Cerrato v. Peter T. Roach & Assoc., P.C., CV-13167-13
- District Court Nassau County, First District Civil Part 3
- Judge Fred J. Hirsh
- For Plaintiff: Kimmel & Silverman, P.C.
- For Defendant: Peter T. Roach & Associates, P.C.
Cite as: Cerrato v. Peter T. Roach & Assoc., P.C., CV-13167-13, NYLJ 1202638796049, at *1 (Dist., NA, Decided January 8, 2014)
Judge Fred J. Hirsh
Decided: January 8, 2014
Kimmel & Silverman, P.C.
Peter T. Roach & Associates, P.C.
The following named papers numbered 1-5 submitted on this motion on November 7, 2013
Papers Numbered… Notice of Motion and Affidavits Annexed… 1-2
Notice of Cross-Motion and Affidavits Annexed… 3-4
Affirmation in Opposition… 5
Plaintiff Judith Cerrato ("Cerrato") moves for summary judgment in lieu of complaint. Defendant Peter T. Roach & Associates ("Roach") cross-moves to dismiss.
Cerrato moves to domesticate a default judgment entered against Roach on January 18, 2011 in the Superior Court Judicial District of Litchfield, Connecticut ("Connecticut Action).
Roach cross-moves to dismiss on the grounds the judgment entered in the Connecticut Action cannot be domesticated because Roach is not subject to the personal jurisdiction of the Superior Court of Connecticut.
Roach is a New York Professional Service Corporation that provides legal services. See, Business Corporation Law Article 15. Roach office is located in Syosset, Nassau County, New York. Roach asserts it does not have any offices in Connecticut and does not practice law in Connecticut.
Roach further asserts it was never served. The summons in the Connecticut action indicates Roach's address as 115 Eileen Way, Suite 103(A), Syosset, New York 11791. Roach claims it moved its office from that location in February 2009, before the Connecticut Action was commenced. Cerrato counters by establishing that even
though the summons states Roach office was on Eileen Way, service was actually made upon Roach at its present office address, 125 Michael Drive, Suite 105, Syosset, New York.
In July 2008, Roach apparently commenced an action in New York against Cerrato seeking to recover the balance due on a credit card issued by Citibank to Cerrato ("Citibank Action"). Neither Cerrato nor Roach provide the court with copies of the summons and complaint, judgment or any other documents relating to the Citibank Action.1 The only basis the court has for inferring an action was commenced by Roach on behalf of Citibank against Cerrato is the allegation in the complaint in the Connecticut Action that states Roach filed a civil suit on behalf of Citibank against Cerrato seeking to recover on a personal obligation due to Citibank.
The court also infers based upon the pleadings in the Connecticut Action that a default judgment was entered against Cerrato in the Citibank Action.2
Cerrato alleges in the complaint in the Connecticut Action that starting in November 2008 and running though December 2009, she received numerous and persistent telephone calls on her cell phone, at home and at her place of employment from employees of Roach who were attempting to collect the money alleged to be owed to Citibank.
Cerrato alleges in the complaint in the Connecticut Action she was not properly served with the summons and complaint in the Citibank Action.3 Cerrato's complaint in the Connecticut Action alleges she faxed a "cease and desist" letter in conformance with Federal Fair Debt Collection Practices Act, 15 U.S.C.§1692(c)c, to Roach in May 2009. Despite the cease and desist letter, Roach employees continued to make
numerous and persistent telephone calls to Cerrato on her cell phone, home phone and at her place of employment attempting to collect the amount claimed to be due and owing to Citibank.
Cerrato further alleges Roach employees contacted her husband in an attempt to obtain information that would permit Roach to enforce the judgment.
Cerrato commenced the Connecticut Action seeking a declaratory judgment declaring Roach's action constituted a violation of Chapter 669 §36-a-645, et. seq. of the Connecticut Banking Law for which Cerrato is entitled to actual and statutory damages, costs and attorney's fees.
Conn. Gen. Stat. §36a-646 prohibits a creditor from using abusive, harassing, deceptive, fraudulent or misleading representations or practices to enforce or collect a debt.
Cerrato alleged in her complaint in the Connecticut Action she is entitled to damages pursuant to Connecticut's Banking Laws because Roach employees made persistent annoying, abusive and harassing telephone calls to her and made false, deceptive and misleading representations in an effort to collect the debt.
Cerrato asserts she is entitled to summary judgment in this action because the judgment entered in the Connecticut Action is entitled to Full Faith and Credit.
Roach asserts the judgment entered in the Connecticut Action should not be domesticated because it is not subject to the jurisdiction of the Connecticut courts. Roach asserts it was not properly served.
Roach further asserts that even if it was properly served, the judgment cannot be domesticated because it is not subject to the personal jurisdiction of the Connecticut courts. Roach does not have an office in Connecticut. Roach does not practice law in Connecticut. Roach asserts it has not engaged in any activity in Connecticut that would subject it to the jurisdiction of Connecticut.
Article IV §1 of the United States Constitution, the Full Faith and Credit Clause, requires the New York courts give a foreign judgment the same validity and effect that it would have in the state in which the judgment was rendered. Matter of Farmland Dairies v. Barber, 65 N.Y.2d 51 (1985).
While the merits of a judgment entered in a sister state cannot be collaterally attacked in New York, a judgment debtor may challenge the judgment on the grounds the court rendering the judgment lacked personal jurisdiction over the defendant. Cadle
Co. v. Tri-Angle Associates, 18 A.D.3d 100 (1st Dept. 2005). New York courts will not domesticate a default judgment entered in a sister state where the sister state did not have personal jurisdiction over the defendant. City Federal Savings Bank v. Reckmeyer, 178 A.D.2d 503 (2nd Dept. 1991); and Siegel, New York Practice 5th §435.
The Connecticut Long-Arm Statute, Conn. Gen Stat.§52-59(b)(a) provides that Connecticut has jurisdiction over a non-resident who transacts business within the state. The Connecticut Long-Arm Statute permits Connecticut to exercise jurisdiction over a non-resident provided the non-resident transacted business in Connecticut and the cause of action arose out of that transaction. Ryan v. Cerullo, 282 Conn. 109 (2007); and The Doyle Group v. Alaskans for Cuddy, 146 Conn.App. 341 (2013). A single transaction of business is in Connecticut is sufficient. Id.
Cerrato asserts that Roach's employees making persistent and repeated telephone calls into Connecticut to collect the money alleged to be owed to Citibank constitutes transaction of business in Connecticut sufficient to subject Roach to the jurisdiction of the Connecticut court.4
In order to transact business in Connecticut for the purposes of its long-arm statute, the defendant must engage in purposeful activity within Connecticut. Pro Performance Corporate Services v. Goldman, 47 Conn.Supp 476 (Jud. Dist. of Stamford-Norwalk 2002). Merely making telephone calls into Connecticut is insufficient to subject a non-resident to Connecticut's jurisdiction. Custom Navigation Systems, Inc. v. Pincus, 935 F.Supp. 117 (D. Conn 1995). In order to be subject to the jurisdiction of the Connecticut courts, a non-resident must engage in some other meaningful activity in Connecticut. Pro Performance Corporate Services v. Goldman, supra.
If the statutory requirements have been met, the Connecticut courts then determine whether the exercise of jurisdiction over the defendant would violate constitutional principles of due process. Knipple v. Viking Communications, Ltd., 236 Conn. 602 (1996). In order to meet the requirements of due process, the defendant must have minimum contacts with the jurisdiction such that maintenance of an action against the defendant does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310 (1945); and Thomason v.
Chemical Bank, 234 Conn. 281 (1995).
Plaintiff has the burden of establishing that the foreign court had personal jurisdiction over the defendant. Cadel Co. v. Tri-Angle Associates, supra.
In order for an out-of-state attorney to be subject to the jurisdiction of the courts in Connecticut, the attorney must engage in more than simply communicating with a Connecticut resident. Green v. Simmons, 100 Conn.App. 600 (2007). See, Walshon v. Ballon Stoll Bader & Nadler, P.C., 121 Conn.App.366 (2007); See also, Liberatore v. Calvin, 293 A.D.2d 217 (1st Dept. 2002).
Cerrato offers no evidence that Roach engaged in any purposeful activity in Connecticut other than having its employees make telephone calls to a person who resides in Connecticut. This is not sufficient purposeful activity in Connecticut so as to subject Roach to the long-arm jurisdiction of the Connecticut courts.
Additionally, traditional notions of fair play and substantial justice establish a New York State law firm is not subject to the jurisdiction of the courts of another state relating to activities performed in New York. If Cerrato's premise is accepted by this Court, then any New York attorney who makes a business related telephone call into another state would be subject to the jurisdiction of that state. This Court concludes Roach's conduct is insufficient both on a transaction of business basis or on a substantial justice basis to subject it to the jurisdiction of the courts of Connecticut. Therefore, the judgment entered in favor of Cerrato cannot be domesticated in New York.
Accordingly, it is
ORDERED, that plaintiff's motion for summary judgment is denied; and it is further
ORDERED, that defendant's cross-motion for summary judgment is granted. The action is dismissed.
This constitutes the decision and order of this Court.
Dated: January 8, 2014
1. Neither Cerrato nor Roach state when and/or in which Court the Citibank Action was commenced, when or how Cerrato was served with the summons and complaint in the Citibank Action and/or if and when a judgment was entered against Cerrato in the Citibank Action.
2. Cerrato does not allege in her complaint in the Connecticut Action or in the papers submitted to the court in connection with these motions whether she has ever made an application to the court in which the judgment in the Citibank Action was entered to vacate the judgment. Neither Cerrato nor Roach indicate whether Roach has ever attempted to domesticate the judgment in the Citibank Action in Connecticut.
3. Although the complaint in the Connecticut Action alleges Cerrato was not properly served in the Citibank Action, the complaint in the Connecticut Action does not allege how or where Cerrato was purportedly served in the Citibank Action or why service was improper. Neither party has provided the court with a copy of the affidavit of service in the Citibank Action.
4. The Connecticut Long-Arm Statute, Conn. Gen. Stat. §52-59(b)(a) provides other grounds for asserting jurisdiction over non-residents. However, Cerrato does not assert any of the other provisions of the Connecticut Long-Arm Statute provide a basis for jurisdiction over Roach.