The following papers read on this motion:Notice of Motion and AffidavitsMemorandum of Law in Support of MotionAffirmation in OppositionMemorandum of Law in Support of OppositionReply AffirmationRELIEF REQUESTED The defendant moves for an order pursuant to CPLR §§3211(a)(8) and 327 on the grounds that this Court does not have jurisdiction over the defendant. The defendant submits a Memorandum of Law in support of the motion. The plaintiff submits opposition and a Memorandum of Law in support of the opposition. The defendant submits a reply.BACKGROUNDThe plaintiff initiated this action sounding in breach of contract, preliminary injunction, and permanent injunction. The plaintiff alleges, inter alia, that he resides in Jericho, New York, the defendant resides in Houston, Texas, and sometime in August of 2016, the plaintiff and defendant purchased a horse, later named Doctor Baskin, in Saratoga Springs, New York. The plaintiff alleges that he and the defendant are fifty percent, (50 percent), owners of the horse, plaintiff made payment by way of two checks issued in New York, and the “Ownership Agreement” provides, in pertinent part, that Dr. Baskin, a 2015 Colt Steel Shed by the Factor, was purchased at the Saratoga August Yearling Sale by the plaintiff and defendant. The complaint also provides that Dr. Baskin received additional training in Elmont, New York, raced at Belmont Park in Elmont, New York, on October 14, 2017 and won first prize. The plaintiff alleges that he does not consent to sell Dr. Baskin, and defendant advised the plaintiff that if they could not agree to a buyout in June of 2018, the defendant would start the necessary paperwork to auction Dr. Baskin in a July auction.The defendant avers that he was not present in New York at the time that Dr. Baskin was purchased, that he initially purchased the horse with one hundred percent, (100 percent), of his funds, and thereafter, plaintiff paid the defendant for an interest in the horse by way of two checks. The defendant acknowledges that as owners, the plaintiff and defendant was required to, and did in fact, obtain a license from the State of New York, by the New York State Gaming Commission and “[l]uckily, Dr. Baskin was able to eke out a first-place finish against this group of non-winners” in Dr. Baskin’s first race at Belmont Park, New York. The defendant avers that thereafter, Dr. Baskin raced in New Orleans, Louisiana, and “[i]n this, Dr. Baskin’s second race, he finished a well-beaten sixth.” The defendant provides that currently, the horse, Dr. Baskin, is located in Kentucky, and therefore, as plaintiff refused to buy defendant’s interest or sell plaintiff’s interest, the plaintiff initiated a lawsuit in Fayette Circuit Court, Civil Division, in Lexington, Kentucky, on or about June 27, 2018, apparently after plaintiff initiated the instant action, as plaintiff’s complaint is dated June 7, 2018.The plaintiff, in opposition, avers that the defendant attended the Fasig-Tipton New York August Bred Yearling Sale in Saratoga Springs, New York, in August 2016, and shortly thereafter, telephoned the plaintiff in New York and asked the plaintiff to enter into a partnership with him and race the horse. The plaintiff avers that he and plaintiff, on August 14, 2016, through a buying agent, purchased the horse located in Saratoga Springs, New York, for one hundred twenty thousand and 00/100 dollars, ($120,000.00), and plaintiff paid his interest thereafter by way of two checks from New York Accounts. The plaintiff avers that he received the Ownership Agreement which he signed and notarized on October 10, 2017 in Jericho, New York. The plaintiff avers that the horse, Dr. Baskin, received initial training in Florida, and was later trained in Elmont, New York, for several months. The plaintiff avers that he and the defendant obtained the requisite licenses with the New York State Gaming Commission, to engage in horse racing in New York, that the defendant’s New York license expires on September 20, 2018, and the plaintiff’s New York license expires on August 27, 2019. The plaintiff further avers that Dr. Baskin first race was on October 14, 2017, at Belmont Park, in Elmont, New York, and won first place. The plaintiff avers that he does not consent to sell Dr. Baskin.APPLICABLE LAWNew York’s long-arm statute confers “personal jurisdiction over any non-domiciliary” who “in person or through an agent…transacts any business within the state” where the claims arise from that business activity. CPLR §302(a)(1). Unlike CPLR §301 which generally requires that a party be present and doing business in the State to confer jurisdiction, CPLR §302(a)(1) is a “single act statute” and proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant’s activities were purposeful and there is a substantial relationship between the transaction and the claim asserted. (Kreutter v. McFadden Oil Corp., 71 NY2d 460). However, the inquiry under CPLR §302(a)(1) involves the examination of purposeful acts on defendant’s behalf which may or may not demonstrate that the defendant has purposefully availed himself of the benefits and protections of this State. (Southern Industries of Clover, Ltd. v. Tex-Cellence, Inc., 801 NYS2d 242). Merely shipping goods to New York without other purposeful activities within New York will not give rise to CPLR §302(a)(1) jurisdiction (Id., citing McGowan v. Smith, 52 NY2d 268).The New York Court of Appeals has made clear that, when considering whether a defendant has “transacted business” in New York within the meaning of the state’s long-arm statute, the fact that the defendant is not “physically present in New York” is “immaterial.” (Fischbarg v. Doucet, 9 NY3d at 380-81. Further, the long-arm statute explicitly applies to a person who “transacts in person or through an agent.” CPLR §302(a)(1). In Parke-Bernet Galleries v. Franklyn, 26 NY2d 13, the Court of Appeals held that, based on the materiality of this transaction, the defendant had transacted business in New York within the meaning of CPLR §302(a)(1), as the defendant, acting through his agent, participated in the auction “which resulted in the paintings’ [sic] being sold to him,” and which “amounted to the sustained and substantial transaction of business here.” (Id.)DISCUSSIONHere, the plaintiff and the defendant, agreed to purchase a horse located and presented in Saratoga Springs, New York, agreed to race the horse in New York, the defendant signed the agreement in New York, the subject horse was raced in Belmont, New York, was trained in New York, and the plaintiff and the defendant both obtained licenses to race the horse in New York. Accordingly, upon examination of the purposeful acts on the defendant’s behalf, the plaintiff has demonstrated that the defendant has purposely availed himself of the benefits and protections of the State of New York.CONCLUSIONUpon the foregoing, it is herebyORDERED that the defendant’s motion is denied, and it is hereby FurtherORDERED that the parties are hereby directed to appear for a Preliminary Conference which shall be held at the Preliminary Conference part located at the Nassau County Supreme Court on the 24th day of October, 2018, at 9:30 A.M. This directive, with respect to the date of the Conference, is subject to the right of the Clerk to fix an alternate date should scheduling require. The attorneys for the plaintiff shall serve a copy of this order on the Preliminary Conference Clerk and the attorneys for the defendants.Dated: September 11, 2018
