’s Brief, page 15). As for its legal argument relating to why summary judgment should have been granted in this case, Respondent misstates the applicable standard for summary judgment. Respondent’s Brief states that “Appellant was required to demonstrate to the Trial Court that jurisdiction existed” (Respondent’s Brief, page 3). This statement too is inaccurate (Appellant’s Brief, pages 25-26). Where, [...], the court has chosen not to conduct a full-blown evidentiary hearing on the motion, the plaintiff need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials. The court construes the pleadings and affidavits in the light most favorable to the plaintiff, resolving all doubts in its favor, Lunera Lighting, Inc. v. Nexus Light Drive, LLC, 2009 U.S. Dist. LEXIS 76510; 2009 WL 2824744 (NDNY 2009) citing Bank Brussels 17 Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779 (2 nd Cir. 1999); DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001). In the instant case, Respondent had before the Trial Court, the burden of showing that no factual issues relating to jurisdiction existed. As Appellant’s Brief set out in detail, it utterly failed to do so. That failure on Respondent’s part notwithstanding, Appellant raised material factual issues relating to jurisdiction (Appellant’s Brief, page 26 et seq.). Respondent’s Brief did not even purport to deny Appellant’s statement that: “However, Respondent’s summary judgment motion papers [R: 29- 76], did not even begin to make such a prima facie showing … nor did it attempt to convince the Trial Court there were indeed no factual issues related to jurisdiction.” (Appellant’s Brief, page 26) Consequently, under the standard of a motion to dismiss for lack of jurisdiction, Appellant only had to make a prima facie showing of jurisdiction; a standard it more than satisfied. To that effect, Appellant pointed out that: (a) 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]; 18 (b) There was ample evidence showing that Respondent solicited business in New York by telephone or other electronic means, that Respondent itself actively marketed its wine to New York residents, and that it participated in various promotional activities in New York related to the contract [R: 97-113; 657-660, 767]; and (c) Respondent designed the English version of its website, some features of which made references to New York and were apparently aimed at residents of New York [R: 100-105]. Through the Affidavit of Appellant’s principal, Monica Duarte, Appellant detailed Respondent’s business activities in New York [R: 523-656]. As Appellant’s submissions in the Record show, Appellant sustained its burden opposing summary judgment; however, Respondent as the proponent of summary judgment did not. B. THE FACTS AND THE LAW SUPPORT PERSONAL JURISDICTION OVER RESPONDENT Respondent’s Brief begins its Statement of the Case with two (2) more inaccurate statements: “Respondent has no contacts in New York and did not enter the New York market. Respondent did not send its goods into the United States”. (Respondent’s Brief, page 12). 19 Respondent makes these statements despite the ample evidence in the Record of both its promotional visits to New York, as well as the sales and shipments of Respondent’s wine to Kobrand in New York, supra at 11 and 15. As yet another example of the inaccuracies in Respondent’s Brief on jurisdiction, Respondent argues that there is no personal jurisdiction over Respondent since "the contract was performed wholly in Spain: grapes were grown, nurtured, harvested, made into wine and bottled and shipped from Spain" (Respondent’s Brief, page 10). It is unclear to Appellant to which contract Respondent is referring with this description: Neither of the contracts at issue in this case (Respondent’s oral agreement to pay commissions to Appellant; or Respondent’s agreement with Kobrand for the sale and shipment of Respondent’s wine) had as its subject matter the growing of grapes and the making of wine. 1. Respondent’s confusion notwithstanding, it is beyond genuine dispute that Respondent transacted business in New York, CPLR 302 (a) (1) Within the context of CPRL 302 (a) (1), Respondent appears confused not only as to what the statute contains, and what the First Department actually held; counsel for Respondent also appears confused as to what arguments he wants to make to this Court. As a result, Respondent argues on one hand that: 20 “Respondent did not have ‘transactions’ in New York” ( Respondent’s Brief, page 2). “It is undisputed that Respondent did not enter New York for any purpose, much less to transact business here”, id. “Beyond all that, not all purposeful activity constitutes a ‘transaction of business’ within the meaning of CPLR 302(a)(1)” ( Respondent’s Brief, page 18). But then Respondent changes course and states that: “The Frist [sic, First] Department properly found that these promotional activities constituted the transaction of business here.” (Respondent’s Brief, page 2). And Respondent further cements its concession to the First Dept. by stating: “The First Department distilled from McGowan that Respondent’s visits to New York to promote its wine constitute the transaction of business here” (Respondent’s Brief, page 23); “At the risk of repetition, the First Department properly found Respondent’s promotional activities in New York constituted the transaction of business here” (Respondent’s Brief, page 24). In fact, the First Department did hold that Respondent’s conduct, in the form of visits for promotion and marketing purposes, fulfilled the first prong of CPLR 302 (a) (1), i.e. the transacting of business in New York: “We find that defendant’s 21 visits to New York to promote its wine constitute the transaction of business here.” (Order Appellate Division May 14, 2015). [R: 762]. Therefore, it is unclear why Respondent would at this point argue that "not all purposeful activity constitutes a 'transaction of business' within the meaning of CPLR 302 (a) (1) [...] We see here the complete opposite of a company's sustained activity which purposefully avails itself of the privilege of doing business in New York" (Respondent’s Brief, page 18). Respectfully, as the First Department held, Respondent’s activities met the criteria of “transacting business” under CPLR 302 (a) (1), and having never cross- appealed Respondent may not now reopen it, supra at 15. 2. Respondent’s wine sales and shipments to New York constitute “contracting anywhere to supply goods in New York” pursuant to CPLR 302 (a) (1) As amply reflected in the Record, Respondent did contract with a New York company, Kobrand, to bring its wine to New York, and by all accounts handsomely profited from it, supra at pages 11-12. Those facts notwithstanding, Respondent makes the sweeping and conclusory statement that “Appellant tries to shoehorn CPLR 302 (a) (1) into this case. It’s not a good fit. Kramer v. Vogl, 17 N.Y.2d 27.” (Respondent’s Brief, page 7). However, as cited in Foster Importing Co. v. Creative Food Imports, 1984 U.S. Dist. LEXIS 18647, 1984 WL 3657 (SDNY 1984), according to Professor Siegel, 22 the 1979 amendment which added the "contracts anywhere to supply goods or services in the state” language was specifically intended to overturn such cases as Kramer, Siegel, New York Practice 27 (Supp. 1982). McKinney's C.P.L.R. Annotator, Judge Joseph McLaughlin, agrees that the amendment was meant to abrogate the "mere shipment" rule. See McLaughlin, 1979 Practice Commentary, CPLR C302:13 (McKinney's Supp. 1983-84). Respondent’s Brief’s reliance on McGowan v. Smith, Kramer v. Vogl, and Ferrante Equip. Co., 26 NY2d at 285 (see Respondent’s Brief, pages 1-2, 7 and 18), all legislatively superseded cases, reveals Respondent’s misapprehension of CPLR 302(a)(1): Jurisdiction may now be exercised over a non-domiciliary who contracts outside New York to supply goods or services here 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 that contract, Sirius Am. Ins. Co. v SCPIE Indem. Co., 461 F Supp 2d 155, 161 (SDNY 2006) citing Alan Lupton Associates, Inc. v. Northeast Plastics, Inc., 105 AD2d 3, 6, 482 NYS2d 647 (4th Dept. 1984). In the instant case, the record on appeal upon which the First Department’s May 14, 2015 Order was based, contained evidence of Respondent’s sales and shipments to Kobrand, supra at pages 3-4, 11-12. As Respondent had conceded to the Trial Court it had sold its wine to Kobrand, the Trial Court (Hon. Diamond) 23 properly held that Respondent’s sales of wine to Kobrand constituted the “contracting to supply goods” [R-129]. Early on in this litigation, when it denied Respondent’s motion to vacate default judgment, the Trial Court 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]; (Appellant’s Brief, page 35). In its Brief, Respondent does not refute that it so conceded; instead, it merely contends without including any legal authority that “Previous orders and previous records are irrelevant.” (Respondent’s Brief, page 4). Notwithstanding that in McGowan, supra, this Court itself noted the 1979 amendment to CPLR 302(a)(1), McGowan supra at 271, n.2; notwithstanding that over six (6) years ago, the Hon. Diamond recited it in her Order [R: 129]; and notwithstanding that Appellant’s Brief on this appeal specifically referred to it (Appellant’s Brief, pages 34-35), Respondent appears to remain oblivious to our Legislature’s 1979 enactment: Astonishingly three (3) times in its Brief, Respondent cites McGowan v. Smith, supra, for the proposition obliterated decades ago“[…] that the long-arm authority conferred by [CPLR 302(a)(1)], does not extend to nondomiciliaries who merely ship goods into the state without ever crossing its borders”, see Respondent’s Brief, pages 1-2, 17-18, and 21. 24 It is not all: At page 26 of its Brief, Respondent states that “CPLR 302’s purpose was to confer on the court ‘personal jurisdiction over a non-domiciliary whose act in the state gives rise to a cause of action’, or stated somewhat differently, to ‘subject non-residents to personal jurisdiction when they commit acts within the state (emphasis added)”. This quote for which no citation is provided, does not take into account the additional jurisdictional basis, afforded to plaintiffs by virtue of the 1979 amendment to CPLR 302, supra at 21-22. Further, the reason why Respondent would at this juncture argue to this Court that it sold and shipped its wine to Kobrand in New York Ex Works, and that this somehow should insulate it from long arm jurisdiction in New York, is a mystery to the undersigned. In any event, this legal argument too is a first, and it too was not preserved. This Court should thus disregard it, as Respondent’s new Ex Works argument does not fall within any of the three (3) exceptions allowing this Court to entertain new legal arguments and theories raised on appeal, supra at 13-14. Moreover, Respondent’s brief states that “Invoices from Respondent to Kobrand feature the term “EXW”, which means “EX Works” (Respondent’s Brief page 12). At page 20 of Respondent’s Brief, it states: “The wine was shipped to New York, Appellant whimpers. Thus ignoring that Respondent delivered the wine in Spain 25 under the EXW rule.” “The Agreement was made in Spain … and the Wine shipped EXW …”, id. In any event, Respondent’s new legal argument is without merit. First of all, “Ex Works” is not an “agreement” between the parties, as Respondent wants the Court to believe (Respondent’s Brief, page 3), or even a “rule” (Respondent’s Brief, page 20). “Ex Works” is merely one of the Incoterms developed by the International Chamber of Commerce: “Ex Works” simply means that the seller delivers when it places the goods at the disposal of the buyer at the seller’s premises or at another named place (i.e., factory, warehouse, etc.). The seller does not need to load the goods on any collecting vehicle, nor does it need to clear the goods for export, where such clearance is applicable. 6 Respondent offers no evidence of an “agreement” relating to Ex Works. Notably, Respondent argues in other portions of the Brief that there was no relationship much less a contract between itself and Kobrand, the buyer of the wine (Respondent’s Brief, page 16). That Olegario’s Invoices to Kobrand included “EXW” an acronym for the “Ex Works” incoterm, does not alter the fact that Respondent “contracted to supply” its wine to Kobrand in New York, infra at 26- 29. 6 www.iccwbo.org/products-and-services/trade-facilitation/incoterms-2010/the-incoterms-rules/ 26 Courts regularly hold that commercial shipment and delivery terms that shift the risk of loss outside of New York are not a factor in the determination of long arm jurisdiction over Respondent under CPLR 302 (a) (1), specifically not under the “contracted anywhere” prong of the statute. The fact that title or risk of loss to the goods passed from the Respondent to Kobrand outside of New York, does not defeat personal jurisdiction. The key issue is that the non-domiciliary contracted and intended to send goods to New York, Laumann Mfg. Corp. v. Castings US, 913 F. Supp. 712; 1996 U.S. Dist. LEXIS 1626 (EDNY 1996) citing En Vogue v. UK Optical, 843 F. Supp. 838; 1994 U.S. Dist. LEXIS 1676 (EDNY 1994); Cleopatra Kohlique, Inc. v. New High Glass, Inc., 652 F. Supp. 1254; 1987 U.S. Dist. LEXIS 667 (EDNY 1987). The place where the risk of loss shifts from a seller to a purchaser is not determinative [for whether there is personal jurisdiction under CPLR 302(a)(1)], nor is the place of execution of the contract, Ulster Sci., Inc. v. Guest Elchrom Sci. Ag, 181 F. Supp. 2d 95; 2001 U.S. Dist. LEXIS 18426 (NDNY 2001). Under New York law, an out-of-state F.O.B. designation in a contract to deliver goods into New York state does not foreclose operation of the "contracts anywhere" prong of section 302(a)(1), Gessler v. Sobieski Destylarnia S.A., 2010 U.S. Dist. LEXIS 71414 (SDNY 2010) citing Laumann Mfg. Corp. v. Castings 27 USA, Inc., supra. New York may exercise jurisdiction over a defendant pursuant to CPLR 302(a)(1). The plaintiff established that the defendant manufactured the safe in question and shipped it into New York pursuant to its agreement with the retailer. Contrary to the defendant's argument, the fact that the safe was shipped "FOB" Atlanta, Georgia, is immaterial, Seaman v. Fichet-Bauche North America, Inc., 176 AD2d 793; 575 NYS2d 122 (2 nd Dept. 1991); see also Anderson Dev. Corp. v. Isoreg Cop., 154 AD2d 859, 546 NYS2d 720 (3 rd Dept. 1989). See also Foster Importing Co. v. Creative Food Imports, supra at 21, where the US District Court for the Southern District of New York explained that the term “supply” [in CPLR 302 (a) (1)’s "contracts anywhere to supply goods or services in the state”] was most likely intended to be used with its common sense meaning, i.e. to provide for goods to enter and be used in New York. The court stressed that the statute does not indicate that the terminology was meant to refer to the law of sales for definition or explanation. Moreover, the court found that since the legislative history of CPLR 302(a) (1) shows that the 1979 amendment was made to abrogate the “mere shipment” rule, it was specifically intended to eliminate arguments such as the one made by the defendant in the case: that it did not contract to supply goods in New York because under the UCC delivery "F.O.B. Spain" caused title to pass in Spain and that therefore the goods were supplied in Spain rather than in New York. 28 In Cavalier Label Co. v. Polytam, 687 F.Supp.872, 877 (SDNY 1988), the US District Court for the Southern District of New York held: “The fact that the coats were sent F.O.B. Israel does not alter the result. The court does not believe that the New York State legislature intended to allow potential defendants to escape the reach of the long-arm statute by inserting such terms into their contracts. Although risk of loss may have passed in Israel, it does not alter the practical reality that [defendant] Polytam contracted to supply, and did in fact ship, goods into New York”. Also Cleopatra Kohlique, Inc. v. New High Glass, Inc., supra at 1258: “[CPLR] Section 302(a) (1) was enacted to abrogate the ‘mere shipment’ rule and we do not believe the New York State legislature intended to allow potential defendants to escape the reach of the long arm statute by inserting such terms into their contracts. Although risk of loss may have passed in Milan, it does not alter the practical reality that [third-party defendant] Fital contracted to supply, and did in fact ship, goods into New York. This activity places this case squarely within § 302(a) (1).” As the court in Foster Importing Co. v. Creative Food Imports, supra at 21, stated: “Although this argument [that CPLR 302(a)(1) does not apply because title to the goods passed and the risk of loss shifted outside New York] has some surface appeal, it cannot withstand analysis.[…] [T]his has nothing to do with the 29 jurisdictional issue, which depends upon services rendered, whatever the terms.” Foster Importing Co., supra, at 2. In the instant case, by selling wine to Kobrand, by invoicing Kobrand, by making the goods available to Kobrand’s carrier (Hillebrand) for delivery to Kobrand, and by declaring not only to the TTB, a Federal Governmental Agency, but also to potential retail customers in the US, that Kobrand was its US Distributor, supra at 13, Respondent clearly contracted to supply goods to New York within the meaning of CPLR 302 (a) (1), and just an “Ex Works” term on the invoices does not change that fact. Respondent argues that there was “no contract by and between Kobrand and Respondent. Each of the documents Appellant includes in the Record is a draft, unsigned, proposed contract. (R. 487-521; 460-473)”, Respondent’s Brief, page 22. Whether there was in fact a formal agreement for the sale and distribution of wine ever executed between Respondent and Kobrand does not bear on the fact that Respondent contracted to supply goods within the meaning of CPLR 302 (a) (1). Cases show that as to the requisite contractual arrangement, the “contracts to supply goods or services” branch of the statute receives a loose interpretation. In Greenky v. Irving Music, Inc., 1981 Copyright L.Dec. (CCH) 1981 WL 1370 (SDNY 1981), jurisdiction was held to exist over a non- 30 domiciliary song composer who had assigned his performance rights in a song to a music licensing company which, in turn, had licensed the song to radio stations, television networks, and other users of music. The agreement between the composer and the music licensing company was held to be a contract to supply goods or services in New York, and as such was sufficient to establish personal jurisdiction. [W]here a contract explicitly calls for the supply of goods or services to New York […] or the defendant plays an active role in the supply of the goods or services to New York jurisdiction will exist if the cause of action arises from the contract, Robinson v. Intuit, Inc., 2010 N.Y. Misc. LEXIS 6846; 2010 NY Slip Op 33824(U) (Sup Ct, NY County 2010) citing Island Wholesale Wood Supplies, Inc. v Blanchard Industries, Inc., 101 AD2d 878, 476 NYS2d 192 (2 nd Dept 1984); Seaman v. Fichet-Bauche North America, Inc., supra; Anderson Development Corp. v Isoreg Corp., supra; Torrioni v. UNISUL, Inc., 176 AD2d 623, 575 NYS.2d 66 (1 st Dept 1991). There need not be a formal written contract in place for the defendant to have contracted to supply goods in New York. (See St. Tropez Inc. v. Ningbo Maywood Indus. & Trade Co., 2014 U.S. Dist. LEXIS 96840; 2014 WL 3512807 [SDNY 2014] defendant found to have contracted to supply goods in New York on the 31 basis of purchase orders). Simply put by the US District Court for the Western District of New York "’if the [defendant] was aware that New York was the ultimate destination of its computer chips when it contracted to manufacture them for Plaintiff, . . . it follows that [the defendant] contemplated delivery of its computer chips in New York. Within the meaning of subdivision 1 of CPLR § 302(a), [the defendant] thereby contracted to supply goods in New York’[…].That reasoning is sound. C.P.L.R. § 302(a) does not draw a distinction, as [defendant] contends, between goods ‘shipped’ and goods ‘supplied’", Roberts-Gordon LLC v. Pektron PLC , 999 F. Supp. 2d 476; 2014 U.S. Dist. LEXIS 19045 (WDNY 2014) citing Columbus McKinnon Corp. v. China Semiconductor Co., Ltd., 1989 U.S. Dist. LEXIS 19294, 1989 WL 82455 (WDNY 1989). 3. There is no support in the Record for Respondent’s contention that the contract between the parties was to be performed entirely in Spain Respondent’s Brief does not refute Appellant’s position that without any evidentiary back-up, Respondent repeatedly represented to the First Department that Spain (not New York) was the place of performance of the parties’ Agreement, (Appellant’s Brief, pages 43-46). Respondent’s Brief also does not refute: 32 a. Appellant’s statement that Attorney Gleason did not aver personal knowledge as to the Contract’s place of performance, (Appellant’s Brief, page 45). Nor does Respondent’s Brief refute the fact that Attorney Gleason, was a total stranger as to the place of performance of the parties’ Importer Sourcing Agreement, (Appellant’s Brief, page 49). b. Appellant’s position that Respondent misconstrued to the First Department ¶ 8 of the Affidavit of Respondent’s Maria Falcon Oubina, as therein it nowhere states, as Respondent represented it does (R:61) that the contract was wholly performed in Spain, (Appellant’s Brief, pages 43-45). c. Appellant’s position that Attorney Gleason misrepresented to the First Department that the Complaint [R:64] alleged “… that the Contract was formed and performed in Spain”, (emphasis added), Id. Respondent’s Brief does not refute Appellant’s position that on the contrary, the Complaint alleges specific instances of the Contract’s performance in New York, (Appellant’s Brief, page 45). d. Appellant’s position that 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. 33 e. That 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] (Appellant’s Brief, page 40). Respondent’s Brief does not attempt to explain the inherent contradiction in Respondent’s papers to the Trial Court that 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 to the Trial Court insisted that “Its [Olegario’s] only New York tie consists of the efforts of D&R and Kobrand” [R: 68]. (Appellant’s Brief, pages 46-47). Respondent’s Brief sole support for its belated insistence that “the Agreement was in fact wholly performed in Spain” is that “Respondent’s vineyard produced grapes – in Spain. Respondent cultivated and harvested the grapes; made them into wine and put it in barrels at the winery in Spain. When Appellant sold some of the wine, it earned commissions, in Spain, which were paid in Spain in Euros. And delivery of the wine of the wine was made in Spain”, (Respondent’s Brief, page 20). “Again, one can only solicit business where the persons solicited are to be 34 found” (emphasis added), held the United District Court (SDNY) in Lamco Group v. Universal Life Ins. Co., 903 F. Supp. 612, 614. There should be no dispute Kobrand was at all relevant times located in New York. Thus there should also be no dispute that Appellant could only have solicited, and in fact solicited Kobrand in New York. 4. There is sufficient nexus between Respondent's contacts with New York and Appellant's claim for commissions, CPLR 302 (a) (1) In a nutshell, Respondent’s argument on a lack of a nexus between Appellant’s claim and Respondent’s conduct is wrong on all levels. Under the heading “No nexus between Appellant’s claim and Respondent’s activities in New York”, Respondent’s Brief claims that Appellant’s “conflates its claim for commissions with Respondent’s promotional activities in New York” (Respondent’s Brief, page 24). This is a misapprehension of Appellant’s argument: Appellant’s Brief sets out in details Appellant’s argument that Appellant’s claim for commissions is directly related to (a) Respondent’s contracting to supply wine to Kobrand Corp. and (b) Respondent’s promotional activities in New York (Appellant’s Brief, pages 37-58). Also without evidentiary support, Respondent states “Appellant placed the orders with Kobrand from Spain” (Respondent’s Brief, page 25). Appellant never sold Respondent’s wine. Appellant did not place any orders with Kobrand. As evidenced by Respondent’s seventeen (17) invoices to Kobrand, which Kobrand 35 paid directly to Respondent, it was Respondent who sold its own wine. Pursuant to the parties’ oral agreement, when Respondent sold to Kobrand Corp., it paid Appellant commissions on such sales because Appellant had secured that company as importer and distributor for Respondent. Premised on wrong facts, Respondent’s argument fails. A substantial relationship between the plaintiff’s claim and the defendant’s contacts with the State, as required by CPLR 302 (a) (1), undoubtedly exists if the claim arises directly from the transaction at issue, Grimaldi v. Guinn, 72 AD 3d 37, 895 NYS2d 156 (2 nd Dept. 2010). However, decisions by this Court over the years show that a less direct nexus suffices, depending on the facts and circumstances. The Court has stressed that the relationship may not be “too diluted” [see SPCA of Upstate N.Y., Inc. v. American Working Collie Assn., 18 NY3d 400 (2012)] and that the defendant’s contacts with New York and the plaintiff’s cause of action may not be too far removed in time [see Talbot v Johnson Newspaper Corp., 71 NY2d 827 (1988)]. In another case, the Court has found “purposeful activity in New York directed toward and resulting in the establishment of a contractual relationship” to provide a sufficient nexus under the statute (George Reiner & Co. v. Schwartz, 41 NY2d 648 [1977]). 36 Respondent’s Brief attempts to discredit the cases cited by Appellant’s Brief in connection with the requisite “substantial relationship” or “nexus”: it characterizes Licci as a decision by this Court that “may be genuinely and generously viewed as sui generis”, and claims that it has “nil application here” (Respondent’s Brief page 8). Appellant finds no indication whatsoever in the Order that this Court wanted Licci to be sui generis. And Licci is very much applicable in the instant case: it gives guidance on the extent of the “arising from” requirement in CPLR 302 (a) (1), in other words the extent of the requisite relationship or nexus between the business transacted by a defendant and a plaintiff’s cause of action. To state otherwise, as Respondent does, encapsulates a profound misunderstanding of the importance of what is undoubtedly this Court’s most important pronouncement on long arm-jurisdiction in this decade. Respondent endeavors to quote the Trial Court in an earlier Order to support the argument that there is an insufficient nexus; however, it fails to do so in an accurate context. Respondent’s Brief states on page 5: “As Justice Mendez correctly ruled early on in this case, where an action by one foreign corporation against another does not arise in this state, the action is beyond the jurisdiction of the New York Courts (Cala v Luis De Ridder LTDA, S.A. 17 AD 2d 729, 232 NYS 2d 284 (1 st Dept. 1962), (R. 10).” In fact, the Trial Court’s holding cited by Respondent was not made in the context of personal jurisdiction, as Respondent’s quote from the 37 Trial Court’s Order taken out of context would make this Court believe. Instead, it was made in connection with subject matter jurisdiction [R: 10] The Trial Court’s Order summarized personal jurisdiction as follows:“The issue has been decided by the Appellate Division that this matter should not be dismissed for lack of personal jurisdiction. The issue now is whether this action should be dismissed for lack of subject-matter jurisdiction.” Consequently, the Trial Court then moved on to subject matter jurisdiction and then in the next paragraph of the Order cited Cala in connection with Business Corporation Law (BCL) 1314(b), a statute pertaining to subject matter jurisdiction [R: 10]. As Appellant pointed out to the Trial Court in its Memorandum of law in Support of its Motion to Reargue [R: 724 - 728], the Cala case [R: 729] was a pre- BCL 1314(b) case, decided under the former General Corporation Law Section 225, [R: 725 - 727] a fact that was clearly stated by the court in Cala, [R: 729]. Indeed, the relevance of BCL 1314(b) on subject matter jurisdiction was then recognized in the Trial Court’s Order granting re- argument [R: 7]. Further, Respondent claims that Lupton “aside from being three-decades old, is inapplicable. Lupton’s appellant was a New York company. Defendant was a Massachusetts company. Appellant agreed to promote the sale of defendant’s products in the northeastern United States for commissions. Appellant sued alleging that it had ‘sold products manufactured by the defendant’. Here, instead of 38 New York and Massachusetts companies, each litigant is a Spanish company. Indeed, Appellant admits its principal place of business is in Spain (R 140). Appellant did not sell Respondent’s wine nor did Respondent sell the wine in the U.S.; rather Appellant brokered for a local distributor (Kobrand) to distribute the wine” (Respondent’s Brief, page 9). In fact, Lupton is still good law and very much applicable here. It is respectfully submitted that the fact that the parties in the instant case, unlike in Lupton, are Spanish companies is without distinction. Appellant believes that CPLR 302 (a) (1) does not encapsulate the requirement that a plaintiff seeking to rely on either the “transacting business within the state” or the “contracting anywhere to supply goods or services in the state” branch of the statute, be a resident of New York. Moreover Respondent can point to no such requirement. Lastly, while Appellant did not sell Respondent’s wine here, it promoted its wine to New York importer and distributor Kobrand, which, in turn, enabled Respondent to sell and ship to Kobrand. In the instant case, there is clearly a substantial nexus between Appellant’s claim and Respondent’s contacts in the State. With respect to the “contracts anywhere" branch of long-arm jurisdiction under CPLR 302 (a) (1), Appellant’s claim for commissions bears undoubtedly a direct relationship to Respondent’s contracting to sell and ship wine to Kobrand in New York: Appellant would not have been 39 entitled to any commission payments but for the fact that Respondent sold its wine to Kobrand (Appellant’s Brief, pages 37-39). Incorrect as Respondent’s statement is that “[n]aturally, Appellant would naturally have no claim for commissions unless it [sic, Respondent] sold [its] wine [to Kobrand]” (Respondent’s Brief page 24), it showcases Respondent’s acceptance that the sale of its Albariño Wine to Kobrand was a sine-qua-non condition to Appellant’s entitlement to commissions. With respect to the “transacts business” branch of the statute, there is also a sufficient nexus that is not by any means attenuated, between Appellant’s claim for commissions and Respondent’s conduct. The promotional events in New York were attended by Respondent (a) to further its agreement with Appellant (to promote Respondent’s wine which would allow Appellant to find an importer and distributor) and to facilitate the selling of Respondent’s wine to potential importers and distributor (such sales were ultimately to become the source for Appellant’s commissions) (Appellant’s Brief, pages 52-58). Respondent’s attendance at the promotional events can also be characterized as “directed toward and resulting in the establishment of a contractual relationship” (Reiner, supra at page 39). 5. Respondent does not refute that Appellant would not be entitled to a Jury Trial in Spain 40 Appellant also noted that if tried in Spain, Appellant would be devoid of its right to have the facts hereof decided by a Jury, (Appellant’s Brief, page 68). See also Chapter 1 of Spanish Organic Law 5/1995 May 22 nd , of the Jury Tribunal 3 and translation thereof provided to this Court pursuant to Appellant’s Letter to this Court dated April 7 th , 2016). Respondent does not refute that a Jury Trial would be unavailable to Appellant in Spain. C. APART FROM CITING CASES THAT HAVE LONG BEEN LEGISLATIVELY SUPERSEDED, RESPONDENT’S BRIEF IS REPLETE WITH CONTRADICTIONS AND FACTUAL ERRORS The inaccurate and contradictory statements in Respondent’s Brief are so numerous that to list all of them would exceed this Reply Brief’s scope. While a number of such statements are addressed hereinabove, Appellant feels compelled to also point out the following statements in Respondent’s Brief. On page 6 of its Brief, Respondent states “Appellant’s representative attended the Great Match event ‘alone’ and her company ‘solely’ paid for the expenses. Respondent did not reimburse Appellant for these costs. (R: 210-213).” This statement is not only incorrect but also not reflected in the Record pages to which Respondent cites. To the contrary, the Record pages to which Respondent cites pertain to Appellant’s Inquest held before the Trial Court (Hon. Diamond). 41 Therein Appellant’s Monica Duarte testified she went alone to the International Wines event in Miami. Ms. Duarte never testified and the Record is bereft of any evidence Ms. Duarte attended the Great Match (New York) event alone. To the contrary, Respondent’s Maria Falcon Oubina at her deposition stated that Roberto Falcon attended the Great Match in New York as Respondent’s representative [R: 767]. This testimony comports with both Appellant’s Monica Duarte’s Affidavit [R: 523 - 656] and Erica Lage’s Affidavit [R: 657 - 661], both of which swore not only that Respondent’s Roberto Falcon and Angeles Mosteiro attended the Great Match, but that both were there to sell Respondent’s wines [R: 533, 659-661]. In fact, the Great Match was only one of several events Respondent’s representatives attended in New York, and their promotional visits to New York represent only one of the steps that Respondent undertook to directly engage in commerce with New York residents [R: 523 - 656]. On page 6 of its Brief, Respondent further states “… Appellant solely procured the import with the Kobrand Corporation”. It is not clear what Respondent means. To the extent it means Respondent was not present at the Great Match event in New York when Kobrand materialized, the Record clearly refutes it [R: 523 - 656]. 42 On page 8 of Respondent’s Brief, it states “Appellants’ [sic] second wall of fog is to insist that Defendant [sic] sought to enter the U.S. market (when in fact Appellant visited Defendant’s vineyard unsolicited asked to be its salesperson). (R.60-61).” This is another misrepresentation of the facts. Simply put, there is no support in the record pages cited by Respondent, nor anywhere else in the record, for the allegation fact that Appellant visited Defendant’s vineyard “unsolicited”, nor for the proposition that Appellant “asked” Respondent to be its sales person. Moreover the statement at page 20 of Respondent’s Brief, “When Appellant sold some of the wine, it earned commissions, in Spain, which were paid in Spain in Euros … Later promotional activities in New York have no nexus with Appellant’s claim for unpaid commissions in connection with the sales of that wine” (emphasis added). First, Appellant did not sell any wine. Appellant sold a service (to secure a US wine importer and distributor) to Respondent. As Respondent’s invoices to Kobrand clearly evidence, it is Respondent that sold its wine to Kobrand, supra at 3. That Kobrand paid Respondent directly and to the tune of almost Seven Hundred Thousand Euros, id, should put to rest Respondent’s statement that it was “Appellant [that] sold … the wine.” Respondent’s Brief, page 20. Respondent’s Brief at page 22 states, “Kobrand accepted Respondent’s wine and distributed it after the termination of Respondent’s oral agreement with 43 Appellant.[…] The Kobrand invoices are dated in 2006, after the termination of Appellant’s oral agreement with Respondent. And the invoices provide for EXW delivery, i.e in Spain.(R. 611-613, 570, 572)” And also in footnote number 4 at the bottom of page 22 of Respondent’s Brief, “Only three invoices date from 2005; all the rest are from 2006. Those in 2005 were created through Appellant’s efforts. R. 569-573).” Besides the fact that with respect to Respondent’s citation to (R. 611-613, 570, 572) as evidencing the Record’s wine invoices containing the EXW incoterm, only one is correct, namely R. 611, Respondent’s assertion is factually wrong. Appellant sees it as a thin-veiled attempt to break the causality between Respondent’s promotional activities in New York on one hand, and Appellant’s claims for commissions on the other. Respondent misrepresents to this Court the timeline: The fact is Respondent’s promotional activities in New York that are in evidence in the Record, namely the Great Match Event held on May 19, 2005 [R: 533], the Solera Restaurant event held on or about January 9, 2006 [R: 534], and the Ritz- Carlton Kick-Off event held on or about January 10, 2006 [R: 535], and, all the foregoing events held in New York, NY, were all pre-launch events that predate Respondent’s sales to Kobrand. 44 As the Record reflects, except for samples, Respondent did not invoice Kobrand in 2005. Respondent’s 2005 Invoices to Kobrand are all for samples or wine incidentals [R: 569 - 573]. Moreover the Fedex Airway Bill with reflects some of the samples designates Respondent as shipper [R: 574]. In the Record, except for Respondent’s samples shipped to Kobrand, Respondent’s Invoices to Kobrand are all dated from 2006 to 2008 [R: 147 - 151, R: 153 - 154, R: 160, R: 162, R: 164 - 165, R: 167, R: 169, R: 173, R: 176, and R: 178]. Respondent’s earliest invoice to Kobrand (numbered A/02/2006) is dated January 9, 2006 [R: 149], and Respondent’s latest invoice to Kobrand (numbered FV8/0000079) is dated October 2, 2008 [R: 178], as compiled in the Chart at R: 180. Further, both of Respondent’s Sales and Marketing Managers, Angeles Mosteiro and Maria Falcon Oubina, swore under oath that Respondent terminated the Agreement with Appellant in December 2006. Maria Falcon Oubina: “In December 2006, a year after the Agreement was executed, Olegario terminated [sic] the agreement pursuant to its terms and so informed D&R.” [R: 62]; see also Angeles Mosteiro to the same effect at [R: 187]. What relevance the statement at page 25 of Respondent’s Brief, “Moreover Appellant Duarte signed her Affidavits in this case in Spain (R. 139)” could possibly have to the issue of long-arm jurisdiction or to the issue of subject-matter 45 jurisdiction is another profound mystery. Suffice it to say that the Appellant in this case is D&R Global Selections S.L. and not Ms. Duarte (who is Appellant’s principal), and that only one (1) of her Affidavits in the Record, were signed in Spain [R: 139 - 146]. Moreover it does not even pertain to the Order of the Hon. Mendez that led to the May 2015 Order being appealed hereof, not that it should matter to this Court if it did. Her other two (2) Affidavits in the Record were both signed in Newark, NJ [R: 330 - 338, 523 - 656]. With respect to the statement at page 26 of Respondent’s Brief, “… Appellant took care of the importation and labelling formalities alone and without reimbursement from Respondent.” R. 201-213), reference is apparently made to the transcript of the Inquest held before the Trial Court (Hon. Diamond). Appellant’s principal Ms. Duarte never so testified: in fact, what Ms. Duarte testified, was that working with Ms. Savage of Kobrand, she got the Defendant’s labels approved by the TTB [R: 211]. And the expenses that she testified Appellant assumed without reimbursement from either Kobrand (the importer), or from Respondent (the defendant), pertained to her trip to Miami’s International Wines Fair [R: 213]. The expenses as to which she testified at the Inquest, were unrelated to any expenses pertaining to “the [Wine’s] importation and labelling formalities.” There is simply no support in the Record for the statement at page 26 of Respondent’s 46 Brief, that “… Appellant took care of the importation and labelling formalities alone and without reimbursement from Respondent.” In an apparent attempt to distance itself from Appellant’s promotional activities in New York, the statement in the middle of page 26 of Respondent’s Brief, “Whatever Appellant did with the wine in the United States neither binds Respondent nor shows that performance of the Contract was to be made in New York. Indeed, it defies logic that Appellant would advance this argument.” What the Record amply reflects is that with Respondent’s assistance, Appellant promoted Respondent’s Albariño wine in New York in order to find a New York Distributor to which Respondent could sell (supply) its wine. Appellant so found Kobrand which purchased thousands upon thousands of Respondent’s wine, thus entitling Appellant to commissions as per the parties’ agreement. Any attempt to tweak this basic truth, this Court should give little credence. Furthermore, the next statement in the middle of page 26 of Respondent’s Brief, “… there was no agency relationship between Appellant and Respondent” squarely contradicts Attorney Gleason’s statement to the Hon. Mendez that “D&R acted as Olegario’s agent in New York.” [R: 701]. Last but not least, the statement on the top of page 12 of Respondent’s Brief, “Appellant now seeks to yet [sic] another appeal” speaks volumes for the breadth 47 of the many inaccuracies in Respondent’s Brief: this is Appellant’s first appeal: The two previous appeals were both filed by Respondent. D. INEXPLICABLY, RESPONDENT QUOTES AN OLD SUPERSEDED RECORD, AND THE RECORD DOES NOT SUPPORT SEVERAL OF RESPONDENT’S AVERMENTS As the Record filed with this Court on March 17, 2016 (“Old” Record) was in several places illegible, it was agreed with Court attorney Susan Dautel, Esq., that it would be disregarded; and that Appellant would serve and file a “New” Record (and Brief) by April 5. At Ms. Dautel’s request, Appellant so confirmed by letter dated March 22, 2016 to this Court’s James Costello, Esq., with copy to Respondent’s counsel (John Gleason, Esq.). Appellant served Respondent, and filed the “New” Record and Brief with this Court on April 5. All references in Appellant’s Brief and in the within Brief obviously are to the “New” Record. That should have been the graveyard for the “Old” Record (as well for the “Old” Appellant’s Brief). Yet, in several places, Respondent’s Brief inexplicably still refers to the “Old” Record. In one instance, the reference to the Record is incorrect in the “Old” as well as the “New” Record. At page 25 of Respondent’s Brief, Respondent attributes to the Record that “The Agreement was made and performed wholly in Spain with delivery 48 being made in Spain. (R. 763).” Nowhere does it so state at page 763 of the “Old” Record or at [R: 763] of the “New” Record. [R: 763] is actually the last page of the May 2015 Order, but nowhere therein did the First Department state “delivery being made in Spain.” To the extent Respondent now seeks to attribute to the First Department that it held “delivery being made in Spain” this is plainly misleading. This Court ought to draw from it whatever conclusion it deems most appropriate under the circumstances. Moreover, the fact that in page 2 of its pre-argument statement to the First Department, Respondent wrote: “Performance of the contract was almost wholly within Spain (growing and harvesting grapes, fermentation and bottling of wine)” [R: 2] (emphasis added) should give this Court further pause. At page 10 of Respondent’s Brief, it states “All told, Respondent paid over 60,000 Euros to Appellant in commissions paid in Spain. (SR.39; R.63).” The “New” Record contains no Supplementary Record. Page 63 of the “New” Record is the cover page of Respondent’s Memo of Law to the Trial Court. Not even at page 63 of the “Old” superseded Record does it state that Respondent paid Appellant over 60,000 Euros. The statement is true but 49 again, Respondent’s lack of attention to the details is before this Court in particular, unacceptable. At page 10 of Respondent’s Brief, the reference to R. 766 (that the First Dept. found no substantial connection) is erroneous in the “Old” superseded Record as well as in the “New record”. The correct page in the Record is [R: 763]. Also at page 10 of Respondent’s Brief, the references to “(R. 593-595, 667) for the proposition that “Respondent terminated the oral agreement” are to the “Old” superseded Record. III - CONCLUSION Respondent’s confusing, contradictory and largely incorrect Brief, citing several cases that have long been legislatively superseded should seriously dent Respondent’s credibility with this Court. Moreover Respondent’s Brief makes material misrepresentations as to applicable law as well as with respect the Record. By the same token, it is clear that Respondent has failed to establish that summary judgment was properly granted by the Appellate Division’s May 14, 2014 Order. It is also clear that Respondent did not show that the First Department properly considered the facts and the law when it held that there was no personal jurisdiction over Respondent. 50 For all of the reasons set out in Appellant’s Brief and in the within Reply Brief, it is respectfully requested that this Court reverse the Order of the Appellate Division, First Department dated May 14, 2015, hold the Respondent amenable to personal jurisdiction in the Supreme Court New York County, and also hold that the said Court has subject-matter jurisdiction. Dated: New York, NY June 13, 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. assisted with the preparation of this Brief. ADDENDUM The Incoterms® rules The Incoterms® rules have become an essential part of the daily language of trade. They have been incorporated in contracts for the sale of goods worldwide and provide rules and guidance to importers, exporters, lawyers, transporters, insurers and students of international trade. Below are short descriptions of the 11 rules from the Incoterms® 2010 edition. These should be read in the context of the full official text of the rules which can be obtained from the ICC BusinessBookstore. These extracts can be reproduced provided that the source is cited and a link to the ICC Business Bookstore is mentioned. More information available at http://www.iccwbo.org/copyright-and-trademarks/ RULES FOR ANY MODE OR MODES OF TRANSPORT EXW Ex Works “Ex Works” means that the seller delivers when it places the goods at the disposal of the buyer at the seller’s premises or at another named place (i.e.,works, factory, warehouse, etc.). The seller does not need to load the goods on any collecting vehicle, nor does it need to clear the goods for export, where such clearance is applicable. FCA Free Carrier “Free Carrier” means that the seller delivers the goods to the carrier or another person nominated by the buyer at the seller’s premises or another named place. The parties are well advised to specify as clearly as possible the point within the named place of delivery, as the risk passes to the buyer at that point. CPT Carriage Paid To “Carriage Paid To” means that the seller delivers the goods to the carrier or another person nominated by the seller at an agreed place (if any such place is agreed between parties) and that the seller must contract for and pay the costs of carriage necessary to bring the goods to the named place of destination. CIP Carriage And Insurance Paid To “Carriage and Insurance Paid to” means that the seller delivers the goods to the carrier or another person nominated by the seller at an agreed place (if any such place is agreed between parties) and that the seller must contract for and pay the costs of carriage necessary to bring the goods to the named place of destination. ‘The seller also contracts for insurance cover against the buyer’s risk of loss of or damage to the goods during the carriage. The buyer should note that under CIP the seller is required to obtain insurance only on minimum cover. Should the buyer wish to have more insurance protection, it will need either to agree as much expressly with the seller or to make its own extra insurance arrangements.” DAT Delivered At Terminal “Delivered at Terminal” means that the seller delivers when the goods, once unloaded from the arriving means of transport, are placed at the disposal of the buyer at a named terminal at the named port or place of destination. “Terminal” includes a place, whether covered or not, such as a quay, warehouse, container yard or road, rail or air cargo terminal. The seller bears all risks involved in bringing the goods to and unloading them at the terminal at the named port or place of destination. DAP Delivered At Place “Delivered at Place” means that the seller delivers when the goods are placed at the disposal of the buyer on the arriving means of transport ready for unloading at the named place of destination. The seller bears all risks involved in bringing the goods to the named place. DDP Delivered Duty Paid “Delivered Duty Paid” means that the seller delivers the goods when the goods are placed at the disposal of the buyer, cleared for import on the arriving means of transport ready for unloading at the named place of destination. The seller bears all the costs and risks involved in bringing the goods to the place of destination and has an obligation to clear the goods not only for export but also for import, to pay any duty for both export and import and to carry out all customs formalities. RULES FOR SEA AND INLAND WATERWAY TRANSPORT FAS Free Alongside Ship “Free Alongside Ship” means that the seller delivers when the goods are placed alongside the vessel (e.g., on a quay or a barge) nominated by the buyer at the named port of shipment. The risk of loss of or damage to the goods passes when the goods are alongside the ship, and the buyer bears all costs from that moment onwards. FOB Free On Board “Free On Board” means that the seller delivers the goods on board the vessel nominated by the buyer at the named port of shipment or procures the goods already so delivered. The risk of loss of or damage to the goods passes when the goods are on board the vessel, and the buyer bears all costs from that moment onwards. CFR Cost and Freight “Cost and Freight” means that the seller delivers the goods on board the vessel or procures the goods already so delivered. The risk of loss of or damage to the goods passes when the goods are on board the vessel. the seller must contract for and pay the costs and freight necessary to bring the goods to the named port of destination. ABOUT ICC NEWS & MEDIA GLOBAL INFLUENCE PRODUCTS & SERVICES ADVOCACY, CODES & RULES TRAINING & EVENTS CHAMBER SERVICES MEMBERSHIP Page 1 of 2Incoterms Rules | Incoterms 2010 | Trade Facilitation | Products... 6/15/2016http://www.iccwbo.org/products-and-services/trade-facilitation/i... CIF Cost, Insurance and Freight “Cost, Insurance and Freight” means that the seller delivers the goods on board the vessel or procures the goods already so delivered. The risk of loss of or damage to the goods passes when the goods are on board the vessel. The seller must contract for and pay the costs and freight necessary to bring the goods to the named port of destination. ‘The seller also contracts for insurance cover against the buyer’s risk of loss of or damage to the goods during the carriage. The buyer should note that under CIF the seller is required to obtain insurance only on minimum cover. Should the buyer wish to have more insurance protection, it will need either to agree as much expressly with the seller or to make its own extra insurance arrangements.” Download the foreword to Incoterms® 2010 © Copyright ICC 2016 Page 2 of 2Incoterms Rules | Incoterms 2010 | Trade Facilitation | Products... 6/15/2016http://www.iccwbo.org/products-and-services/trade-facilitation/i...