• Arbeeny v Kennedy Executive Search, Inc.
  • March 8, 2011 | Author: James M. Wicks
  • Law Firm: Farrell Fritz, P.C. - Uniondale Office
  • In a January 14, 2011 decision by Justice Bransten, the Court was faced with a series of motions to dismiss for lack of personal jurisdiction, as well as for failure to timely serve the complaint pursuant to CPLR 306-b.  Plaintiff also moved for leave to amend and for an accounting.

    The complaint alleges that defendants failed to pay salary and commissions allegedly owed to plaintiff. Several defendants, Kennedy Associates (“KA”) and Jason Kennedy, moved to dismiss under CPLR 306-b, for failure to timely serve the complaint. The other defendants, Kennedy Executive Search, Inc. (“KES”) and Jack Kandy, moved to dismiss on the ground that service on KA, a British affiliate of KES, was not sufficient service on KES or Kandy.

    On the personal jurisdiction issue, plaintiff claimed that KES was “a mere department” of KA, which was validly served. The Court analyzed the “mere department” and agency theories of corporate presence developed under the Court of Appeals’ cases Taca Intern. Airlines, SA v. Rolls-Royce of England, Ltd. and Frummer v. Hilton Hotels Int’l, Inc., concluding that KES is indeed an agent of KA for jurisdictional purposes.

    As to KA and Kennedy, the Court held that plaintiff did not serve within the required 120 days of filing, and noted that plaintiff did not move to extend that time. In addition, the Court noted that the plaintiff could have served those defendants (both British citizens) through the Hague Convention. Accordingly, the complaint was dismissed without prejudice as to those defendants.

    The Court granted plaintiff’s motion for leave to file an amended complaint, but denied the application for an accounting. The Court reasoned that as an at-will employee, there was no fiduciary duty to establish a right to an accounting.