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Jay Breakstone
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Perchance To Dream

We are not sleeping well lately. The house has emptied out, with only The Rose remaining. But she is an adult, a schoolteacher, who treats us like errant students who are regularly chided for having not done their homework. If we forget to buy fresh bananas, we are given demerits, the effect of which we do not know. 

Last night was the strangest night of all.We dreamed that we had come home late, only to find that radio host Howard Stern had arrived earlier and wanted to sit up all night and talk. For some stranger reason, he wanted to sleep in our bed next to our wife, who simply rolled over and didn't seem to mind at all. We pressed the issue with Howard, who was stretched out on our side of the bed, head thrown back and hands clasped behind his head. We eventually convinced him that his conduct was rather inappropriate. At that point, Stern went downstairs and slept in the now empty bed of the Heir to the Throne.

Howard became restless, however, so the two of us found ourselves sitting in a clever cafe in Great Neck, watching the street scene. We must admit we though his curly hair was lovely and looked curiously like our wife's. He spoke of existential issues and we gave him pithy, psycho-babble advice about his life and the direction it was taking. Then wacky fans discovered him and our quiet moment was destroyed as he walked off with them. Though we began walking in the same direction, he lagged behind us while we meandered off towards morning and the 7:00 alarm.

What does this all mean? Hell if we know. We are a lawyer and can scarcely predict what the Second Department will do on a slip and fall case in a supermarket in Bensonhurst (well, we can, but that doesn't help the story.) Uncle Sigmund said that dreams are iterations of repressed wishes; understand the dreams and you understand the longings of the unconscious mind. So what? We started in radio news, perhaps that's it. We want to be a radio star married to a beautiful blond wife like Howard (there's the bed.) Oh, and own a trendy cafe in Great Neck. See how easy that was? When we shared this searching analysis with She Who Must Be Obeyed the next morning, her reading of the problem was just a bit different. She ascribed the dream to a spicy falafel ball from our dinner the night before. Don't eat spicy foods before you go to sleep; don't dream of Howard Stern in your bed with your wife. She's probably right. 

Justice Pritzker of the Third Department revisits his court's prior decision in this case, Gotlieb v. Merrigan (119 AD3d 1054 [3d Dep't 2014]), to deal with a jurisdictional issue. A New York client retained plaintiff, a New York attorney, to represent him in a personal injury action which occurred in Massachusetts during the scope of the client's employment by a New York corporation. The client then discharged plaintiff and hired defendants, Massachusetts lawyers. The action was settled for $800K. The NY attorney now brings this action against the MA attorneys for contingency fees of $66,788.39 (25% of defendants' contingency fee plus expenses), representing the value of the NY attorney's services prior to the MA defendants taking over the case. Defendants move to dismiss for lack of jurisdiction.

After having originally been reversed and remitted for further discovery and a note of issue, Supreme Court granted defendants' motion to dismiss and the Third Department now affirms. 

Under CPLR 302(a)(1), a NY court can exercise personal jurisdiction over a non-domiciliary based upon the transaction of business within the state or having contracted anywhere for services in NY and the cause of action arises from that business transaction. The burden is plaintiff's. Defendant's actions in NY must be "purposeful" such that defendant is availing himself of the state's benefits and the protection of its laws.

Whatever that means, this isn't it. Defendants never solicited the client in NY to represent them in a personal injury action in MA. Though they sent letters to medical providers in NY to obtain medical records, those actions were "responsive in nature" and only served the convenience of the client whose medical treatment took place in NY. The fact that the client signed a release in NY before a NY notary is meaningless, as that was for the convenience of the client and was not the purposeful use of NY courts. Defendants' contacts with the client's worker's compensation carrier were not "negotiations," but merely an inquiry into their lien without any negotiation. As such, it was only "ministerial." Since the 25% share in the contingency fee that plaintiff seeks was based on the retainer agreement, reimbursement of any worker's compensation lien would not affect that amount anyway even if considered to be "transaction of business." 

Finally, defendants' email to the carrier in the MA action noting that plaintiff's counsel fees would be paid on a quantum meruit basis was not a guarantee to pay or a contract to provide goods and services, and was "not the kind of activity triggering personal jurisdiction." 



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Jay Breakstone
Jay L. T. Breakstone is one of the foremost appellate attorneys in the country in the field of personal injury. With over 30 years’ experience as a practicing attorney.

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