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Sedig v. Okemo Mountain

Appellate Division of the Supreme Court of New York, Second Department
May 31, 1994
204 A.D.2d 709 (N.Y. App. Div. 1994)

Summary

affirming lower court's dismissal for lack of personal jurisdiction in an action where a defendant solicited in New York, but the plaintiff was injured at a ski resort located in Vermont

Summary of this case from Cicalo v. Harrah's Operating Company, Inc.

Opinion

May 31, 1994

Appeal from the Supreme Court, Nassau County (Lockman, J.).


Ordered that the order is affirmed, with costs.

The plaintiff was injured on February 24, 1989, while skiing at the defendant's resort in Vermont. The defendant, a Vermont corporation, solicits business in New York and sends its employees into New York State to attend ski shows. In addition, there is proof that it sells ski lift tickets to attendants at Grumman Ski Club meetings in New York at least once a year and offers complimentary lift tickets to New York ski shop employees. However, there is no proof that the defendant is licensed or authorized to do business in this State. Nor is there proof that the defendant maintains an office, has bank accounts, or owns any property within the State.

Jurisdiction under CPLR 301 may be acquired over a foreign corporation only if that corporation does business here "'not occasionally or casually, but with a fair measure of permanence and continuity'" so as to warrant a finding of its "'presence'" in this jurisdiction (Apicella v. Valley Forge Military Academy Jr. Coll., 103 A.D.2d 151, 154, quoting Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267). It is well established that solicitation of business alone will not subject a foreign corporation to the jurisdiction of New York courts (see, Miller v. Surf Props., 4 N.Y.2d 475). This "solicitation-plus" standard requires that there be activities of substance in addition to solicitation to support a finding of presence within the State (see, Pellegrino v Stratton Corp., 679 F. Supp. 1164; Chamberlain v. Jiminy Peak, 176 A.D.2d 1109), and the plaintiff has not carried his burden of demonstrating such presence here (see, Peterson v. Spartan Indus., 33 N.Y.2d 463; Cato Show Print. Co. v. Lee, 84 A.D.2d 947). There is no merit to the plaintiff's claim that an agency relationship exists between the defendant and the New York ski shops which display its posters and brochures and receive complimentary ski passes, because there is no evidence that the shops have authority to contractually bind the defendant and thus serve as its agents for jurisdictional purposes (see, Pellegrino v. Stratton Corp., US Dist Ct, ND NY, Feb. 9, 1989, McCurn, J., 1989 WL 10726).

In addition, the plaintiff's tort claim, originating from a ski slope injury in Vermont, is too remote from the defendant's alleged sales and promotional activities to support long-arm jurisdiction under CPLR 302 (a) (1) (see, McGowan v. Smith, 52 N.Y.2d 268; Chamberlain v. Jiminy Peak, 155 A.D.2d 768). Balletta, J.P., Copertino, Friedmann and Goldstein, JJ., concur.


Summaries of

Sedig v. Okemo Mountain

Appellate Division of the Supreme Court of New York, Second Department
May 31, 1994
204 A.D.2d 709 (N.Y. App. Div. 1994)

affirming lower court's dismissal for lack of personal jurisdiction in an action where a defendant solicited in New York, but the plaintiff was injured at a ski resort located in Vermont

Summary of this case from Cicalo v. Harrah's Operating Company, Inc.

explaining how jurisdiction may be acquired over a foreign company under § 301

Summary of this case from Ikeda v. J. Sisters 57, Inc.
Case details for

Sedig v. Okemo Mountain

Case Details

Full title:ROBERT SEDIG, Appellant, v. OKEMO MOUNTAIN, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 31, 1994

Citations

204 A.D.2d 709 (N.Y. App. Div. 1994)
612 N.Y.S.2d 643

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