12-3383-cv
O’Mahoney v. Susser


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 30th day of July, two thousand thirteen.

PRESENT: CHESTER J. STRAUB,
                 REENA RAGGI,
                 PETER W. HALL,
                                 Circuit Judges.
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JOAN O’MAHONEY, as Administrator of the Estate of
Michael Howard Schwartz,
                                 Plaintiff-Appellee,
                          v.                                              No. 12-3383-cv

ALAN SUSSER,
                                 Defendant-Appellant.
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APPEARING FOR APPELLANT:                          RAYMOND A. CONNELL, ESQ., New York,
                                                  New York.

APPEARING FOR APPELLEE:                           ALBERT GUREVICH, ESQ., New York,
                                                  New York.
       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Nina Gershon, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on July 24, 2012, is AFFIRMED.

       Defendant Alan Susser appeals from a judgment awarding plaintiff Joan O’Mahoney

$161,000.00 in damages and $17,369.00 in attorney’s fees for Susser’s nonpayment of a

promissory note (the “Note”) owed to Michael Howard Schwartz, O’Mahoney’s late

husband. Susser faults the district court’s (1) refusal to dismiss for lack of personal

jurisdiction over him, and (2) award of summary judgment to O’Mahoney in the stated

amount when equity should have estopped her from claiming post-maturity interest on the

Note. We review de novo the denial of dismissal for lack of personal jurisdiction,

considering whether, on the basis of “affidavits and supporting materials,” plaintiff has made

a prima facie showing of jurisdiction. Southern New England Tel. Co. v. Global NAPs Inc.,

624 F.3d 123, 138 (2d Cir. 2010) (internal quotation marks omitted). We also review de

novo an award of summary judgment, affirming only if the record, viewed in the light most

favorable to the non-moving party, reveals no genuine dispute of material fact. See Fed. R.

Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); Sudler v. City

of New York, 689 F.3d 159, 168 (2d Cir. 2012). In conducting such review here, we assume

the parties’ familiarity with the facts and record of prior proceedings, which we reference

only as necessary to explain our decision to affirm.

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1.     Personal Jurisdiction

       Susser contends that the district court lacked personal jurisdiction over him because

his only contacts with the forum state were telephone calls between himself (in Florida) and

Schwartz (in New York) preceding execution of the agreement in their respective states.

This, he submits, is insufficient as a matter of law to satisfy the transaction-of-business

requirement of New York’s long-arm statute. See N.Y. C.P.L.R. § 302(a)(1); see also D.H.

Blair & Co. v. Gottdiener, 462 F.3d 95, 104 (2d Cir. 2006) (applying law of forum state to

issue of personal jurisdiction in diversity cases). Susser contends that no different conclusion

is warranted by his June 1998 meeting with Schwartz in New York as that meeting was

coincidental to Susser traveling to New York for unrelated reasons. As for the July 1998

family gathering in Mohonk, New York, Susser disputes his attendance and, in any event,

the admissibility of O’Mahoney’s hearsay account of her husband’s report of the meeting.

       In reviewing the district court’s determination that there was personal jurisdiction over

Susser, a review we undertake de novo, we

       constru[e] all pleadings and affidavits in the light most favorable to the
       plaintiff[s] and resolv[e] all doubts in the plaintiff[s’] favor. . . . [P]laintiff[s]
       must make a prima facie showing that jurisdiction exists . . . , [which] must
       include an averment of facts that, if credited by the ultimate trier of fact, would
       suffice to establish jurisdiction over the defendant.

Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012) (internal

quotation marks and citations omitted). It is error for a district court to resolve factual

disputes in favor of the defendant in the absence of an evidentiary hearing. See Dorchester

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v. Fin. Sec., Inc. v. Banco BRJ, S.A., - F.3d -, 2013 WL 3335784, at *4 (2d Cir. Jul. 3, 2013).

Thus, in the absence of an evidentiary hearing, which Susser never requested, or an argument

on summary judgment that the court lacked personal jurisdiction, which Susser never

advanced, we need here determine only whether the pleadings, affidavits, and accompanying

exhibits, viewed in the light most favorable to O’Mahoney, demonstrate a prima facie

showing of jurisdiction over Susser. See id.; see also Licci ex rel. Licci v. Lebanese

Canadian Bank, SAL, 673 F.3d at 59.

       Upon an independent review of the record, we conclude that it supports personal

jurisdiction based on Susser’s transaction of business in New York. See George Reiner &

Co. v. Schwartz, 41 N.Y.2d 648, 651, 394 N.Y.S.2d 844, 846 (1977) (noting that “single

transaction in New York w[ill] satisfy the statutory requirement”). It shows that it was

Susser who, after conducting a previous business loan transaction with Schwartz, knowingly

thrust himself into the state for the singular purpose of securing $100,000 from Schwartz, a

New York resident. Not only did Susser admit to making a series of telephone calls to New

York in order to negotiate the terms of the loan, but he also admitted to meeting Susser in

New York two months before he executed the Note. Although Susser claims that the New

York meeting “was a brief social contact for a drink,” Appellant’s Br. 11, 42, and not

initiated for purposes of negotiating the Note, he acknowledges that the Note was among the

matters discussed. See Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d

Cir. 2010) (noting that in prima facie review, “we construe the pleadings and affidavits in the


                                              4
light most favorable to plaintiffs, resolving all doubts in their favor”). Finally, after Susser

failed to repay the Note on time, he started sending payments to O’Mahoney in New York

in 2004, and in 2009, asked O’Mahoney to send him a list of payments received and interest

calculations so that he could “continue to move forward on the same page.” O’Mahoney

Aff., Mar. 3, 2011, Ex. 4, J.A. 39.

       Susser’s initiation of a transaction aimed at securing money from New York, his

meeting in New York with the lender and discussion of final details regarding the Note, and

his transmittal of monies to New York to satisfy the Note’s obligations, together distinguish

this case from others in which this court has held an out-of-state defendant’s contacts to be

insufficient under § 302(a)(1). See Fiedler v. First City Nat’l Bank of Houston, 807 F.2d

315, 318 (2d Cir. 1986) (holding that two telephone calls and mailing from Texas for purpose

of finalizing repayment of guarantees on loan from Texas bank insufficient to create

jurisdiction under New York law); Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 766 (2d

Cir. 1983) (holding that out-of-state defendant’s transmittal into New York of cease-and-

desist letter to New York plaintiff for purported trademark infringement was insufficient to

create jurisdiction over defendant in a New York declaratory judgment action).

       In short, having sought out a particular New York lender, having contacted him in

New York for the express purpose of soliciting a loan, having visited New York prior to

executing the Note, and having made repayments on the Note to New York, Susser can

reasonably be said to have “projected himself into [New York] to engage in a sustained and


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substantial transaction of business.” Fischbarg v. Doucet, 9 N.Y.3d 375, 381, 849 N.Y.S.2d

501, 506 (2007) (internal quotation marks and alterations omitted); see also Deutsche Bank

Sec., Inc. v. Montana Bd. of Inv., 7 N.Y.3d 65, 71, 818 N.Y.S.2d 164, 167 (2006) (“We have

in the past recognized CPLR 302(a)(1) long-arm jurisdiction over commercial actors and

investors using electronic and telephonic means to project themselves into New York to

conduct business transactions . . . .”). Accordingly, the district court properly exercised

jurisdiction over Susser.

2.     Equitable Estoppel

       Susser contends that O’Mahoney should have been equitably estopped from

requesting post-maturity interest on the Note because she never mentioned such interest in

her correspondence to Susser following the Note’s maturity, and because she cashed a check

for $30,000 from Susser that stated in the “memorandum” section “$100,00 - $30,000 =

$70,000,” thereby implicitly acknowledging that he was paying toward principal and not

interest. Susser Aff. Jan. 21, 2011, Ex. B, J.A. 25.8. These allegations fail to establish, let

alone suggest, that O’Mahoney perpetrated “an act of wrongdoing[,] such as fraud or

concealment,” a necessary precondition to applying equitable estoppel under Florida law,

which controls disputes arising under the Note. Florida Dep’t of Health and Rehabilitative

Servs. v. S.A.P., 835 So. 2d 1091, 1097 (Fla. 2002). Nor does Susser point to any evidence

that his reliance on O’Mahoney’s representations prejudiced him. See Major League

Baseball v. Morsani, 790 So. 2d 1071, 1076 (Fla. 2001) (“Equitable estoppel is the effect of


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the voluntary conduct of a party whereby he is absolutely precluded, both at law and in

equity, from asserting rights which perhaps have otherwise existed . . . against another

person, who has in good faith relied upon such conduct and has been led thereby to change

his position for the worse . . . .” (emphasis added) (internal quotation marks omitted)).

Accordingly, Susser’s equitable estoppel argument fails on the merits.

      We have considered Susser’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                  FOR THE COURT:
                                  CATHERINE O’HAGAN WOLFE, Clerk of Court




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