Practice point: In opposing a motion to dismiss pursuant to CPLR 3211(a)(8), on the
ground that discovery on the issue of personal jurisdiction is
necessary, a plaintiff need not make a prima facie showing of
jurisdiction, but must only set forth a sufficient start and
show that its position is not frivolous.
Here, plaintiff's president's affidavit established
that facts may exist to support the exercise of personal jurisdiction
over the defendant, and thus the plaintiff made a sufficient start in
showing that further discovery on the issue of personal jurisdiction is warranted. Under those circumstances, the Supreme
Court should have exercised its discretion pursuant to CPLR 3211(d) to
deny the motion without prejudice to renew upon the completion of
such discovery.
Student note: The jurisdictional issue is likely to be complex. Discovery
is desirable and may be essential, and likely will lead to a more accurate judgment than one made solely on the
basis of inconclusive preliminary affidavits.
Case: Expert Sewer & Drain, LLC v. New England Mun. Equip. Co., Inc., NY Slip Op 03298 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: An allegedly defective staircase.
