Opinion
Filed: September 30, 2005.
McDonough, Korn Eichorn, P.C., Attys. For Defts. Coven, Kim, Faust, Levine, Meyer and Valley Center for Women's Health, Springfield, New Jersey.
Kopff, Nardelli Dopf LLP, Attys. For Defts. Benjamin, Manginello, Pane, The Valley Hosp., New York, New York.
Meagher Meagher, Attys. For Pltfs., Bronxville, New York.
Martin, Clearwater Bell, LLP, Attys. For The New York and Presbyterian Health, New York, New York.
DECISION AND ORDER
The following papers numbered 1 to 11 were read on these two separate motions by defendants to dismiss this action pursuant to CPLR 3211, subd. (a), par. 8 based upon lack of long arm jurisdiction. Papers Numbered
The Court notes that defendants have failed to properly identify the grounds for the relief. See CPLR 2214, subd. (a).
Upon the foregoing papers, it is Ordered and adjudged that these motions are disposed of as follows:
This is an action sounding in negligence and obstetrical malpractice relating to the care and treatment provided plaintiff Theresa Negast and her newborn son, Shane Negast.
In support of the motion to dismiss for lack of personal jurisdiction on behalf of defendants Coven, Kim, Faust, Levine, Meyer and The Valley Center for Women's Health, defendant Coven submits an affidavit wherein he avers that he is a physician and president of The Valley Center for Women's Health, and that defendants Kim, Faust, Levine and Meyer are all partners. According to defendant Coven, neither he nor any of his partners, nor his group, practices medicine in New York, they do not have any offices in New York, they have no affiliations with New York Hospitals, they do not advertise in New York and all of the care and treatment of plaintiffs occurred in New Jersey. Further, defendant Coven states that none of the moving defendants are employees of defendants New York and Presbyterian Healthcare Network, Inc. or defendant Valley Hospital; they merely have admitting privileges at the later. Based upon the foregoing, these defendants seek dismissal of this action claiming lack of long arm jurisdiction.
Similarly, defendants Benjamin, Manginello, Pane and The Valley Hospital are moving to dismiss this action, arguing that long arm jurisdiction does not lie over these defendants. The individual defendants each have submitted supporting affidavits arguing that they do not transact any business in New York, that they do not contract to supply goods or services in New York, that they do not have any New York offices, bank accounts, mailing address or telephone numbers, that they do not vote in New York, that they do not hold New York drivers' licenses, that they do not own or lease any New York property, that they do not reside in New York, that they do not pay New York income tax and that-they are not required to file New York income tax returns. While defendants Benjamin and Manginello only were licensed to practice medicine in New York, both aver that their New York licenses "lapsed several years ago," and each individual defendant avers that s/he does not practice medicine in New York. It also is claimed that by these moving individual defendants that they do not have staff privileges at any New York hospitals.
Also in support of their motion, Linda Malkin, Director of Risk Management for The Valley Hospital, has submitted an affidavit. She avers that defendant Valley Hospital's principal place of business is in New Jersey, that it is not licensed to do business in New York, that Valley Hospital does not own, lease or occupy any New York property, that it has no New York mailing address or telephone number, that it does not and is not obligated to pay New York taxes and that it does not file any New York tax returns. Further, she avers that Valley Hospital does not have any written referral contracts with any New York physicians, hospitals or other health care facilities with respect to the care and treatment rendered these plaintiffs. According to Ms. Malkin, approximately 10 percent of the Valley Hospital's advertising is placed in New York and that same relates exclusively to cancer and cardiac services. She denies that The Valley Hospital places any advertising in New York media for obstetrical care and while the Hospital now advertises its J.D. Powers award in The New York Times, that advertisement, Ms. Malkin claims, did not begin until after the dates of services rendered in this action.
According to these moving defendants, the mere fact that plaintiffs are from New York, that a number of their patients reside in adjoining New York Counties and that defendant Valley Hospital advertises on media in New York and New Jersey is insufficient to confer long arm jurisdiction. Since the allegedly tortious acts were committed in New Jersey and defendants do not conduct business in New York, nor derive "substantial revenue" for services rendered in New York, these defendants contend that plaintiffs are not able to demonstrate that long arm jurisdiction under CPLR 302 applies and they are entitled to dismissal of this action.
Plaintiff vigorously opposes the motion, arguing that moving defendants engaged in "substantial solicitation of business in New York," that defendant Valley Center for Women's Health is located just four miles from plaintiffs' residence, that defendant Valley Hospital is located just 15 miles from plaintiffs' residence and that Valley Hospital is a member of defendant The New York and Presbyterian Healthcare Network, which is a New York corporation. Moreover, plaintiffs argue that defendant The Valley Hospital "regularly, systematically, and consistently solicited business within New York State through the use of direct mailings targeted at New York residents, newspaper advertisements, and other forms of advertisements within New York State." Since defendants Benjamin, Manginello and Pane are all employees of defendant the Valley Hospital, plaintiffs submit that they are subject to long arm jurisdiction "through their vicarious relationship with their employer, defendant subsidiary affiliation with New York Presbyterian Hospital" under CPLR 302, subdivision (a), paragraph 3, subparagraph (ii).
Also, plaintiffs argue that defendants Pane, Benjamin and Manginello are subject to New York long arm jurisdiction under CPLR 302, subdivision (a), paragraph (1) because they each "transact[ed] . . . business within the state . . ." To support this claim, plaintiffs rely upon Valley Hospital's contractual commitment with the New York and Presbyterian Healthcare Network, which provides the Hospital "with many privileges and benefits," including "an affiliation with a very well known and well respected New York City Hospital, as well as the use of resources, patient referrals, and financial profits."
Defendants Coven, Kim, Faust, Levin and Meyer, plaintiffs argue, are also subject to long arm jurisdiction under CPLR 302, subdivision (a), paragraph (1) because "they not only regularly solicit business within New York state, but also because they have contracted to provide services to New York state residents." According to plaintiffs, these defendants have contracted to place advertisements in New York State, including in the New York State telephone directories, they are contractually bound with Oxford Health Plans and Aetna Health, Inc. to provide medical services to patients who are members of these plans, they are featured in New York area provider books and they receive referrals form New York hospitals. Moreover, while defendants Coven, Kim, Faust, Levin and Meyer each claim to only have admitting privileges at defendant Hospital, each is listed as "medical staff" in a Valley Hospital newsletter which was used as a direct mailing to New York State residents. Based upon what plaintiffs describe as all of the defendants' numerous and significant transactions in New York, including their numerous targeted advertisements and contracts to provide services, they "should reasonably expect the potential for litigation in New York state" and thus traditional notions of fair play and substantial justice are given due by exercising long arm jurisdiction over these defendants.
According to plaintiffs, defendants Coven, Kim, Faust, Levin, Meyer and Valley Center for Women's Health are further subject to long arm jurisdiction under CPLR 302, subdivision (a), paragraph 3, subparagraph (ii), because they have "engaged in a persistent course of conduct within New York state, which makes it reasonably foreseeable that they should have to litigate in New York state" and their "persistent ongoing treatment of New York residents as well as their membership with Oxford and Aetna Health plans results in the receipt of substantial revenue."
Plaintiffs urge that the fact that this action's litigation in New York, rather than in New Jersey, may be inconvenient for defendants does not entitle defendants to the dismissal they seek.
Upon this Court's careful reading of the record at bar, the parties' respective arguments and the applicable law, both motions to dismiss pursuant to CPLR 3211, subdivision (a), paragraph 8 based upon lack of long arm jurisdiction is granted. The irrefutable facts are that all of the individually sued physicians reside in New Jersey, are licensed to practice medicine in New Jersey and not New York, have their offices in New Jersey, with no offices in New York, and provided pre-natal and obstetrical services to plaintiff Theresa Negast only in New Jersey, where her son, the infant plaintiff Shane Negast, ultimately was delivered at defendant Valley Hospital in New Jersey. While plaintiffs argue that personal long arm jurisdiction over these defendants nevertheless is proper, relying upon CPLR 302, subdivision (a), paragraphs 1 and 3, subdivisions (i) and (ii), for the reasons which follow, the Court finds that long arm jurisdiction does not lie and thus that moving defendants are entitled to dismissal of this action.
Personal jurisdiction may be exercised over a non-domiciliary only when his "conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there."World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). New York's long arm jurisdiction statute is embodied in CPLR 302.
CPLR 302, subdivision (a), paragraph 1 provides that jurisdiction may be exercised over a non-domiciliary who "transacts any business within the state or contracts anywhere to supply goods or services in the state." In determining whether long arm jurisdiction lies under this statute, the facts of each case must be examined by looking to the totality of the defendant's activities within New York and, while CPLR 302(a)(1) is a "single act statute," see Kruetter v. McFadden Oil Corp., 71 N.Y.2d 460, 467 (1988), there must be a finding that the defendant has engaged in purposeful activity by which he has invoked the benefits and protections of New York law and that there is a substantial relationship between the transaction and the claim asserted. See E1 Cid Ltd. V. New Jersey Zinc Co., 444 F. Supp. 845, 849 (S.D.N.Y. 1977); Black River Associates, v. Newman, 218 A.D.2d 273, 278 (4th Dept. 1996). This statute "requires an articulable nexus, a substantial relationship, between the New York activity, business or transaction and the asserted claim and injury," Chamberlain v. Peak, 155 A.D,2d 768 (3rd Dept. 1989); in other words, the cause of action must arise out of the business transacted in New York. See Muollo v. Crestwood Village, Inc., 155 A.D.2d 420 (2nd Dept. 1989). Fatal to plaintiffs' reliance upon CPLR 302(a)(1) is the fact that plaintiffs' causes of action did not arise out of the various nexi cited by plaintiffs, i.e., out of defendants' advertisement in the New York Times, or out of defendants' listing in a regional provider directory, or out of their alleged direct mailings, or out of any referral relationship, or out of an insurance relationship; any argued relationship simply is too remote. See Muollo v. Crestwood Village, Inc., supra; Carte v. Parkoff, 152 A.D.2d 615 (2nd Dept. 1989); Apicella v. Valley Forge, 103 A.D.2d 151 (2nd Dept. 1984); Carbone v. Fort Erie Jockey Club, Ltd., 47 A.D.2d 337 (4th Dept. 1975). The fact that the professional relationship between these parties may have arisen out of some of the foregoing alleged activities is not tantamount to the necessary finding that the foregoing activities resulted in the asserted causes of action.
As an aside, the Court notes that plaintiffs in any event have not submitted evidence of a contractual relationship wherein mutual obligations were undertaken for the referral to and treatment by any of these out-of-State physician. Plaintiffs' reliance upon McLenithan v. Bennington Community Health Plan, 223 A.D.2d. 277 (3rd Dept. 1996), lv. to app. dsmd. 88 N.Y.2d 1017 (1996) for invoking of long arm jurisdiction is misplaced to the extent that here, Aetna and Oxford, unlike the New York HMO in McLenithan, do not offer insurance exclusively to New York patients.
Turning next to CPLR. 302, subdivision (a), paragraph 3, that statute provides that jurisdiction may be exercised over a non-domiciliary who "commits a tortious act without the state causing injury to person . . . within the state . . . if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from . . . services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate . . . commerce." "By this provision, the Legislature limited CPLR 302 (a) jurisdiction to extend only to those 'who have sufficient contacts with this state so that it is not unfair to require them to answer in this state for injuries they cause here by acts done elsewhere.'
(Citation omitted)." Ingraham v. Carroll, 90 N.Y.2d 592, 597 (1997). Thus, CPLR 302 (a) necessitates some ongoing activity within New York State, which distinguishes it from the one shot single business transaction described in CPLR 302 (a) (1). This section "ensures that the defendant has some direct contact with New York State. Ingraham v. Carroll, supra, 90 N.Y.2d at 599.
Case law has resolved that the situs of the injury is the location of the original event which caused the injury, not the location where the resultant damages are subsequently felt by the plaintiff. See Carte v. Parkoff, 152 A.D.2d 615 (2nd Dept. 1989). "Section 302 (a)(3) CPLR looks to the imparting of the original injury within the State of New York and not resultant damage, in order that jurisdiction might be effectuated." Ditchik v. Baines, 665 F.Supp. 350 (S.D.N.Y. 1987); see, also Rodriguez v. Circus Circus Casinos, Inc., 2001 WL 21244 (S.D.N.Y. 2001); McGowan v. Smith, 52 N.Y.2d 268, 273 (1981); Kramer v. Hotel Los Monteros S. A., 57 A.D.2d 756 (1st Dept. 1977), app. den. 43 N.Y.2d 649 (1978). "The mere residence or domicile in New York of an injured plaintiff does not constitute injury within the State for the purpose of establishing jurisdiction under this statute where the injury actually occurred elsewhere." Bramwell v. Tucker, 107 A.D.2d 731, 732-733 (2nd Dept. 1985).
At bar, there indisputably was no imparting of any injury in New York; the place of injury was New Jersey where the critical events took place, and therefore jurisdiction under CPLR 302, subdivision (a) paragraph 3 also has not been established.
Accordingly, plaintiffs have not demonstrated that long arm jurisdiction applies and moving defendants are entitled to dismissal of this action. This action is hereby severed and Ordered continued as against the sole remaining defendant, The New York and Presbyterian Healthcare Network, which has defaulted in responding to these motions. Plaintiffs and defendant The New York and Presbyterian Hospital shall appear for a conference at 9:30 a.m. on October 17, 2005. This date may not be adjourned without the Court's consent. Any party's failure to appear may result in the imposition of costs and/or sanctions.
The Court notes that defendant The New York and Presbyterian Healthcare Network improperly was not served with defendants Coven, Kim, Faust, Levine, Meyer and The Valley Center for Women's Health's Notice of Motion. See CPLR 2103, subd. (e). However, the other moving defendants' Notice of Motion, as well as plaintiffs' opposition papers, were served upon defendant The New York and Presbyterian Healthcare Network. By defendant The New York and Presbyterian Healthcare Network's counsel's executed stipulation adjourning the return date of these motions, said defendant was adequately noticed on these motions and afforded the opportunity to serve answering papers, which it declined to do.