Town & Country Enterprises, Inc. v. Kibel Bldg. Co., 34 A.D.2d 820, 311 N.Y.S.2d 608 (N.Y.A.D. 2 Dept., May 18, 1970)

     
      

Supreme Court, Appellate Division, Second Department, New York.

TOWN AND COUNTRY ENTERPRISES, INC., Respondent,
v.
KIBEL BUILDING CO., Inc., Appellant, et al., Defendant.


May 18, 1970.


 Action to recover damages for breach of contract.  The District Court, Suffolk
County, granted a motion to dismiss for lack of jurisdiction, but the Supreme
Court, Appellate Term, reversed, and appeal was taken.  The Supreme Court,
Appellate Division, held that subcontracting of substantial work by a
nonresident corporate contractor to resident contractor to be performed by
latter on real property situated in Suffolk County did not constitute the
transaction business 'within the district of the court in the county' where work
was to be performed at Westhampton Beach, which reviewing court would judicially
notice was within the Town of Southampton in Suffolk County, while the
territorial jurisdiction of Suffolk County District Court did not encompass the
Town of Southampton.

 Order of Appellate Term reversed, order of District Court affirmed.


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Subcontracting of substantial work by a nonresident corporate contractor to
resident contractor to be performed by latter on real property situated in
Suffolk County did not constitute the transaction business "within the district
of the court in the county" where work was to be performed at Westhampton Beach,
which reviewing court would judicially notice was within the Town of Southampton
in Suffolk County, while the territorial jurisdiction of Suffolk County District
Court did not encompass the Town of Southampton. Uniform Dist.Ct.Act, §  404.
 **608 *820 Joseph D. Stim, Farmingdale, for plaintiff-respondent.

 Dreyer & Traub, Samuel Kirschenbaum, New York City, for Kibel Building Co.,
Inc., defendant-appellant.


 Before CHRIST, P.J., and RABIN, HOPKINS, MUNDER and BRENNAN, JJ.


 MEMORANDUM BY THE COURT.

 In an action to recover damages for breach of contract, defendant Kibel
Building Co., Inc. appeals from an order of the Appellate Term of **609 the
Supreme Court for the Ninth and Tenth Judicial Districts, dated June 18, 1969,
which reversed an order of the District Court of Suffolk County, Second
District, dated January 13, 1969, granting said defendant's motion to dismiss
the complaint for lack of jurisdiction.

 Order of the Appellate Term reversed, on the law and the facts, and order of
the District Court affirmed, with $10 costs and disbursements to defendant Kibel
Building Co., Inc. on each of the two appeals.

 Defendant Kibel Building Co., Inc. maintains its principal office at Riverdale,
Bronx County, New York.  It maintains no office in Suffolk County. It entered
into a contract which it signed at its Riverdale office, with plaintiff, a
corporation with an office in Suffolk County, to construct a swimming pool on
property at Westhampton Beach.  Plaintiff instituted thisaction in the District
Court of Suffolk County by service of the summons and complaint on said
defendant in Bronx County.  Kibel's motion to dismiss the complaint for want of
jurisdiction over the person was granted by the District Court.  The Appellate
Term reversed and denied the motion.

 The Appellate Term concluded that the subcontracting of substantial work by a
nonresident corporate contractor to a resident contractor to be performed by the
latter on real property situated in Suffolk County constituted the transaction
of business within the county by the contractor within the meaning of section
404 (subd. (a), par. 1) of the Uniform District Court Act and, further, that it
also constituted a use of the land by the general contractor within the meaning
of paragraph 3 of the same subdivision of that section.

 We would agree with the Appellate Term if the work so subcontracted was to be
performed on real property within the territorial limits of the Suffolk County
District Court.  However, that work was to be performed at Westhampton Beach,
which we may judicially notice is within the Town of Southampton in Suffolk
County.  The territorial jurisdiction of the Suffolk County District Court
encompasses only the Towns of Babylon, Huntington, Islip, Smithtown and
Brookhaven.  There is no district of the Suffolk County District Court in the
Town of Southampton.

 Section 404 of the Uniform District Court Act is a counterpart of the Long Arm
Statute found in CPLR 302.  In pertinent part it provides:
'(a) * * * The court may exercise personal jurisdiction over may non-resident of
the county, * * * as to a cause of action arising from any of the acts
enumerated in this section * * * if * * * he:
1.  Transacts any business within a district of the court in the county; or
**610 3.  Owns, uses or possesses any real property situated within a district
of the court in the county.'

 Because the instant nonresident defendant transacted no business 'within a
district of the court in the county', the order of the District Court dismissing
the complaint was proper.

311 N.Y.S.2d 608, 34 A.D.2d 820

END OF DOCUMENT