Section 302(a) provides in relevant part:

A court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:

1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or
   2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or
   3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he

(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or

4. owns, uses or possesses any real property situated within the state.

CPLR § 302 emphasis added

A plaintiff who had their constitutional rights violated by a federal agent or by an out of state law enforcement personnel can establish jurisdiction based on either Section 302(a)(2) and/or 302(a)(3).  Based upon CPLR § 302(a)(2) a venue acquires personal jurisdiction over a defendant when the defendant, “commits a tortious act within the state”  Davis v. United States, 2004 U.S. Dist. LEXIS 2551, 03civ1800 (NRB), 2004 WL 324880, (S.D.N.Y. Feb. 19, 2004) (finding personal jurisdiction over an out-of-state law enforcement agent under §302(a) based on the fact that the agent was present in the State of New York during the arrest),  CPLR § 302(a)(2).  Furthermore, in federal cases involving § 1983 claims arising out of a single arrest in New York State of which the out-of-state defendant was present and participated in the actual arrest it is held that the defendant is subject to suit in New York pursuant to CPLR § 302(a).  Under this set of facts Davis v. United States, unequivocally finds a sufficient nexus for personal jurisdiction.

“At the center of plaintiff’s case is his arrest, which occurred within New York State. As it is undisputed that Agent Delia was present at and participated in plaintiff’s arrest, this Court has jurisdiction over him for claims arising out of that arrest. Because each of plaintiff’s claims is related to the criminal investigation and prosecution that were carried out with respect to plaintiff, there is a sufficient nexus between the jurisdictional act and the present causes of action. Accordingly, this Court may properly exercise jurisdiction over Agent Delia.”

Davis v. United States, 2004 U.S. Dist. LEXIS 2551, 03civ1800 (NRB), 2004 WL 324880, at LEXIS 15-16 (S.D.N.Y. Feb. 19, 2004) 

Further, “Plaintiffs need not show regular or continuous activity in the state; even a single act within New York is sufficient to confer jurisdiction under § 302(a) if it has sufficient nexus with the cause of action.'” Davis v. United States, 2004 U.S. Dist. LEXIS 2551, 2004 WL 324880, at *5 (S.D.N.Y.) (quoting Correspondent Servs. Corp. v. J.V.W. Investments Ltd., 120 F.Supp.2d 401, 404 (S.D.N.Y. 2000)). One transaction is sufficient to support jurisdiction under § 302 “so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted.” Elmaghraby, 2005 U.S. Dist. LEXIS 21434, [WL] at *9 (quoting Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 467, 522 N.E.2d 40, 527 N.Y.S.2d 195 (1988)).  See also Scott v. NASCAR, 2008 U.S. Dist. LEXIS 5039 (S.D.N.Y. Jan. 17, 2008).  Clearly, as discussed in Davis the act of traveling to the state of New York in order to participate in an arrest of a New York resident creates a sufficient nexus between the jurisdiction and the defendant to acquire jurisdiction under§ 302.

Here is an example, a person is tragically hit by a vehicle while crossing the street and dies as a result.  Now let’s assume that person died without a will and had no living children, parents, siblings or grandparents.  When a person dies without a will, their estate will be divided pursuant to the New York EPTL, and must be administrated by an administrator who qualifies under New York Law.  In order to qualify under NY EPTL the administrator must be a distributee (must receive monetary benefit from the estate) and must be an immediate family member i.e. spouse, parent, grandparent, sibling, adult child (there are other technical ways for guardians to become administrator but that will not be covered in this article).  If no distributee qualifies to be an administrator, the Public Administrator of the County where the decedent resided must be petitioned to be the administrator of the estate.  The Public Administrator is a public authority who will administer the estate of decedents who do not have an administrator.  So, if the decedent died as a result of third party negligence then the Public Administrator would be the plaintiff in charge of the lawsuit.  The Public Administrator will also retain the lawyer who will handle the wrongful death case for the estate.  When the lawsuit is complete and if there is a monetary recovery the Public Administrator will then distribute the money to the proper distributees of the estate.

Under normal circumstances the administrator of an estate would be the living spouse or adult child of the decedent.  This makes sense because they would be the primary recipient of any monetary funds that would be derived from a wrongful death action.  New York Law mandates that only an immediate family member who is a direct distributee of the estate can be appointed administrator of the estate.  The law also mandates that only select close family members may be qualified to administrate the estate.  So, if you are the soul distributee but are only a cousin of the decedent, you may not administrate the estate.  Instead you must use the services of the Public Administrator.  The Public Administrator and their attorney are entitled to a percentage fee of the ultimate recovery for their services.  Sometimes this process can be confusing and it is important that you seek the guidance of an attorney who is well versed in this field.

Giampa Law has been handling wrongful death actions for New York residents for over thirty years.  The attorneys at Giampa Law are well versed in dealing with the Public Administrator and can also help a qualified family member become Administrator of their loved one’s estate.  If you believe that your loved one has wrongfully died as a result of a third party and believe their estate is entitled to compensation please contact Giampa Law.

So what’s next?  How do you get the case restored to the trial calendar?  In our particular case, the matter was venued in Queens.  Pursuant to local TSP part rules, a stipulation is the first option for getting the case restored.  The TSP part can provide a template stipulation which can be signed by all parties to restore the case to the calendar.  The substance of the stipulation states that 1.  all discovery is complete; 2. specifies a date the Note of Issue is to be filed, and 3. specifies a date a conference is to be held, 90 days after the Note of Issue is filed.

In our consolidated action, getting all parties to stipulate to returning the case to the calendar was simply not possible – getting all parties to agree was a non-starter – which leads to the second option for restoring the matter to the trial calendar, a motion to restore.

First, the motion to restore requires an Affirmation of Attempts to comply with the aforementioned TSP part rules.  Simply stated, the Affirmation of Attempts states that you attempted to get all parties to sign the stipulation but were unsuccessful.  In Queens County, the Affirmation of Attempts must be affixed to the Notice of Motion.

Second, the substance of the motion should note that when the note of issue has been vacated, the case reverts to its status as a pre-note case.  Andre v. Bonetto Realty Corp., 32 A.D.3d 973, 974 (2d Dep’t 2006).   Further, in the absence of a 90-day notice pursuant to CPLR 3216, restoring a case marked inactive is automatic.  Matter of Transtechnology Corp. v. Assessor, 71 A.D.3d 1034, 1037-1038 (2d Dep’t 2010); Andre v. Bonetto Realty Corp., 32 A.D.3d 973, 974 (2d Dep’t 2006); Klevanskaya v. Khanimova, 21 A.D.3d 350 (2d Dep’t 2005).

Third, as a practical matter, when the case involves consolidated actions and other parties are hampering or hindering the prosecution of the case, it may be wise to include in the motion to restore a branch seeking severance pursuant to CPLR §603, if required, preferable, convenient, or necessary to restore the matter to the trial calendar.  When arguing in support of severance, demonstrating prejudice to your client is necessary to sever the matters.  Has your client suffered as a result of the delay? Has your client become of recipient of public assistance as a result of the delay?  These two examples can demonstrate prejudice in support of severance.

While restoring a matter to the calendar can be tedious, it is necessary to move the case forward.  Hopefully after reading our blog, restoring a case to the calendar will become a little easier for you – should you end up marked off the active calendar.

Thank you for taking the time to read our blog.

If a decision gives a direct order to serve with notice of entry within a specific time frame, failure to do so shall make the decision irregular and void.  Moreover, if a decision has language such as to serve all parties “without undue delay” it could be considered a violation of CPLR § 2220(a) if the winning party waits to long to serve the decision with notice of entry on their adversaries.  The civil procedure rules clearly state that a violation of CPLR § 2220(a) may result in deeming the order irregular and vacating the same.

We recently had a case where an adversary waited a year to serve a decision granting him summary judgment with notice of entry and failed to provide any good cause reason for their year long delay.  Moreover, they were directed by the Court to serve “without undue delay”.  Under no circumstances could the defendant-respondent’s year long delay in serving the order with notice of entry be considered “without undue delay”.  In most circumstances the service of an order should be accomplished within thirty (30) days of its filing.  Defendant waited twelve (12) months which clearly shows undue delay.  This issue is currently pending before the second department and we will soon see what the ultimate decision will be.

Now there are other oral decisions which a judge may render for the bench and then require the winning party to order the Court minutes so that they may be signed and filed.  Failure to submit the transcribed decision to the Court for signature within thirty days will make the decision null and void as per the New York Code Rules & Regulations.

First, a plaintiff is entitled to receive money damages for economic loss and for pain and suffering. Economic loss is awarded to compensate the plaintiff for money that was lost or will be lost as a result of the injury.  For instance, if you were involved in a car accident and were unable to work for a certain period of time you are entitled to be compensated from the liable party for your lost wages.  You are also entitled to be reimbursed for medical expenses along with additional out of pocket expenses that you were forced to pay as a result of the accident.  These numbers can be easily calculated by adding up your lost wages and your lost expenses, a plaintiff is entitled to receive full compensation for all of their past economic damages.

If the plaintiff is continuing to have ongoing medical care and/or is unable to go back to work at the time of the trial/settlement, the injured party may also be entitled to receive compensation for future economic damages.  These damages are more speculative and often necessitate expert witness testimony.  Future economic damages include future medical care, future surgeries and future monetary income from a job that you can no longer perform.  If properly established, a plaintiff is entitled to receive full compensation for these future economic damages.  These medical damages are calculated by adding up your foreseeable medical expenses along with any future medical expenses.  Future lost earnings are calculated by adding up what your future income would have been and may include future raises or promotions that you would have been entitled.

A plaintiff is also entitled to receive money damages for all of the pain and suffering they have endured since the date of the accident, along with the future pain and suffering they continue to endure as a result of the injury.  These non-economic damages are much harder to value and are subjective to the evaluator.  It is interesting to note that the demographics of the County in which you filed your lawsuit have a large impact on how much your pain and suffering is worth.  Statistics show that juries in some New York Counties value pain and suffering greater than other Counties.  Therefore, the same case in one County could be worth substantially more than if it is brought in another County within New York State.  It is a factor that must be considered when initially filing a lawsuit.

Damages can also be reduced depending on the extent of the liability of the defendant party.  If the plaintiff is partially responsible for the accident the value of the case will be reduced by that percentage which is the plaintiff’s own fault.  Also, the plaintiff’s recovery may also be reduced if they have a pre-existing injury which effects the portion of the body which was involved in the accident in question.

While this is by no means a comprehensive description of everything that goes into valuing a personal injury case, it is a basic outline to follow when determining what a case may be worth at settlement or trial.

In responding to a Defendants’ motion to dismiss for lack of personal jurisdiction, the plaintiff bear the burden of showing that jurisdiction exists over the defendants. See Distefano v. Carozzi North America, Inc., 286 F.3d 81, 84 (2d Cir. 2001). However, pre-discovery plaintiffs “need only make a prima facie case showing” that the Court has jurisdiction over the defendants. Id.  Plaintiffs “need not show regular or continuous activity in the state; even a single act within New York is sufficient to confer jurisdiction under § 302(a) if it has sufficient nexus with the cause of action.” Correspondent Servs. Corp. v. J.V.W. Investments Ltd., 120 F. Supp.2d 401, 404 (S.D.N.Y. 2000) (citations omitted).

There is only one Court of Appeals case that has dealt with this specific personal jurisdiction issue.  Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001), overruled on other grounds as recognized by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119, 1125-26 (9th Cir. 2002).  In Lee the 9^th Circuit ruled that New York law enforcement officials “took the ‘deliberate actions’ of requesting that the LAPD arrange the extradition of a purported fugitive, using the California criminal justice system to accomplish the extradition, sending the LAPD an identification packet to facilitate the extradition, regularly communicating with the LAPD during the extradition process, and traveling to Los Angeles to escort the purported fugitive back to New York.” Id. at 693. The Court found that those New York defendants who participated actively in the plaintiff’s extradition to New York had “purposefully availed themselves of the privilege of conducting activities in California.” Id. at 694.

Under New York law, a court “may exercise personal jurisdiction over a non-resident defendant based either on general jurisdiction under [New York’s Civil Practice Law and Rules (“CPLR”)] § 301, or specific jurisdiction, under CPLR § 302.” Overseas Ventures, LLC v. ROW Mgmt., Ltd., No. 12-CV-1033, 2012 U.S. Dist. LEXIS 159097, 2012 WL 5363782, at *8 (S.D.N.Y. Oct. 26, 2012). “Under CPLR § 301 general jurisdiction, which arises out of a defendant’s contacts with the forum even if the contacts are unrelated to the action before the Court, is established over a foreign [defendant] engaging in a ‘continuous and systematic course of doing business in New York.'” TAGC Mgmt., LLC v. Lehman, 842 F. Supp. 2d 575, 581 (S.D.N.Y. 2012).  Under Section 302(a) the state can obtain long arm jurisdiction if:

Section 302(a) provides in relevant part:

A court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:

1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or
   2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or
   3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he

(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or

4. owns, uses or possesses any real property situated within the state.

CPLR § 302 emphasis added

Personal jurisdiction is acquired over the foreign state Defendants based on either Section 302(a)(2) and/or 302(a)(3).  Based upon CPLR § 302(a)(2) a venue acquires personal jurisdiction over a defendant when the defendant, “commits a tortious act within the state”  Davis v. United States, 2004 U.S. Dist. LEXIS 2551, 03civ1800 (NRB), 2004 WL 324880, (S.D.N.Y. Feb. 19, 2004) (finding personal jurisdiction over an out-of-state law enforcement agent under §302(a) based on the fact that the agent was present in the State of New York during the arrest),  CPLR § 302(a)(2).  Furthermore, in federal cases involving § 1983 claims arising out of a single arrest in New York State of which the out-of-state defendant was present and participated in the actual arrest it is held that the defendant is subject to suit in New York pursuant to CPLR § 302(a).  Under this set of facts Davis v. United States, unequivocally finds a sufficient nexus for personal jurisdiction.

“At the center of plaintiff’s case is his arrest, which occurred within New York State. As it is undisputed that Agent Delia was present at and participated in plaintiff’s arrest, this Court has jurisdiction over him for claims arising out of that arrest. Because each of plaintiff’s claims is related to the criminal investigation and prosecution that were carried out with respect to plaintiff, there is a sufficient nexus between the jurisdictional act and the present causes of action. Accordingly, this Court may properly exercise jurisdiction over Agent Delia.”

Further, “Plaintiffs need not show regular or continuous activity in the state; even a single act within New York is sufficient to confer jurisdiction under § 302(a) if it has sufficient nexus with the cause of action.'” Davis v. United States, 2004 U.S. Dist. LEXIS 2551, 2004 WL 324880, at *5 (S.D.N.Y.) (quoting Correspondent Servs. Corp. v. J.V.W. Investments Ltd., 120 F.Supp.2d 401, 404 (S.D.N.Y. 2000)). One transaction is sufficient to support jurisdiction under § 302 “so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted.” Elmaghraby, 2005 U.S. Dist. LEXIS 21434, [WL] at *9 (quoting Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 467, 522 N.E.2d 40, 527 N.Y.S.2d 195 (1988)).  See also Scott v. NASCAR, 2008 U.S. Dist. LEXIS 5039 (S.D.N.Y. Jan. 17, 2008).  Clearly, as discussed in Davis the act of traveling to the state of New York in order to participate in an arrest of a New York resident creates a sufficient nexus between the jurisdiction and the defendant to acquire jurisdiction under§ 302.

For example, our firm represented a client who spent months in jail only to have the charges dismissed for insufficient evidence.  A preliminary investigation by our firm revealed that the officer had likely falsified records including affidavits in support of search warrants, arrest reports, and a criminal complaint; in addition to having falsely testified before the grand jury.

The steep hill to climb in order to obtain disclosure of the grand jury minutes is detailed below:

Determination of the question whether disclosure should be permitted is addressed to, and rests in, the judge’s discretion.  While there is a strong presumption of secrecy in grand jury proceedings, this secrecy is not absolute.  People v. Di Napoli, 27 N.Y.2d 229, 234 (1970).

In order to be entitled to disclosure, the petitioner first must show a compelling and particularized need for access to them.  Aiani v. Donovan, 98 A.D.3d 972, 973 (2d Dep’t 2012) (granting release pursuant to CPL §190.25(4)).  A particularized need can be demonstrated by showing that the material sought is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that the request is structured to cover only material so needed.  Douglas Oil Co. v. Petrol Stops Northwest, 411 US 211, 222 (1979).

Once the threshold showing of a compelling and particularized need has been made, the court will then determine whether the public interest in secrecy of the grand jury is outweighed by the public interest in disclosure.  Absent a showing that sources other than the grand jury minutes are inadequate to provide the information sought, grand jury secrecy is held paramount.  In the Matter of District Attorney of Suffolk County, 58 N.Y.2d 436, 444 (1983).

he big problem in obtaining grand jury testimony is a United States Supreme Court case, Rehberg v. Paulk, 132 S. Ct. 1797 (2012), which held that a grand jury witness, including police officers, has absolute immunity with respect to any alleged perjury in the grand jury and such evidence cannot be used to support any § 1983 claim based on the witness’ testimony.  Since such evidence cannot be used to support a claim, oftentimes disclosure will be denied.  However, this very police officer friendly Supreme Court case is not meant to be an absolute immunity cloak that, once a police officer testifies in the grand jury, it suddenly shields him or her from all allegedly unconstitutional acts even if they are outside the scope of the grand jury appearance.  Coggins v. County of Nassau, 2013 U.S. Dist. Lexis 169792.  Rehberg does not justify absolute immunity where liability is based not on the witness testimony, but on other conduct laying the groundwork for an indictment – where perjury was but one additional step taken to push the case forward.  That is the key, to show other conduct laying the ground work and that the grand jury perjury was but one additional step, rather than the only step.

Lastly, disclosure of grand jury minutes has been permitted in civil cases in which there is a public interest in such disclosure.  Albert v. Zahner’s Sales Company, 51 A.D.2d 541 (2d Dep’t 1976).  A compelling public interest exists in assisting those who have been defrauded, and in deterring others who might engage in fraudulent conduct in the future.  Aiani v. Donovan, 98 A.D.3d 972, 974 (2d Dep’t 2012).

In sum, while obtaining disclosure of grand jury testimony is a step hill to climb, it’s not impossible.