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1
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OPINION
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EXTRACTED KEY WORDS
DEFENDANT JURISDICTION PLAINTIFF JURISDICTIONAL DEFENSE AGREEMENT EQUIPMENT ASSERTION APPELLATE DIVISION DISMISS COMPLAINT TRANSACTIONS MAJORITY PARTIES AD2D NY2D JUDGE BREACH ORAL PARTNERSHIP AGREEMENT TRIAL COURT IKF YORK SMITH SELLS SALE PERSONAL JURISDICTION PRIOR DAMAGES BUSINESS PLANT |
TEXTILE TECHNOLOGY EXCHANGE, INC., RESPONDENT, v. JACK DAVIS, APPELLANT.
81 N.Y.2d 56, 611 N.E.2d 768, 595 N.Y.S.2d 729 (1993).
April 1, 1993
3 No. 62 (1993 N.Y. Int. 64)
Decided April 1, 1993
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Robert M. Cohen, for Appellant.
Michael J. Connolly, for Respondent.
_________________________________________________________________
SMITH, J.:
Plaintiff is a North Carolina corporation which buys and sells new and
used textile mill equipment. Defendant is a New York rigger who
handles the removal, transporting, repair and resale of such
equipment. Plaintiff commenced this action for breach of a February
1986 oral partnership agreement in which defendant was to sell
equipment owned by the plaintiff and divide the profits equally. It
was alleged that the defendant did not account for the proceeds of the
sale of various equipment. Defendant denied the allegations, asserted
the affirmative defense of lack of personal jurisdiction (improper
service), and asserted a counterclaim based upon "an agreement
heretofore entered into between the parties to this action, wherein
and whereby the plaintiff agreed to compensate the defendant for
certain goods and services provided by the defendant, within six (6)
years last past" for sums due and owing.
At the conclusion of the trial, defendant moved to dismiss the
complaint for lack of jurisdiction. The trial court denied the motion,
holding that the jurisdictional defense had been waived by the
assertion of a counterclaim that was unrelated to the plaintiff's
claim. This was based upon the finding that the complaint was based
upon a contract "entered into in February 1986" but the counterclaim
involved "several transactions which arose prior to February, 1986."
On the merits, the trial court ruled that plaintiff's proof
established a breach by the defendant, awarded damages and dismissed
the counterclaim because the defendant had failed "to establish his
cause of action."
By a 3-2 majority, the Appellate Division agreed that the
SNIPPETS:
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