By: Daily Record Staff//January 3, 2011
By: Daily Record Staff//January 3, 2011//
U.S. District Court, Northern District of New York
Reconsideration of Dismissal of Claims
Grasso v. Grasso
Background: Nicholas J. Grasso commenced this diversity action against the Estate of Joseph F. Grasso Sr., Joseph F. Grasso Jr., Olga Grasso, Teresa Grasso and Michelle Grasso; the amended complaint announced four causes of action against each defendant: conversion, fraudulent conveyance, illegal eavesdropping and the imposition of a constructive and/or resultant trust. According to the court, “[t]his action continues a litigation saga between two brothers” that has spanned nearly a decade and follows an action in New York State Supreme Court filed by Joseph F. Grasso Sr. against Nicholas Grasso, and prolonged arbitration. On Oct. 4, the plaintiff filed the instant motion seeking reconsideration of the court’s determination that it lacks personal jurisdiction over Joseph Grasso Jr. in his individual capacity.
The plaintiff urges that the court’s determination in this regard was based on a factual oversight and, if allowed to stand, would result in manifest injustice. The plaintiff cites to evidence in the record showing that, on Feb. 6, 2009, Joseph Grasso Jr., individually, consented to jurisdiction in New York state when he substituted in as a plaintiff and the real party in interest pursuant to an Oct. 25, 2008 assignment and transfer of all of his father’s property and all claims, rights, or causes of action that Joseph Grasso Sr. had against his brother, Nicholas Grasso.
Ruling: The court finds that the plaintiff has pointed to factual evidence in the record that the court overlooked in reaching its original determination that it may not properly exercise jurisdiction over Joseph Grasso Jr.’s person. The court finds that this evidence compels the opposite result, and that failure to amend its earlier decision in light of this evidence would lead to manifest injustice to the plaintiff, namely the wrongful dismissal of his claims against Joseph Grasso Jr., in his individual capacity. Accordingly, because evidence in the record clearly indicates that Joseph Grasso Jr. did consent to jurisdiction in his individual capacity, and because the grounds for such jurisdiction comports with the requirements of due process, the court reverses its prior ruling in this regard.
Brian Breedlove for the plaintiff; Andrew J. Healey of the Office of Frank M. Putorti Jr. for the defendants