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finding no jurisdiction under section 302 based on website that "was informational only and, thus, 'passive' in nature" because this does not show that the defendant purposefully directed its activity in a substantial way into the forum state
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2013-10-16
Frank PATERNO, appellant, v. LASER SPINE INSTITUTE, et al., respondents.
Timothy G. Griffin, Bronxville, N.Y., for appellant. Garson DeCorato & Cohen, LLP, New York, N.Y. (Joshua R. Cohen, Amanda L. Tate, and Roslyn R. Ross of counsel), for respondents.
Timothy G. Griffin, Bronxville, N.Y., for appellant. Garson DeCorato & Cohen, LLP, New York, N.Y. (Joshua R. Cohen, Amanda L. Tate, and Roslyn R. Ross of counsel), for respondents.
MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, L. PRISCILLA HALL, and SANDRA L. SGROI, JJ.
SGROI, J.
On this appeal we address the evolving issue of personal jurisdiction in the “Internet age.” The plaintiff, who is a resident of the State of New York, traveled out of State to undergo surgical treatment at the Florida-based Laser Spine Institute (hereinafter LSI), after first learning about the facility through an advertisement on the home page of the Internet service provider America Online (hereinafter AOL). The primary issue raised on appeal is whether LSI and several physicians who treated the plaintiff at the LSI facility in Florida are subject to long-arm jurisdiction in the medical malpractice action commenced against them by the plaintiff in New York. For the reasons that follow, we conclude that the defendants are not subject to such jurisdiction and, thus, the Supreme Court properly dismissed the complaint pursuant to CPLR 3211(a)(8).
As indicated, the plaintiff, Frank Paterno, is a resident of the State of New York. The plaintiff alleged that, in May 2008, while viewing the AOL home page, he noticed an advertisement posted by LSI. Clicking on this advertisement, the plaintiff viewed a five-minute video presentation in which a professional golfer, who was a former patient of LSI, touted the company's medical and surgical services. The plaintiff, who suffered from back pain, thereafter contacted LSI “by telephone and internet,” and took the affirmative step of sending his MRI films to the LSI facility in Florida. The plaintiff communicated with LSI through Andrew Vaught, who identified himself as “a patient advocate at LSI.”
On May 30, 2008, the plaintiff received from Vaught private insurance forms and a letter setting forth, inter alia, surgical recommendations for his condition. On that same date, the plaintiff was contacted by Vaught, who advised that if he were willing to travel to Tampa, Florida, on short notice, LSI could perform the recommended surgery on June 9, 2008, “at a significant discount.” On June 2, 2008, the plaintiff completed the insurance forms which he had received from LSI, and he again contacted Vaught to discuss payment arrangements. On June 3, 2008, the plaintiff received an email message from LSI, which contained a lengthy registration form. On this same date, the plaintiff spoke by telephone to two LSI representatives, one of whom responded to certain questions which the plaintiff had raised, and the other of whom informed him that LSI “needed [the plaintiff's]'blood work' sent [to it].” On June 4, 2008, the plaintiff allegedly was advised by his New York physician that a physician at LSI had contacted the New York physician, and that the two physicians “briefly discussed [the] upcoming surgery [to be performed at LSI].” At the same time, the plaintiff had blood work completed at his family physician's office in White Plains, New York, and these results were thereafter forwarded to LSI. On June 9, 2008, and June 11, 2008, the plaintiff underwent surgical procedures at the LSI facility in Tampa, Florida. The plaintiff returned home to New York on June 12, 2008. He subsequently contacted LSI, advising its physicians that he was suffering “constant pain” and seeking medication to alleviate this condition. In response, the LSI physicians provided prescriptions, which the plaintiff filled at local pharmacies in New York.
The plaintiff further alleged that, on July 14, 2008, at his request, a telephone conversation was held between a representative of LSI and a New York physician whom the plaintiff had consulted; that “following [this call] LSI agreed to fly me back to Tampa, free of charge, for revision surgery”; and that, “in the period from July 2008 through August 3, 2008, I had numerous telephone calls and email exchanges with [the head] of Patient Advocacy/Relations at LSI.” Notably, although the plaintiff submitted copies of various email messages transmitted between him and LSI, the record herein does not contain transcriptions of any email messages from the period between July 2008, and August 3, 2008. The plaintiff underwent his third surgical procedure at the LSI facility in Florida on August 6, 2008. He returned to New York on August 9, 2008.
The plaintiff claimed that he was still in pain after the third surgery, and that, from “August 9, 2008 to October 31, 2008, [he] communicated almost daily with [the head of Patient Advocacy/Relations at LSI] via text messages, phone calls and emails.” The record contains copies of numerous email messages transmitted between the parties during this period; most of these were initiated by the plaintiff. On August 26, 2008, in response to the plaintiff's telephone call to him, the defendant Craig Wolff “ordered an MRI to be performed at [a facility] in Tarrytown, New York.” According to the plaintiff, this MRI scan showed a collection of fluid surrounding the surgical area. The plaintiff then consulted with New York physicians and, after a telephone call between Wolff and one of the New York physicians, LSI offered “to fly [the plaintiff] to Tampa, at LSI's expense, to address the problem.”
The plaintiff did not return to the LSI facility, but did contact LSI's president on September 7, 2008, to “explain his predicament.” Between September 11, 2008, and December 2008, the plaintiff contacted LSI numerous times to discuss his case, to “get further information,” and to obtain his medical records, reports, and MRI films from LSI. Ultimately, on April 3, 2009, after further consultations with New York physicians, the plaintiff underwent additional surgery in New York by physicians, who were not affiliated with LSI, “to correct [his] condition.”
In September 2010, the plaintiff commenced this action against LSI and various doctors who were involved in the plaintiff's treatment at LSI, to recover damages for medical malpractice, negligent hiring and supervision, and lack of informed consent. In October 2010, the defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(8) on the ground of lack of personal jurisdiction. The defendants argued, inter alia, that they were not subject to personal jurisdiction in New York under any subsection of CPLR 302(a), New York's long-arm jurisdiction statute, since they neither transacted business in this State ( seeCPLR 302[a][1] ), nor “commit[ed] a tortious act without the state causing injury to person[s] within the state” (CPLR 302[a][3] ). In particular, the defendants noted that LSI was a Florida corporation; that the defendant physicians were all domiciliaries of Florida; that LSI was not licensed to do business in New York; and that none of the defendants maintained offices in New York, or had a telephone line or other point of contact in New York. Thus, the defendants argued that they neither maintained the requisite minimum contacts with New York, nor purposefully availed themselves of the benefits of conducting business in New York. Accordingly, the defendants contended that, under the totality of the circumstances, they were not subject to personal jurisdiction in New York.
In opposition, the plaintiff argued that the defendants had engaged in a course of activity sufficient to satisfy the jurisdictional requirements of CPLR 302(a)(1). More specifically, the plaintiff contended that the defendants' transaction of business in New York was evidenced by LSI's solicitation of his business through its advertisement on AOL; the “communication stream” between him and the defendants both before and after the surgical procedures; the defendants' consultation with the plaintiff's New York-based physicians; the defendants' direction that the plaintiff have blood work performed in New York; and the filling of the defendants' prescriptions for the plaintiff at New York pharmacies. The plaintiff asserted that the totality of the circumstances satisfied the “substantial relationship” test between the defendants' acts in New York and the transaction upon which his claim of injury was based. In addition, the plaintiff argued that the defendants were subject to personal jurisdiction pursuant to CPLR 302(a)(3) because they had committed tortious acts outside of New York State that caused injury to him within New York.
The Supreme Court granted the defendants' motion, concluding that they did not transact business in New York State ( seeCPLR 302[a][1] ), and that “CPLR 302(a)(3) is also inapplicable as the alleged tortious activity did not cause injury within the state within the meaning of the statute.”
We begin with the principle that, where a motion is made to dismiss a complaint for lack of personal jurisdiction, it is the plaintiff who bears the “ ‘ultimate burden of proof’ ” to prove a basis for such jurisdiction (Daniel B. Katz & Assoc. Corp. v. Midland Rushmore, LLC, 90 A.D.3d 977, 978, 937 N.Y.S.2d 236, quoting Cornely v. Dynamic HVAC Supply, LLC, 44 A.D.3d 986, 986, 845 N.Y.S.2d 797;see Fischbarg v. Doucet, 9 N.Y.3d 375, 849 N.Y.S.2d 501, 880 N.E.2d 22). Although, as noted by the dissent, such a motion can be successfully opposed by a “prima facie showing that the defendant[s] w [ere] subject to the personal jurisdiction [of the court]” (Daniel B. Katz & Assoc. Corp. v. Midland Rushmore, LLC, 90 A.D.3d at 978, 937 N.Y.S.2d 236 [internal quotation marks omitted] ), we disagree with the conclusion that the plaintiff has made such a showing.
CPLR 302(a)(1) provides as follows:
“(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:
“1. transacts any business within the state or contracts anywhere to supply goods or services in the state.”
In determining the meaning of the phrase “transacts any business,” the courts have stated that an entity transacts business when it “purposefully” avail[s] itself of the benefits and privileges of conducting business in New York. It is not necessary that the entity be physically present in the State to conclude that it has “purposefully availed” itself, and a single transaction can satisfy the statute where that transaction is “ ‘purposeful and there is a substantial relationship between the transaction and the claim asserted’ ” ( Kimco Exch. Place Corp. v. Thomas Benz, Inc., 34 A.D.3d 433, 434, 824 N.Y.S.2d 353, quoting Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d 65, 71, 818 N.Y.S.2d 164, 850 N.E.2d 1140,cert. denied549 U.S. 1095, 127 S.Ct. 832, 166 L.Ed.2d 665 [some internal quotation marks omitted]; see Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 467, 527 N.Y.S.2d 195, 522 N.E.2d 40;Daniel B. Katz & Assoc. Corp. v. Midland Rushmore, LLC, 90 A.D.3d at 979, 937 N.Y.S.2d 236;Grimaldi v. Guinn, 72 A.D.3d 37, 44, 895 N.Y.S.2d 156).
However, it is not the number of contacts which is determinative of whether a defendant purposely availed itself of the benefits and privileges of conducting business in New York. Each jurisdictional inquiry pursuant to CPLR 302(a)(1) will turn upon the examination of the particular facts of the case, “[a]nd although determining what facts constitute ‘purposeful availment’ is an objective inquiry, it always requires a court to closely examine the defendant's contacts for their quality ” ( Licci v. Lebanese Can. Bank, SAL, 20 N.Y.3d 327, 338, 960 N.Y.S.2d 695, 984 N.E.2d 893 [emphasis added]; see Fischbarg v. Doucet, 9 N.Y.3d at 380, 849 N.Y.S.2d 501, 880 N.E.2d 22). “Purposeful activities are those with which a defendant, through volitional acts avails itself of the privilege of conducting activities with the forum State, thus invoking the benefits and protections of its laws” (Daniel B. Katz & Assoc. Corp. v. Midland Rushmore, LLC, 90 A.D.3d at 979, 937 N.Y.S.2d 236 [internal quotation marks omitted]; see Fischbarg v. Doucet, 9 N.Y.3d at 380, 849 N.Y.S.2d 501, 880 N.E.2d 22;McKee Elec. Co. v. Rauland–Borg Corp., 20 N.Y.2d 377, 382, 283 N.Y.S.2d 34, 229 N.E.2d 604). “Whether a non-domiciliary has engaged in sufficient purposeful activity to confer jurisdiction in New York requires an examination of the totality of the circumstances” ( Farkas v. Farkas, 36 A.D.3d 852, 853, 830 N.Y.S.2d 220).
In the case at bar, the “totality of circumstances” does not provide the plaintiff with a basis for imposing long-arm jurisdiction over the defendants. Initially, we note that personal jurisdiction cannot be based upon LSI's website, since, as far as the record reveals, this website was informational only and, thus, “passive” in nature. There is no indication that the website permitted a user thereof to purchase any goods or services from LSI, that it contained any online form application process, or that it allowed any interaction through the site ( see Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 [W.D.Pa.] ). “When a website is passive ... plaintiffs may have to prove ‘something more’ to justify the exercise of personal jurisdiction—that is, plaintiffs must show that defendant ‘purposefully (albeit electronically) directed his activity in an substantial way to the forum state’ ” (Morilla v. Laser Spine Inst., LLC, 2010 WL 3258312, *4, 2010 U.S. Dist. LEXIS 83608, *11 [D.N.J.], quoting S. Morantz, Inc. v. Hang & Shine Ultrasonics, Inc., 79 F.Supp.2d 537, 540 [E.D.Pa.][some internal quotation marks omitted] ).
This Court has also recently held that such a passive website, without more, cannot be used as the basis for the assertion of long-arm personal jurisdiction. In Grimaldi v. Guinn, this Court stated:
“If the foreign company maintains an informational Web site accessible to the general public but which cannot be used for purchasing services or goods, then most courts would find it unreasonable to assert personal jurisdiction over that company ( see generally American Homecare Fedn., Inc. v. Paragon Scientific Corp., 27 F.Supp.2d 109)” ( Grimaldi v. Guinn, 72 A.D.3d 37, 48, 895 N.Y.S.2d 156).
While the Grimaldi decision also concluded that “passive Web sites, when combined with other business activity, may provide a reasonable basis for the assertion of personal jurisdiction” ( id. at 49, 895 N.Y.S.2d 156 [citations omitted] ), the “other business activity” must be more substantial and more connected to the claim asserted than what has been proffered herein by the plaintiff.
Contrary to our dissenting colleagues' conclusion, LSI's email messages to the plaintiff in New York and telephone conversations with the plaintiff while he was in New York do not constitute “business” activity and are not sufficiently “purposeful” for jurisdictional purposes ( Kimco Exch. Place Corp. v. Thomas Benz, Inc., 34 A.D.3d at 434, 824 N.Y.S.2d 353).
Although the case at bar involves a number of telephone calls and email messages, nevertheless, it cannot be concluded that LSI “projected [itself] into New York in such a manner [as to] purposefully avail [itself] of the benefits and protections of [New York] law” ( Milliken v. Holst, 205 A.D.2d 508, 509, 612 N.Y.S.2d 660, quoting United States Theatre Corp. v. Gunwyn/Lansburgh Ltd. Partnership, 825 F.Supp. 594, 595 [S.D.N.Y.] [some internal quotation marks omitted] [there was no jurisdiction pursuant to CPLR 302(a)(1) because the parties' many communications were not intended to do business in New York; rather, the communications focused on doing business outside of New York]; see Skrodzki v. Marcello, 810 F.Supp.2d 501 [E.D.N.Y.] [in a case involving a dispute over a contract which had been initiated over the internet, the New York long-arm jurisdiction statute did not support the exercise of personal jurisdiction over the foreign defendant even though the parties had regular contact during the subject transaction] ).
Additionally, the “many communications” between the parties, which mostly emanated from the plaintiff, were all related to the surgeries which occurred in Florida ( see e.g. Liberatore v. Calvino, 293 A.D.2d 217, 220, 742 N.Y.S.2d 291 [noting that telephone calls and “written communications ... generally are held not to provide a sufficient basis for personal jurisdiction under the long-arm statute” unless they are “shown to have been used by the defendant to actively participate in business transactions in New York” (internal quotation marks omitted) ]; see also Milliken v. Holst, 205 A.D.2d at 509–510, 612 N.Y.S.2d 660;J.E.T. Adv. Assoc. v. Lawn King, 84 A.D.2d 744, 745, 443 N.Y.S.2d 745).
A contrary conclusion is not warranted simply because the plaintiff completed, in New York, the paperwork which the defendants had sent to him prior to his initial trip to Florida. In fact, such a basis for imposing long-arm jurisdiction was specifically rejected by this Court in Kimco Exch. Place Corp. v. Thomas Benz, Inc., 34 A.D.3d 433, 824 N.Y.S.2d 353. In Kimco, the parties exchanged two executed exclusive marketing agreements by facsimile transmission, pursuant to which the plaintiff was to market nationally several of the defendants' properties that were not situated in New York. While the plaintiff was conducting its marketing campaign, the defendants made follow-up telephone calls. This Court concluded that the “defendants' acts of faxing the executed contracts to New York and of making a few telephone calls do not qualify as purposeful acts constituting the transacting of business ... but rather were merely attempts to contact the plaintiff” ( id. at 434, 824 N.Y.S.2d 353 [citations omitted] ).
Furthermore, neither the fact that the plaintiff underwent certain testing in New York (i.e., blood work and MRIs) in connection with his Florida treatment, nor the fact that the individual defendants telephoned prescriptions to the plaintiff's New York pharmacy, nor even that the defendants had conversations with the plaintiff's local physician, requires the conclusion that the defendants transacted business in this State. In O'Brien v. Hackensack Univ. Med. Ctr., 305 A.D.2d 199, 760 N.Y.S.2d 425, the Appellate Division, First Department, determined that a New Jersey hospital was not subject to long-arm jurisdiction in New York in a malpractice action even though the hospital solicited New York patients and the plaintiff in that action underwent some treatment in New York. In part, the Court stated:
“This is a medical malpractice action in which the parties dispute whether New York's long-arm statute (CPLR 302) confers jurisdiction over a New Jersey medical center [where plaintiff's decedent was treated] ... Defendant's principal place of business is in New Jersey, and it is not licensed to do business in New York, maintains no office or other place of business in New York, [and no New York phone number or bank accounts or real estate]. The purported New York contacts are that defendant solicits patients that reside in New York [including the decedent and] has an affiliation with New York's Einstein Hospital in which regard referrals are made to New York doctors for laboratory work and examinations. [The plaintiff also] contends that decedent was prescribed chemotherapy by one of defendant's physicians, which was administered at Einstein in New York, and that treatment continued by phone calls, mail and fax between [decedent's New York and New Jersey] physicians.
...
“[M]ere solicitation of business within the state does not constitute the transaction of business within the state, unless the solicitation is accompanied by business transactions occurring in the state, or the solicitation in New York is supplemented by a fair measure of the defendant's permanence and continuity in New York which establishes a New York presence ... The purported solicitation in the present case, even accompanied by what really amounts to treatment of New York residents in New Jersey, does not provide a stronger case for finding that defendant transacted business in New York” ( O'Brien v. Hackensack Univ. Med. Ctr., 305 A.D.2d at 199–200, 201, 760 N.Y.S.2d 425 [citations omitted; emphasis added] ).
Similar conclusions have been reached in other medical malpractice cases ( see Etra v. Matta, 61 N.Y.2d 455, 456, 474 N.Y.S.2d 687, 463 N.E.2d 3 [New York resident was first treated by Massachusetts doctor and thereafter by a New York doctor; however, the Massachusetts physician continued to act as a consultant and communicated by phone and letter. The Court held that such circumstances were “too insubstantial” to confer New York jurisdiction over the nondomiciliary doctor]; Hermann v. Sharon Hosp., 135 A.D.2d 682, 683, 522 N.Y.S.2d 581 [no basis for long-arm jurisdiction over Connecticut hospital which maintained no office in New York, even though a “sizeable portion of its patients reside in New York”] ). The fact that the decisions in Etra and Hermann predate the advent of the internet does not alter the still-valid premise that the mere solicitation of business in this State does not amount to the transaction of business herein.
As indicated, the other category of CPLR 302 which is relied upon by the plaintiff to confer personal jurisdiction over the defendants is CPLR 302(a)(3), which applies where a nondomiciliary, inter alia, “commits a tortious act without the state causing injury to person or property within the state.” However, 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 McGowan v. Smith, 52 N.Y.2d 268, 273–274, 437 N.Y.S.2d 643, 419 N.E.2d 321)’ ” ( Vaichunas v. Tonyes, 61 A.D.3d 850, 851, 877 N.Y.S.2d 204, quoting Hermann v. Sharon Hosp., 135 A.D.2d at 683, 522 N.Y.S.2d 581 [emphasis added]; see Lang v. Wycoff Hgts. Med. Ctr., 55 A.D.3d 793, 866 N.Y.S.2d 313;see also Carte v. Parkoff, 152 A.D.2d 615, 616, 543 N.Y.S.2d 718;Uzan v. Telsim Mobil Telekomunikasyon Hizmetleri A.S., 51 A.D.3d 476, 478, 856 N.Y.S.2d 625;Marie v. Altshuler, 30 A.D.3d 271, 272–273, 817 N.Y.S.2d 261;Polansky v. Gelrod, 20 A.D.3d 663, 665, 798 N.Y.S.2d 762;Siegel, N.Y. Prac., § 88 at 164 [4th ed.] [“With respect to both subparagraphs (i) and (ii), it has been held that the original injury must occur in New York. If the injury occurs outside New York and just becomes manifest in New York, or has its greatest consequences in New York ... the statute is not satisfied”] ).
Accordingly, since the situs of the initial alleged injury in this case is Florida, where the surgical procedures took place, New York cannot exercise personal jurisdiction over the defendants pursuant to CPLR 302(a)(3), regardless of the fact that the plaintiff suffered pain after his return to New York.
Furthermore, since the injury did not occur in New York, it is not necessary to consider the additional criteria of CPLR 302(a)(3)(i) and (ii), i.e., whether the defendants regularly do or solicit business, or engage in any other persistent course of conduct, or derive substantial revenue from goods used or consumed or services rendered, in the state. In any event, the plaintiff failed to make a prima facie showing that the defendants met the other criteria of CPLR 302(a)(3). Specifically, the record does not show that the defendants regularly do or solicit business in New York, and it is devoid of any other evidence demonstrating either a “ ‘persistent course of conduct, or [that the defendants] derive[d] substantial revenue from goods used or consumed or services rendered, in the state ’ ” ( Ingraham v. Carroll, 90 N.Y.2d 592, 596, 665 N.Y.S.2d 10, 687 N.E.2d 1293, quoting CPLR302[a][3] [emphasis added]; see also LaMarca v. Pak–Mor Mfg. Co., 95 N.Y.2d 210, 713 N.Y.S.2d 304, 735 N.E.2d 883).
We also disagree with our dissenting colleagues' conclusion that recent actions commenced in federal courts, involving the same corporate defendant, compel the conclusion that New York can properly exercise personal jurisdiction in the case at bar. The dissent cites Henderson v. Laser Spine Inst. LLC, 815 F.Supp.2d 353 [D.Me.], wherein the United States District Court for the District of Maine held that, under Maine law, the State of Maine could properly exercise personal jurisdiction based upon a totality of circumstances, which included “(1) the traditional contacts of phone, email, and faxed solicitations to [the plaintiff]; (2) the nationwide advertising placed in traditional magazines and farflung in-flight catalogues; and (3) the semi-interactive website claiming to have helped ‘tens of thousands of people—from all 50 states' ” ( id. at 377). However, the record in the case at bar does not contain any evidence that LSI “solicited” the plaintiff's business, other than the internet advertisement by which the plaintiff became aware of its services. Moreover, the plaintiff does not even allege that LSI had a presence in this State through any of the “traditional contacts” which were referenced in the Henderson case.
The dissent also cites Bond v. Laser Spine Inst., LLC, 2010 WL 3212480, 2010 U.S. Dist. LEXIS 82736 [E.D.Pa.], wherein the court concluded that, under Pennsylvania law, the defendant was subject to personal jurisdiction in Pennsylvania. However, the contacts between the plaintiff there and LSI were more extensive than those in the instant action. In particular, in the Bond case, LSI took an active role in the plaintiff's postsurgical treatment while he remained in Pennsylvania, including advising an emergency room technician at the Bryn Mawr Hospital in Pennsylvania, where the plaintiff sought treatment, regarding what medication to prescribe. Additionally, as noted in the Bond decision, “the LSI doctor who advised the Bryn Mawr Hospital emergency room technician, Dr. Vernon Morris, is advertised on the LSI website as ‘a senior member of the LSI surgical team’ and ‘lead[er of] the Pennsylvania LSI surgical team’ ” ( id., 2010 WL 3212480, *9, 2010 U.S. Dist. LEXIS 82736, *27). There is no such connection between LSI and New York alleged in this case.
It is also significant that the Henderson and Bond cases were decided in the context of long-arm jurisdiction statutes which permit personal jurisdiction to extend to the full extent allowed by the federal Constitution. In a case arising under diversity jurisdiction, the federal court's jurisdiction “is the functional equivalent of a state court sitting in the forum state” ( Northern Laminate Sales, Inc. v. Davis, 403 F.3d 14, 24 [1st Cir.] [internal quotation marks omitted] ). Both Maine and Pennsylvania have jurisdictional statutes which are coextensive with the limits of the due process clause of the Fourteenth Amendment of the United States Constitution ( see Henderson v. Laser Spine Inst. LLC., 815 F.Supp.2d at 367 [“ ‘To insure maximum protection to citizens of this State,’ Maine's long-arm statute, extends ‘to the fullest extent permitted by the due process clause of the United States Constitution’ 14 M.R.S. § 7040A(1)”]; Bond v. Laser Spine Inst., LLC., 2010 WL 3212480, *5, 2010 U.S. Dist. LEXIS 82736, *13 [“under Pennsylvania law, a court may base jurisdiction on the most minimum contact with Pennsylvania allowed under the Fourteenth Amendment's Due Process Clause (42 Pa. Cons. Stat. Ann. § 5322[b] )” (emphasis added) ] ). In contrast, New York does not confer jurisdiction over every case in which it would be allowed to exercise jurisdiction pursuant to the due process clause of the United States Constitution. As stated by the Court of Appeals in the case of Ehrenfeld v. Bin Mahfouz, 9 N.Y.3d 501, 512, 851 N.Y.S.2d 381, 881 N.E.2d 830:
“[W]e have repeatedly recognized that New York's long arm statute ‘does not confer jurisdiction in every case where it is constitutionally permissible’ ( Kreutter [v. McFadden Oil Corp.], 71 N.Y.2d at 471, 527 N.Y.S.2d 195, 522 N.E.2d 40;accord Talbot v. Johnson Newspaper Corp., 71 N.Y.2d 827, 828, 527 N.Y.S.2d 729, 522 N.E.2d 1027 [1988] ). ‘Thus, a situation can occur in which the necessary contacts to satisfy due process are present, but in personam jurisdiction will not be obtained in this State because the statute does not authorize it’ ( Banco Ambrosiano v. Artoc Bank & Trust, 62 N.Y.2d 65, 71, 476 N.Y.S.2d 64, 464 N.E.2d 432 [1984] ).”
Had the above cases been analyzed under this State's more restrictive methodology for determining the exercise of personal jurisdiction, the results may have been different.
The case at bar is more analogous to another federal case, Morilla v. Laser Spine Inst., LLC, 2010 WL 3258312, 2010 U.S. Dist. LEXIS 83608 [D.N.J.], a diversity jurisdiction lawsuit commenced by residents of New Jersey. Even though the District Court in the Morilla case acknowledged that New Jersey courts consider federal constitutional law in determining the limits of personal jurisdiction, it nevertheless concluded that personal jurisdiction could not be exercised over the defendants. In both the Morilla case and the one at bar, all of the pertinent events took place in Florida, and the website was shown to be only passive in nature. In addition, unlike the allegations made in the Henderson case, the Morilla court noted that “[although] plaintiffs claim generally that defendants advertised their services through ‘media and internet[ ],’ (Compl. 8.), [p]laintiffs do not elaborate, such as by asserting that defendants placed an advertisement in plaintiff's local New Jersey newspaper” ( Morilla v. Laser Spine Inst., LLC, 2010 WL 3258312, *5, 2010 U.S. Dist. LEXIS 83608, *13–14). As noted above, the plaintiff in the case at bar does not allege traditional media solicitation by LSI in this State.
For the foregoing reasons, there is no basis for the imposition of New York long-arm jurisdiction over the defendants and, thus, the Supreme Court properly granted that branch of the defendants' motion which was to dismiss the complaint for lack of personal jurisdiction ( seeCPLR 3211[a][8] ) based on CPLR 302. Thus, the order is affirmed insofar as appealed from. DILLON, J.P., ANGIOLILLO, J., concur.
DICKERSON, J., dissents, and votes to reverse the order insofar as appealed from and deny that branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint based on lack of personal jurisdiction under CPLR 302, with the following memorandum, in which HALL, J., concurs:
The principal questions presented on this appeal are whether the defendants' contacts with New York established that the defendants purposefully availed themselves of the benefits of New York as the forum state, and whether it would offend notions of fair play and substantial justice for the courts of New York to assert long-arm jurisdiction over the defendants. The majority concludes that the evidence was insufficient to demonstrate that the defendants' contacts with New York were sufficient to confer jurisdiction over them. I disagree, and, accordingly, I respectfully dissent.
According to the plaintiff, he first learned of the existence of the defendant Laser Spine Institute (hereinafter LSI) in May 2008. The plaintiff saw an advertisement for LSI on the website maintained by America Online (hereinafter AOL). Upon clicking on the advertisement, he viewed a five-minute video presentation in which a golf professional provided a testimonial concerning the two surgeries which had been performed on him by LSI over the course of three days, and highlighting the fact that he returned to compete on the Professional Golfers' Association tour 10 days later.
Motivated by the advertisement, the plaintiff contacted LSI “by telephone and internet” to gather information concerning the procedures performed by LSI, and for an evaluation of his personal medical condition. On May 29, 2008, the plaintiff requested one of his New York physicians, Dr. Vitto Dimatteo, to review the LSI website and offer his opinion about LSI. The plaintiff also requested that Dimatteo speak on the telephone with a physician at LSI to discuss the procedures proposed by LSI for the plaintiff's treatment.
Also on May 29, 2008, the plaintiff spoke on the telephone with Andrew Vaught, who identified himself as a “patient advocate” at LSI. Vaught acknowledged that he received the MRI films that the plaintiff sent to him.
On May 30, 2008, the plaintiff received two email messages from Vaught, with attachments. The attachments consisted of insurance forms and a letter setting forth the findings of an LSI physician following review of the plaintiff's MRI films. The physician's review set forth the abnormalities found by the physician, as well as the surgical procedures recommended. Later that day, Vaught contacted the plaintiff via email and informed him that LSI had a cancellation, and that if the plaintiff was willing to travel to Tampa, Florida, on short notice, the plaintiff could undergo the proposed surgery on June 9, 2008, “at a significant discount.”
On June 2, 2008, the defendant completed the insurance form furnished by Vaught. The plaintiff also attempted to arrange payment for his surgical procedure. Vaught responded, via email, that the plaintiff could make the necessary arrangements concerning payment upon his arrival at LSI's facility. Vaught also provided the plaintiff with a list of hotels in Tampa that extended a discount to LSI patients.
On June 3, 2008, the plaintiff received, via email, a registration form from Victoria Soroko, LSI's Scheduling Assistant. The plaintiff sent an email message to Soroko, acknowledging receipt of the form, and posing several questions. Thereafter, the plaintiff spoke with an individual at LSI named Jeff, who indicated that the plaintiff must send his “blood work” to LSI. Later in the day, Soroko called the plaintiff again to answer the plaintiff's questions. Among other matters discussed, the plaintiff recounted how he had learned of LSI through the internet, and the plaintiff specifically discussed the video testimonial he had viewed online.
On June 3, 2008, the plaintiff attempted to schedule a telephone call between his New York physician, Dr. Dimatteo, and Dr. Perry of LSI. However, Perry was not available. The next day, Dimatteo informed the plaintiff that a physician from LSI had contacted him and discussed with him the plaintiff's upcoming surgery.
Meanwhile, the plaintiff had his blood work completed at his family physician's office in White Plains. The results were sent to LSI.
On June 6, 2008, or at some point soon thereafter, the plaintiff traveled from his home in New Rochelle to the LSI facility in Tampa. On June 9, 2008, the plaintiff underwent his first surgical procedure at LSI, performed by the defendant physician Kevin Scott. On June 12, 2008, the plaintiff underwent a second procedure at LSI, this one performed by the defendant physician Vernon Morris.
Between June 12, 2008, and June 26, 2008, the plaintiff, having returned to New York, telephoned the physicians at LSI on a daily basis. He informed the physicians that he was in constant pain, and he requested pain medication. Prescriptions were provided by the physicians at LSI and filled at pharmacies in New Rochelle.
On July 14, 2008, the plaintiff was examined by Dr. Jack Stern in White Plains. Stern compared the plaintiff's presurgery MRI scans with his post-surgery MRI scans, and confirmed that certain disc herniations that were present prior to surgery were still present after surgery. The plaintiff, Stern, and representatives of LSI conducted a conference call, after which LSI's representatives agreed to fly the plaintiff back to Tampa, at no cost to him, for a “revision surgery.”
Between July 2008 and August 3, 2008, the plaintiff communicated repeatedly via telephone and email with Cyndi Nation, head of Patient Advocacy/Relations at LSI. The plaintiff insisted that LSI have its most experienced surgeon handle his care. Nation indicated that LSI's most experienced surgeon was the defendant Craig Wolff, and that he would perform a “revision surgery.”
On August 6, 2008, Wolff performed surgery on the plaintiff. After the surgery, Wolff informed the plaintiff that he had “removed a bone chip on the nerve, left over from Dr. Scott's first surgery.” Following this surgery, the plaintiff was in severe pain. He remained in his hotel room, in constant pain, until he departed Tampa for New York on August 9, 2008.
Between August 9, 2008, and October 31, 2008, the plaintiff communicated almost daily with Nation via text messages, telephone calls, and email messages, conveying to Nation the symptoms he was experiencing. On August 18, 2008, the plaintiff received a telephone call from Wolff's assistant nurse, Sherri, concerning the pain that the plaintiff was experiencing. She advised the plaintiff to take his pain medication.
On August 26, 2008, in addition to the symptoms he had previously been experiencing, the defendant began suffering from severe headaches. The following day, the plaintiff telephoned Wolff and explained his circumstances. Wolff ordered a new MRI scan to be performed in Tarrytown. The MRI film revealed a collection of fluid surrounding the surgical area.
Stern and Dr. Bradley Cash, another of the plaintiff's New York physicians, consulted each other and determined that the fluid was possibly from a dura leak. Between August 27, 2008, and September 22, 2008, the plaintiff telephoned and exchanged text messages with LSI. Eventually, Wolff and Cash had a telephone conversation. Wolff reviewed the plaintiff's MRI films, and concluded that the plaintiff indeed had sustained a dura leak. Wolff directed the plaintiff to return to Tampa to undergo yet another procedure at LSI, this one to address the dura leak.
On August 29, 2008, the plaintiff spoke with Nation, who indicated that LSI would pay for the plaintiff's airfare to Tampa for the next procedure. However, Wolff warned the plaintiff that this additional procedure would involve more pain, and would delay the plaintiff's healing process. The plaintiff, who could not tolerate more pain, elected to wait and see if his pain subsided. After the plaintiff followed Wolff's advice that he lie flat for 24 to 48 hours, the pain indeed subsided to a limited extent.
On September 7, 2008, the plaintiff transmitted an email message to Trey Traveisa, LSI's President, and described his situation. Traveisa indicated that the LSI physicians were evaluating the plaintiff's case, and would follow up with him. On September 10, 2008, Traveisa contacted the plaintiff and stated that “nothing was wrong.” Traveisa suggested that the plaintiff call him on his cellular phone. On September 11, 2008, the plaintiff transmitted an email message and also telephoned Traveisa, notifying him that he had consulted with two physicians in New York who opined that the swelling in the plaintiff's neck was likely the result of pressure from a dura leak. Traveisa again suggested that the plaintiff call him on his cellular phone.
Between September 11, 2008, and December, 2008, the plaintiff made numerous attempts to collect his medical records and additional information from LSI. He transmitted email messages to Traveisa and Nation, and requested follow-up calls with Wolff. The plaintiff also requested that LSI send his MRI films to him so he could have a New York physician review them. Additionally, the plaintiff requested that LSI fax him the reports concerning his case and fax their recommendations for additional surgery to Cash.
Following consultation with other physicians, the plaintiff ultimately underwent an additional surgery in New York on April 3, 2009.
In addition to the communications between the plaintiff and LSI in the form of telephone calls, email messages, facsimile transmissions, and online solicitation, the plaintiff claimed that LSI conducted seminars within New York State. Specifically, he claimed that LSI held one of these seminars on November 1, 2010.
“A party may move for judgment dismissing one or more causes of action asserted against him on the ground that ... the court has not jurisdiction of the person of the defendant” (CPLR 3211[a][8] ). “ ‘While the ultimate burden of proof rests with the party asserting jurisdiction ..., the plaintiff [ ], in opposition to a motion to dismiss pursuant to CPLR 3211(a)(8), need only make a prima facie showing that the defendant[s] w[ere] subject to the personal jurisdiction of the Supreme Court’ ” (Daniel B. Katz & Assoc. Corp. v. Midland Rushmore, LLC, 90 A.D.3d 977, 978, 937 N.Y.S.2d 236, quoting Cornely v. Dynamic HVAC Supply, LLC, 44 A.D.3d 986, 986, 845 N.Y.S.2d 797).
CPLR 302(a)(1) provides:
“(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:
“1. transacts any business within the state or contracts anywhere to supply goods or services in the state” (CPLR 302[a][1] ).
CPLR 302(a)(1) “is a ‘single act statute [and] proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted’ ” ( Kimco Exch. Place Corp. v. Thomas Benz, Inc., 34 A.D.3d 433, 434, 824 N.Y.S.2d 353, quoting Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d 65, 71, 818 N.Y.S.2d 164, 850 N.E.2d 1140,cert. denied549 U.S. 1095, 127 S.Ct. 832, 166 L.Ed.2d 665 [some internal quotation marks omitted]; see Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 467, 527 N.Y.S.2d 195, 522 N.E.2d 40;Daniel B. Katz & Assoc. Corp. v. Midland Rushmore, LLC, 90 A.D.3d at 979, 937 N.Y.S.2d 236;Grimaldi v. Guinn, 72 A.D.3d 37, 44, 895 N.Y.S.2d 156;Zottola v. AGI Group, Inc., 63 A.D.3d 1052, 1054, 882 N.Y.S.2d 445;Wright v. 299 Union Ave. Corp., 288 A.D.2d 382, 383, 733 N.Y.S.2d 223).
“ ‘[T]he growth of national markets for commercial trade, as well as technological advances in communication, enable a party to transact enormous volumes of business within a state without physically entering it’ ” ( Grimaldi v. Guinn, 72 A.D.3d at 44, 895 N.Y.S.2d 156, quoting Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d at 71, 818 N.Y.S.2d 164, 850 N.E.2d 1140). Therefore, “[s]o long as a party avails itself of the benefits of the forum, has sufficient minimum contacts with it, and should reasonably expect to defend its actions there, due process is not offended if that party is subjected to jurisdiction even if not ‘present’ in that State” ( Grimaldi v. Guinn, 72 A.D.3d at 44, 895 N.Y.S.2d 156 [internal quotation marks omitted]; see Kreutter v. McFadden Oil Corp., 71 N.Y.2d at 466, 527 N.Y.S.2d 195, 522 N.E.2d 40).
“Purposeful activities are those with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws” (Daniel B. Katz & Assoc. Corp. v. Midland Rushmore, LLC, 90 A.D.3d at 979, 937 N.Y.S.2d 236 [internal quotation marks omitted]; see Fischbarg v. Doucet, 9 N.Y.3d 375, 380, 849 N.Y.S.2d 501, 880 N.E.2d 22; McKee Elec. Co. v. Rauland–Borg Corp., 20 N.Y.2d 377, 382, 283 N.Y.S.2d 34, 229 N.E.2d 604). “Not all purposeful activity, however, constitutes a ‘transaction of business' within the meaning of CPLR 302(a)(1)” ( Fischbarg v. Doucet, 9 N.Y.3d at 380, 849 N.Y.S.2d 501, 880 N.E.2d 22). Thus, the Court of Appeals has held “that merely telephon[ing] a single order to New York requesting a shipment of goods to another state, the transitory presence of a corporate official here, and communications and shipments sent here by an out-of-state doctor serving as a consultant to plaintiff's New York physician do not support CPLR 302(a)(1) jurisdiction” ( id. [internal quotation marks and citations omitted] ). Further, the Court of Appeals has stated that, “[a]lthough it is impossible to precisely fix those acts that constitute a transaction of business, our precedents establish that it is the quality of the defendants' New York contacts that is the primary consideration” ( id.). For example, in Fischbarg, in considering the nature of the contacts involved, and in concluding that the defendants were subject to New York's long-arm jurisdiction, the Court of Appeals stated, “[i]t is the nature and quality of these contacts, through which defendants established a substantial ongoing professional commitment between themselves and plaintiff, governed by the laws of our state, which support long-arm jurisdiction” ( id. at 382–383, 849 N.Y.S.2d 501, 880 N.E.2d 22). It is noteworthy that “it is not necessarily who initiated contact that is determinative, but rather, the nature and quality of the contacts and the relationship established as a result ( see Fischbarg v. Doucet, 9 N.Y.3d at 382–383, 849 N.Y.S.2d 501, 880 N.E.2d 22), based on the totality of the circumstances” ( Grimaldi v. Guinn, 72 A.D.3d at 51, 895 N.Y.S.2d 156;see Farkas v. Farkas, 36 A.D.3d 852, 853, 830 N.Y.S.2d 220).
“The purposeful creation of a continuing relationship has been a contributing factor in finding sufficient contacts to justify the exercise of long-arm jurisdiction” ( Grimaldi v. Guinn, 72 A.D.3d at 44, 895 N.Y.S.2d 156;see Fischbarg v. Doucet, 9 N.Y.3d at 381, 849 N.Y.S.2d 501, 880 N.E.2d 22;George Reiner & Co. v. Schwartz, 41 N.Y.2d 648, 653, 394 N.Y.S.2d 844, 363 N.E.2d 551). “ ‘Whether a non-domiciliary has engaged in sufficient purposeful activity to confer jurisdiction in New York requires an examination of the totality of the circumstances' ” ( Grimaldi v. Guinn, 72 A.D.3d at 44–45, 895 N.Y.S.2d 156, quoting Farkas v. Farkas, 36 A.D.3d at 853, 830 N.Y.S.2d 220). Accordingly, a consideration of the nature and quality of LSI's contacts with New York follows.
The plaintiff learned of LSI while navigating the internet, after he clicked on an advertisement for LSI on AOL's home page. LSI maintains its own website. LSI claims that its website is strictly passive in nature, solely providing information to the public. The defendants assert that services cannot be purchased through LSI's website, and observe that the plaintiff here did not schedule his surgery through the website. Therefore, the defendants assert that LSI's website cannot serve as a predicate for conferring jurisdiction over them.
As this Court stated in Grimaldi, “[t]he extent to which an Internet Web site confers personal jurisdiction in the forum in which the consumer's computer is located has been addressed by several courts” ( Grimaldi v. Guinn, 72 A.D.3d at 47, 895 N.Y.S.2d 156). “A useful jurisdictional analysis pertaining to online presence appears in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 [1997]” ( Grimaldi v. Guinn, 72 A.D.3d at 47, 895 N.Y.S.2d 156), in which Justice McLaughlin of the United States District Court for the Western District of Pennsylvania stated:
“At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper ... At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction ... The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site” ( Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. at 1124).
It should be acknowledged that, with regard to internet websites and personal jurisdiction, “a website's interactivity may be useful for analyzing personal jurisdiction under [CPLR] 302(a)(1), but only insofar as it helps to decide whether the defendant ‘transacts any business' in New York—that is, whether the defendant, through the website, ‘purposefully avail[ed] himself of the privilege of conducting activities within New York, thus invoking the benefits and protections of its laws' ” ( Best Van Lines, Inc. v. Walker, 490 F.3d 239, 252 [2d Cir.], quoting CutCo Indus. v. Naughton, 806 F.2d 361, 365 [2d Cir.] [some internal quotation marks omitted] ).
It may be the case that LSI's website is what Zippo would characterize as a “passive” website, or, in reality, it may occupy “the messier middle ground where personal jurisdiction depends on the level of interactivity and commercial nature of the exchange of information that occurs on the website” ( Henderson v. Laser Spine Inst. LLC, 815 F.Supp.2d 353, 373 [D.Me.] [internal quotation marks omitted] ). The record in this case, however, contains only sparse evidence regarding the nature of LSI's website. The plaintiff stated in an affidavit that he learned of LSI through an advertisement on AOL's home page. As a result of observing this advertisement and viewing the testimonial, the plaintiff contacted LSI. There is also a printout in the record of LSI seminar dates which was allegedly printed from LSI's website. Otherwise, the record is devoid of evidence concerning the nature of LSI's website from which to reach any conclusions concerning that website's degree of interactivity. Therefore, on this record, there is no basis to conclude that LSI's website could be characterized, under the Zippo continuum, as anything other than a “passive” website.
In addition to LSI's website, the defendants' contacts with the plaintiff in New York consisted in large part of numerous telephone calls, email messages, and facsimile transmissions exchanged over a period of time. The nature and extent of these contacts are set forth above, and will not be fully revisited here. However, in brief, the record establishes that LSI and the plaintiff exchanged numerous email messages over approximately six months in 2008. It is undisputed that the parties also had many telephone conversations over this period of time. LSI electronically sent the plaintiff a questionnaire to complete, which he did. On May 30, 2008, LSI contacted the plaintiff via email and informed him that LSI had a cancellation, and encouraged him to travel to Tampa, Florida, on short notice, to undergo the recommended surgical procedure. A physician from LSI consulted directly with one of the plaintiff's New York physicians. After a representative from LSI instructed the plaintiff to have his “blood work” performed, the plaintiff did so in White Plains, and had the results sent from New York to LSI in Florida. In June 2008, the plaintiff traveled to the LSI facility in Tampa, and, on June 9, 2008, the plaintiff underwent his first surgical procedure at that facility. On June 12, 2008, the plaintiff underwent a second procedure at that facility. Thereafter, between June 12, 2008, and June 26, 2008, the plaintiff, in New York, telephoned the physicians at LSI on a daily basis concerning his constant pain following the surgical procedures. The LSI physicians provided the plaintiff with prescriptions for medication, which were filled at pharmacies in New Rochelle. As the plaintiff's condition failed to improve, an LSI doctor had a telephone conversation with one of the plaintiff's New York physicians, after which LSI agreed to fly the plaintiff back to Tampa for a “revision surgery.” Between August 9, 2008, and October 31, 2008, following the plaintiff's third surgical procedure at the LSI facility on August 6, 2008, the plaintiff communicated almost daily with Nation via text messages, telephone calls, and email messages. At one point, Wolff ordered a new MRI to be performed on the plaintiff in Tarrytown. Between August 27, 2008, and September 22, 2008, the plaintiff telephoned and exchanged text messages with LSI representatives, and, eventually, an LSI physician had another telephone conversation with one of the plaintiff's New York physicians. On August 28, 2008, Wolff again reviewed the plaintiff's MRI films, and concluded that the plaintiff indeed had a dura leak. Following a number of additional telephone and email exchanges between the plaintiff and the defendants, the plaintiff ultimately elected to undergo an additional surgical procedure in New York which was not performed by the defendants.
Based on the totality of the circumstances ( see Farkas v. Farkas, 36 A.D.3d at 853, 830 N.Y.S.2d 220), in light of the number, nature, and timing of all of the contacts involved, including the numerous telephone, email, and text message communications with the plaintiff in New York, the consultations with the plaintiff's New York physicians, the filling of prescriptions in New York pharmacies, and the ordering of blood work and MRIs in New York, as well as LSI's use of its website to solicit business from internet users, LSI had sufficient contacts with New York to be subject to its long-arm jurisdiction. The contacts described above demonstrate the “ ‘purposeful creation of a continuing relationship’ ” with the plaintiff ( Grimaldi v. Guinn, 72 A.D.3d at 51, 895 N.Y.S.2d 156, quoting Fischbarg v. Doucet, 9 N.Y.3d at 381, 849 N.Y.S.2d 501, 880 N.E.2d 22 [some internal quotation marks omitted]; see George Reiner & Co. v. Schwartz, 41 N.Y.2d at 653, 394 N.Y.S.2d 844, 363 N.E.2d 551;cf. Skrodzki v. Marcello, 810 F.Supp.2d 501 [E.D.N.Y.2011] ). Indeed, these contacts were more extensive than those at issue in Grimaldi v. Guinn, in which this Court concluded that, based on the deployment of a passive website, coupled with “the number, nature, and timing of all of the contacts involved, including the numerous telephone, fax, e-mail, and other written communications with the plaintiff in New York,” the defendant Guinn had sufficient contacts with New York State to confer jurisdiction over him (72 A.D.3d at 51, 895 N.Y.S.2d 156).
LSI asserts that a number of the contacts are irrelevant, as they occurred following the plaintiff's treatments at LSI's facility in Florida. However, first, a substantial number of these contacts occurred prior to the plaintiff's last treatment at LSI's Florida facility on August 6, 2008. Second, under a minimum contacts analysis, there is no per se temporal limitation that prohibits the consideration of contacts during the time surrounding the claimed injury ( see Harlow v. Children's Hosp., 432 F.3d 50, 61 [1st Cir.]; Henderson v. Laser Spine Inst. LLC, 815 F.Supp.2d at 370).
Furthermore, there is a substantial relationship between the transaction at issue and the claims asserted by the plaintiff. The plaintiff's three causes of action, sounding in medical malpractice, negligent hiring and supervision, and lack of informed consent, all arise directly from the transaction ( see Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d at 71, 818 N.Y.S.2d 164, 850 N.E.2d 1140;Bogal v. Finger, 59 A.D.3d 653, 654, 874 N.Y.S.2d 217;Kimco Exch. Place Corp. v. Thomas Benz, Inc., 34 A.D.3d at 434, 824 N.Y.S.2d 353).
Although LSI cannot be deemed to have been physically present in New York, the exercise of jurisdiction over LSI, and, by extension, the physician defendants, does not offend due process. LSI purposefully availed itself of the benefits of the forum state by the manner in which it projected itself into New York. It had sufficient minimum contacts with New York as set forth fully above, and it could reasonably be expected to defend its actions here ( see generally Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d at 71, 818 N.Y.S.2d 164, 850 N.E.2d 1140;Kreutter v. McFadden Oil Corp., 71 N.Y.2d at 466, 527 N.Y.S.2d 195, 522 N.E.2d 40). Accordingly, “ ‘[e]xercising jurisdiction over the [defendants] in the circumstances presented here would not be inconsistent with traditional notions of due process, fair play, and substantial justice’ ” ( Grimaldi v. Guinn, 72 A.D.3d at 52, 895 N.Y.S.2d 156, quoting Bogal v. Finger, 59 A.D.3d at 654–655, 874 N.Y.S.2d 217;see International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95;LaMarca v. Pak–Mor Mfg. Co., 95 N.Y.2d 210, 214–215, 713 N.Y.S.2d 304, 735 N.E.2d 883;Opticare Acquisition Corp. v. Castillo, 25 A.D.3d 238, 247–248, 806 N.Y.S.2d 84).
The defendants rely on, inter alia, O'Brien v. Hackensack Univ. Med. Ctr., 305 A.D.2d 199, 760 N.Y.S.2d 425, in support of their contention that jurisdiction cannot be conferred over them here, and the majority is persuaded by the defendants' argument in this regard. However, first, while this Court may accept the decisions of the other judicial departments of the Appellate Division as persuasive, we are free to reach a different result ( see Mountain View Coach Lines v. Storms, 102 A.D.2d 663, 665, 476 N.Y.S.2d 918;see e.g. Klee v. Americas Best Bottling Co., Inc., 76 A.D.3d 544, 546, 907 N.Y.S.2d 260). Second, in considering the defendant's contacts with New York, in O'Brien, the Appellate Division, First Department, relied, in part, on cases ( see Cardone v. Jiminy Peak, 245 A.D.2d 1002, 1003, 667 N.Y.S.2d 82;Chamberlain v. Jiminy Peak, 176 A.D.2d 1109, 1110, 575 N.Y.S.2d 410) employing a more stringent “doing business” standard applicable under CPLR 301 ( see Sills v. Ronald Reagan Presidential Found., Inc., 2009 WL 1490852, *8 n. 7, 2009 U.S. Dist. LEXIS 44774, *24–26 n. 7 [S.D.N.Y.]; see generally McGowan v. Smith, 52 N.Y.2d 268, 272–273, 437 N.Y.S.2d 643, 419 N.E.2d 321). Additionally, there was no internet presence at issue in O'Brien. Finally, as previously stated, the contacts at issue here are more substantial than those considered in this Court's Grimaldi case, which resulted in the defendant Guinn being subject to jurisdiction in New York State ( see Grimaldi v. Guinn, 72 A.D.3d 37, 895 N.Y.S.2d 156).
Furthermore, a determination that jurisdiction may be conferred on the defendants here is in harmony with two recent federal district court decisions in which LSI was found to be subject to personal jurisdiction in states outside of Florida where it did not have any physical presence, and in which the contacts at issue were essentially the same as those at issue here ( see Henderson v. Laser Spine Inst. LLC, 815 F.Supp.2d 353;Bond v. Laser Spine Inst., LLC, 2010 WL 3212480, 2010 U.S. Dist. LEXIS 82736 [E.D.Pa.] ).
In Henderson, the totality of the contacts discussed included “(1) the traditional contacts of phone, email, and faxed solicitations to [the plaintiff]; (2) the nationwide advertising placed in traditional magazines and far-flung in-flight catalogues; and (3) the semi-interactive website claiming to have helped ‘tens of thousands of people—from all 50 states' ” ( Henderson v. Laser Spine Inst. LLC, 815 F.Supp.2d at 377). The District Court determined that these contacts constituted LSI's purposeful availment of the benefits of conducting business in the State of Maine ( see id.). The court further determined that the exercise of personal jurisdiction comported with the traditional notions of fair play and substantial justice ( see id. at 377–379;see generally International Shoe Co. v. Washington, 326 U.S. at 320, 66 S.Ct. 154), based on consideration of certain factors, including
“ ‘(1) the defendant's burden of appearing, (2) the forum state's interest in adjudicating the dispute, (3) the plaintiff's interest in obtaining convenient and effective relief, (4) the judicial system's interest in obtaining the most effective resolution of the controversy, and (5) the common interests of all sovereigns in promoting substantive social policies' ” ( Henderson v. Laser Spine Inst. LLC, 815 F.Supp.2d at 378, quoting Harlow v. Childrens Hosp., 432 F.3d at 67).
Accordingly, the District Court, inter alia, denied that branch of LSI's motion which was to dismiss the complaint for lack of personal jurisdiction ( see Henderson v. Laser Spine Inst. LLC, 815 F.Supp.2d at 383). The District Court reached its determination notwithstanding LSI's arguments, echoed here, that all relevant events occurred in Florida, and that “notions of fair play and substantial justice” weighed against the exercise of personal jurisdiction over LSI ( id. at 362 [internal quotation marks omitted] ).
Similarly, in Bond, the United States District Court for the Eastern District of Pennsylvania concluded, inter alia, that the plaintiffs “offered sufficient jurisdictional facts to establish that jurisdiction pursuant to” Pennsylvania's long-arm statute ( see42 Pa. Cons. Stat. § 5322) was proper ( Bond v. Laser Spine Inst., LLC, 2010 WL 3212480, *11, 2010 U.S. Dist. LEXIS 82736, *31). The minimum contacts found sufficient in Bond included the following:
“LSI communicated directly with Mr. Bond while Mr. Bond was in Pennsylvania via Dr. Michael Perry, and encouraged Mr. Bond to travel to LSI's facility in Tampa for surgery. LSI assisted Mr. Bond in making his travel plans to go to LSI in Tampa for surgery. Additionally, LSI staff spoke with Mr. Bond on the phone repeatedly after the surgery while he was in Pennsylvania, diagnosed his post-surgery pain as ‘part of the healing process,’ prescribed steroids for him and called in the prescription to his pharmacy, advised him to see a neurosurgeon at Bryn Mawr Hospital, and advised the Bryn Mawr Hospital emergency room technician to prescribe more steroids. Moreover, the LSI doctor who advised the Bryn Mawr Hospital emergency room technician, Dr. Vernon Morris, is advertised on the LSI website as ‘a senior member of the LSI surgical team’ and ‘lead[er of] the Pennsylvania LSI surgical team’ ” ( Bond v. Laser Spine Inst., LLC, 2010 WL 3212480, *9, 2010 U.S. Dist. LEXIS 82736, *26–27 [citations omitted] ).
The District Court concluded that these minimum contacts established that LSI purposefully availed itself of the forum state, Pennsylvania ( see id., 2010 WL 3212480, *9, 2010 U.S. Dist. LEXIS 82736, *27). Based on essentially the same factors considered in Henderson, the District Court in Bond determined that the exercise of jurisdiction over LSI comported with fair play and substantial justice ( see id., 2010 WL 3212480, *10–11, 2010 U.S. Dist. LEXIS 82736, *29–31).
Of course, New York's long-arm statute and case law differ from those of Maine and Pennsylvania. Nonetheless, it is worth noting that my conclusion here is in harmony with these recent cases involving LSI. Moreover, these cases are illuminating as to the various ways in which LSI and similar corporations are, certainly in the lay sense, availing themselves of benefits of foreign jurisdictions in this era of “ ‘growth of national markets for commercial trade, as well as technological advances in communication’ ” ( Grimaldi v. Guinn, 72 A.D.3d at 44, 895 N.Y.S.2d 156, quoting Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d at 71, 818 N.Y.S.2d 164, 850 N.E.2d 1140).
As the majority observes, mere days after Bond was decided, the United States District Court for the District of New Jersey determined that it could not exercise personal jurisdiction over LSI ( see Morilla v. Laser Spine Inst., LLC, 2010 WL 3258312, *6, 2010 U.S. Dist. LEXIS 83608, *16–17 [D.N.J.] ). However, in Morilla, the plaintiffs alleged that LSI had sufficient contacts with New Jersey based on its “website and internet advertisements” ( id., 2010 WL 3258312, *5, 2010 U.S. Dist. LEXIS 83608, *13). The District Court concluded, based on the record before it, that the plaintiffs “have neither proven that defendants' website was commercially interactive under the Zippo scale, nor that there was ‘something more’ to show that defendants purposefully availed themselves of the laws of New Jersey” ( id.). Specifically, the court stated that the plaintiff provided it with “nothing more than unspecific allegations and a link to the current version of defendants' website. That is not enough” ( id.). The District Court's decision was based almost entirely on LSI's website, and the court noted that, unlike here, the “plaintiffs do not provide any specific details about the instances of communications between themselves and” LSI ( id., 2010 WL 3258312, *6, 2010 U.S. Dist. LEXIS 83608, *16).Morilla is clearly distinguishable from the instant case.
Based on the foregoing, it is my conclusion that LSI is subject to jurisdiction in New York pursuant to CPLR 302(a)(1). Particularly in light of evolving business practices resulting from technological advances, the manner in which businesses employing such technologies are increasingly reaching outside of their traditional jurisdictions to acquire new business, and the degree to which these changes have an impact upon consumers, there were sufficient minimum contacts present to warrant the exercise of jurisdiction pursuant to CPLR 302(a)(1). Furthermore, the exercise of jurisdiction here comports with due process.
Accordingly, I respectfully dissent. I would reverse the order insofar as appealed from, and deny that branch of the defendants' motion which was to dismiss the complaint based on lack of personal jurisdiction under CPLR 302.
ORDERED that the order is affirmed insofar as appealed from, with costs.