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Bensusan Rest. Corp. v. King - 126 F.3d 25 (2d Cir. 1997)

Rule:

N.Y. C.P.L.R. 302(a)(2) provides in pertinent part that a New York court may exercise personal jurisdiction over a non-domiciliary who in person or through an agent commits a tortious act within the state. The language "commits a tortious act within the state," as contained in N.Y. C.P.L.R. 302(a)(2), is plain and precise and confers personal jurisdiction over non-residents when they commit acts within the State of New York.

Facts:

Plaintiff Bensusan Restaurant Corporation ("Bensusan"), located in New York City, filed lawsuit in the United States District Court for the Southern District of New York against defendant Richard B. King, a Missouri resident. Bensusan alleged that it created an enormously successful jazz club in New York City called "The Blue Note," which name was registered as a federal trademark for cabaret services on May 14, 1985. Around 1993, Bensusan wrote to King demanding that he cease and desist from calling his club The Blue Note. King's attorney informed Bensusan that it had no legal right to make the demand. The complaint raised claims of trademark dilution and violations of the Lanham Act. On King's motion, the district court dismissed the complaint for lack of personal jurisdiction. Bensusan appealed.

Issue:

Could the federal district in New York exercise personal jurisdiction over King, a Missouri resident, in the action brought by Bensusan, a New York resident?

Answer:

No.

Conclusion:

The court affirmed the district court's judgment. The court ruled that the dismissal for lack of personal jurisdiction was proper because Bensusan failed to allege that King was physically present in New York when he committed his allegedly tortious act, as required for the exercise of personal jurisdiction under New York's long-arm statute, N.Y. C.P.L.R. 302(a)(3).

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