Ferrante Equipment Co. v. Lasker-Goldman Corp.

Tilzer, J.

This is not a case where a nonresident defendant’s minimal contacts with New York were such as to subject him to the jurisdiction of the courts of this State. The fourth-party defendant-appellant’s only act affecting this State was his execution in his domicile, the State of New Jersey, of an indemnity agreement personally indemnifying the fourth-party plaintiff-respondent insurance company against losses it might sustain arising out of a subcontract to be performed by a third party in New York. The fact that the subcontract for which the respondent’s performance and payment bond was given was to be performed in New York was insufficient to sustain jurisdiction against appellant. He is being sued personally upon the indemnity agreement. The liberal statutory criterion (CPLR 302, subd. [a], par. 1) is not met by the unilateral acts of others engaged in performance of the subcontract in New York, nor by the circumstance that the appellant nondomiciliary may derive “commercial benefit ” from such contract. The mere receipt by a nonresident of benefit or profit from a contract performed by others in New York is clearly not an act by the recipient in this State sufficient to confer jurisdiction under our long-arm statute (CPLR, 302, subd. [a], par. 1; McKee Elec. Co. v. Rauland-Borg Corp., 20 N Y 2d 377; Longines-Wittnauer v. Barnes & Reinecke, 15 N Y 2d 443; Wirth v. Prenyl, S. A., 29 A D 2d 373; Hubbard, Westervelt Mottelay v. Harsh Bldg. Co., 28 A D 2d 295).

The order should be reversed, on the law, and fourth-party defendant-appellant’s motion to dismiss for lack of jurisdiction should be granted, with costs and disbursements to defendant-appellant.