O'BRIEN v. Hackensack University Medical Center

• Decision Date: 13 May 2003
• Citation: 305 A.D.2d 199,760 N.Y.S.2d 425
• Parties: ADELE O'BRIEN, Respondent,<BR>v.<BR>HACKENSACK UNIVERSITY MEDICAL CENTER, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

305 A.D.2d 199

760 N.Y.S.2d 425

ADELE O'BRIEN, Respondent,

v.HACKENSACK UNIVERSITY MEDICAL CENTER, Appellant, et al., Defendants.

Decided May 13, 2003.

Concur — Tom, J.P., Mazzarelli, Andrias and Saxe, JJ.

This is a medical malpractice action in which the parties dispute whether New York's long-arm statute (CPLR 302) confers jurisdiction over defendant-appellant, a New Jersey medical center. Plaintiff's decedent, a Bronx resident and cancer patient who died on March 14, 1998, was treated at defendant Hackensack University Medical Center from November 1997 through March 1998. 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, has no New York mailing address or any New York telephone number, has no agents or representatives or bank accounts in New York, pays no New York taxes and files no New York tax returns, and neither owns, leases, uses nor possesses any New York real estate. The purported New York contacts are that defendant solicits patients that reside in New York and, in fact, solicited decedent. Plaintiff also asserts that defendant has an affiliation with New York's Einstein Hospital in which regard referrals are made to New York doctors for laboratory work and examinations, and that defendant purportedly participates in studies involving New York residents. With regard to plaintiff's decedent, plaintiff 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 telephone calls, mail and fax between defendant's physicians in New Jersey and New York physicians. However, no allegations are made of any financial connection between the institutions arising out of these referrals such as would establish that defendant was providing goods or services within New York.

Plaintiff relies on the "transacts * * * business" provision of CPLR 302 (a) (1), as well as the "tortious act without the state causing injury to [a] person * * * within the state" provision of CPLR 302 (a) (3), as grounds for New York's long-arm jurisdiction. Regarding the transaction-of-business predicate for jurisdiction, the connection between the activity and the state must be purposeful. A single transaction will suffice, as long as there is a substantial relationship between that transaction and the alleged injury (Reiner & Co. v Schwartz, 41 NY2d 648 [1977]; Bunkoff v State Auto. Mut. Ins. Co., 296 AD2d 699 [2002]). Cumulative minor activities that, individually, may be insufficient, may suffice for constitutional purposes (Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, 458 [1965], cert denied sub nom. Estwing Mfg. Co. v Singer, 382 US 905 [1965]) as long as the cumulative effect creates a significant presence within the state (cf. McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377, 382 [1967] [cumulative contacts still "infinitesimal"]). In either event, the burden rests on plaintiff as the party asserting jurisdiction (Reiner, supra; Bunkoff, supra). We have stated that the "test is whether the defendant has engaged in some purposeful activity in New York in connection with the matter in controversy" (Otterbourg, Steindler, Houston & Rosen v Shreve City Apts., 147 AD2d 327, 331).

However, mere solicitation of business within the state does not constitute the transaction of business within the state, unless the solicitation in New York is supplemented by business transactions occurring in the state (cf. Kaczorowski v Black & Adams, 293 AD2d 358 [2002]), or the solicitation is accompanied by a fair measure of the defendant's permanence and continuity in New York which establishes a New York presence (cf. Cardone v Jiminy Peak, 245 AD2d 1002, 1003 [1997]; cf. Chamberlain v Jiminy Peak, 176 AD2d 1109, 1110 [1991]). Solicitation limited to the defendant maintaining a telephone listing in New York (Carte v Parkoff, 152 AD2d 615, 616 [1989]; Ziperman v Frontier Hotel, 50 AD2d 581 [1975]; J. E. T. Adv. Assoc. v Lawn King, 84 AD2d 744 [1981], appeal dismissed 56 NY2d 648 [1982]) is insufficient and, as noted, defenda...