Carbone v. Fort Erie Jockey Club, Ltd.

• Decision Date: 17 April 1975
• Citation: 366 N.Y.S.2d 485,47 A.D.2d 337
• Parties: Christie CARBONE, Respondent, v. FORT ERIE JOCKEY CLUB, LTD., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 485

366 N.Y.S.2d 485

47 A.D.2d 337

Christie CARBONE, Respondent, v. FORT ERIE JOCKEY CLUB, LTD., Appellant.

Supreme Court, Appellate Division, Fourth Department.

April 17, 1975.

Brown, Kelly, Turner, Hassett & Leach, Buffalo (Bruce R. Fenwick, Buffalo, of counsel), for appellant.

Norman B. Lewis, P.C., Buffalo (Benjamin J. Hoey, Buffalo, of counsel), for respondent.

Before MARSH, P.J., and MOULE, MAHONEY, DEL VECCHIO and WITMER, JJ.

OPINION

MAHONEY, Justice.

The question presented on this appeal is whether defendant, Fort Erie Jockey Club, Ltd., the owner and operator of a horse racing tract at Fort Erie in the Province of Ontario, Canada, has been conducting business within the State of New York so as to be subject to In personam jurisdiction in this State. Special Term held that such jurisdiction exists. We conclude that it does not.

Plaintiff alleges that on August 15, 1971 he, a resident of Erie County, was injured in a fall on defendant's premises at Fort Erie, Ontario, Canada by reason of defendant's negligence. In December, 1971 plaintiff began this action against defendant by service of a summons upon defendant in Ontario, Canada. It was stated in the summons that it was served pursuant to CPLR 302(a), which is New York's 'long arm' statute for asserting jurisdiction over foreign defendants. Defendant interposed an answer, alleging as an affirmative defense that it is not subject to In personam jurisdiction in this State and it brought this motion to vacate the summons and dismiss the complaint. Affidavits in support of the motion averred that it has never conducted any business in New York, that it has no office or assets in New York and that it has no employee or agent in New York. In opposition to the motion plaintiff submitted his attorney's affidavit averring that for years defendant has conducted systematic solicitation of business and advertising in the State of New York, particularly the western area thereof, that it has a telephone listing of its Fort Erie, Ontario, Canada telephone in the Buffalo Telephone Directory, that it engages in regular advertising in New York newspapers and that by use of radio, television and billboards in New York, it encourages western New York social functions and outings to defendant's race track and that it relies heavily on New York patronage for the success of its business.

In his brief plaintiff forthrightly states that jurisdiction does not rest on the New York 'long arm' statute (CPLR 302(a)) but is grounded on the claim that it is engaged generally in doing business in this State (CPLR 301). This is necessarily so, because under no view of the facts of this case could it be found that plaintiff's cause of action arose out of acts of defendant in New York or business that defendant transacted in New York (see Frummer v. Hilton Hotels Int., 19 N.Y.2d 533, 535--536, 281 N.Y.S.2d 41, 42--44, 227 N.E.2d 851, 852--854). Thus, our inquiry is limited to whether there is any basis for a finding that defendant has been 'doing business' generally in New York and thus had been 'present' here--the due process ground for assumption of jurisdiction over a foreign corporation (see International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95; Frummer v. Hilton Hotels Int., supra; Simonson v. International Bank, 14 N.Y.2d 281, 251 N.Y.S.2d 433, 200 N.E.2d 427; and see also, Rosenberg Co. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372).

Whether a foreign corporation is engaged in activities in this State sufficient to subject it to general jurisdiction here because it is 'doing business' and is 'present' here is, in general, 'a simple pragmatic' matter--a question of fact (Bryant v. Finnish Nat. Airline, 15 N.Y.2d 426, 432, 260 N.Y.S.2d 625, 628, 208 N.E.2d 439, 441; Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915; Elish v. St. Louis Southwestern Ry. Co., 305 N.Y. 267, 112 N.E.2d 842; W. Lowenthal Co., Inc. v. Colonial Woolen Mills, Inc., 38 A.D.2d 775, 327 N.Y.S.2d 899; Meunier v. Stebo, Inc., 38 A.D.2d 590, 328 N.Y.S.2d 608). Generally, however, it has been held that the mere solicitation or promotion of business in New York by an out-of-State company does not amount to the minimum contacts required to constitute 'doing business' in New York (Delagi v. Volkswagonwerk AG of Wolfsburg, Germany, 29 N.Y.2d 426, 432, 328 N.Y.S.2d 653, 656, 278 N.E.2d 895, 897; Miller v. Surf Properties, Inc., 4 N.Y.2d 475, 176 N.Y.S.2d 318, 151 N.E.2d 874; ...