Opinion
February 1, 1962
MacIntyre, Burke, Smith Curry for defendant.
Aaron B.Z. Silver for plaintiffs.
The defendant, an educational institution incorporated under the laws of Massachusetts as a nonprofit organization, moves to set aside the service of summons. The action is brought to recover damages for personal injuries sustained by the infant plaintiff on the premises of defendant school where he is pursuing academic studies.
Service of the summons was effected on Hans K. Maeder, the staff director, and a member of the board of trustees of the school at an apartment in New York City. The affidavit of Mr. Maeder recites that he has resided in Stockbridge, Massachusetts since 1949, and that he occupies the apartment while visiting in New York City.
The affidavit of the attorney for the plaintiffs states that the defendant is listed in the Manhattan telephone directory with an office at 139 East 35th Street, which is the address of the apartment at which Mr. Maeder was served. The plaintiff's attorney also claims that the defendant regularly interviews prospective students at this location, and states that the infant plaintiff was solicited for enrollment in the school at this place. It does not appear that the defendant offers or conducts any educational curriculum or program other than at its school in Massachusetts.
The only activity shown to be conducted by the defendant in this State is the holding of interviews with prospective students or their parents. This circumstance is tantamount to no more than the solicitation of business for an out-of-State concern. Such activity has been held insufficient to constitute the doing of business in this State ( Miller v. Surf Props., 4 N.Y.2d 475). In the absence of evidence of the conduct by the defendant of any activity other than disclosed by the plaintiffs, there is no material issue of fact presented on this application which warrants or requires a hearing (cf. Smith v. Aztec Resort Motel. 21 Misc.2d 548). The motion is granted.