Judgment, Supreme Court, New York County (Sherman, J.), entered November 17, 1980, dismissing the complaint pursuant to an order of said court entered October 31, 1980 which granted defendant’s motion to dismiss the complaint for lack of personal jurisdiction, affirmed, with costs and disbursements. Appeal from the order of said court entered October 31, 1980, dismissed, without costs, as being subsumed in the judgment.
Defendant, the 790 daughter of Henri Matisse, is a resident of France, who obtains income from sales of her late father’s paintings and pursuant to copyright under the droit moral of French law issues certificates of authenticity for the works. In December, 1973, plaintiff, an international art dealer residing and transacting business primarily in New York City, sold a painting entitled “A Bunch of Yellow Flowers”, purportedly by Matisse, to a Mrs. Englehard of New Jersey.
Until 1978, the art world apparently believed the work to be authentic. In 1978, Mrs. Englehard attempted to donate the piece to the Houston Museum of Fine Arts in Texas. The museum requested an appraisal from the New York Art Dealers Association.
The association advised Mrs. Englehard by letter that “[a] number of the panel members [on a panel of appraisers] were quite certain that [the piece] was not the work of Matisse, but we decided nevertheless to communicate with Madame Marguerite Duthuit, the artist’s daughter, who * * * is making a catalogue raisson of her father’s works and is presently ‘the last word’ on authenticity of works attributed to him.” This letter further disclosed that defendant’s opinion sought via a telephone communication made to her in Paris was to the effect that the work was a “fake”.
Consequently, the museum rejected the donation. Mrs. Englehard sought redress from the plaintiff who, in turn, served a summons and complaint upon the defendant in France based upon the single phone communication.
Special Term, in granting defendant’s motion to dismiss the complaint for lack of jurisdiction over the person of the defendant, observed that the causes of action alleged in the complaint sound primarily in defamation of character and that even assuming they plead causes other than defamation of character, the defendant’s act does not serve as a predicate for long-arm jurisdiction under CPLR 302. We agree.
Succinctly stated, jurisdiction in this action is alleged by a New York resident art dealer against a French citizen relating to a gift of artwork by a New Jersey resident to a Texas museum, wherein defendant, in response to a single overseas phone communication from a New York appraisal association, stated that the artwork was not authentic.
In looking for the reality and the essence of the action and not its mere name, we conclude from a fair reading of the complaint that plaintiff’s claims do indeed sound in defamation of character which cause is exempt from acts by a nondomiciliary which may serve as a basis for long-arm jurisdiction under CPLR 302 (subd [a], pars 2, 3).
Assuming plaintiff pleaded causes of action other than defamation of character, it is clear that the single telephone communication made to defendant in France does not qualify as the transaction by defendant of business within this State (CPLR 302, subd [a], par 1) or the commission by defendant of a tortious act within this State whether in person or through an agent (see Parke-Bernet Galleries v Franklyn, 26 NY2d 13, 17; Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, 460-464).
Similarly, CPLR 302 (subd [a], par 3) does not support maintenance of jurisdiction over the defendant’s person. With respect to the telephone communication it is evident that there had been no contact at all between plaintiff and the defendant and the plaintiff’s name was not mentioned to the defendant during the New York Art Dealers Association’s inquiry to defendant.
Any injury to the plaintiff that the defendant could have foreseen was too remote or inconsequential and certainly was not direct (see Fantis Foods v Standard Importing Co., 49 NY2d 317, 326-327). What is conspicuously absent is any showing of some act by which the defendant purposefully availed herself of the privilege of conducting activities within the State, thus invoking the benefits and protections of its laws (cf. Darienzo v Wise Shoe Stores, 74 AD2d 342; World-Wide Volkswagen Corp. v Woodson, 444 US 286).
Plaintiff’s cross motion for an order pursuant to CPLR 3211 (subd [d]) to permit discovery of the defendant as to essential facts to establish jurisdiction must be denied. It does not appear from the affidavits submitted in 791 opposition to defendant’s motion (made pursuant to CPLR 3211, subd [a], par 8, to dismiss the complaint on the ground that the court does not have jurisdiction of the person of the defendant) that facts essential to justify opposition may exist, but cannot now be stated.
On this record, it appears that plaintiff’s opposition to the motion to dismiss is frivolous (cf. Peterson v Spartan Inds., 33 NY2d 463). Concur — Bims, Ross, Lupiano and Silverman, JJ.
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