Carte v. Parkoff

• Decision Date: 10 July 1989
• Citation: 152 A.D.2d 615,543 N.Y.S.2d 718
• Parties: Richard CARTE, Respondent, v. Michael PARKOFF, D.D.S., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 718

543 N.Y.S.2d 718

152 A.D.2d 615

Richard CARTE, Respondent, v. Michael PARKOFF, D.D.S., Appellant.

Supreme Court, Appellate Division Second Department.

July 10, 1989.

Morris & Duffy, New York City (Patricia D'Alvia, of counsel), for appellant.

George David Rosenbaum, New York City (Elan Wurtzel, of counsel), for respondent.

Before MANGANO, J.P., and BRACKEN, EIBER and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages based on dental malpractice, the defendant appeals from an order of the Supreme Court, Kings County (Scholnick, J.), dated February 17, 1988, which denied his motion to dismiss the complaint for lack of personal jurisdiction.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff, a resident of New York, commenced this personal injury action against the defendant, a resident of Franklin Lakes, New Jersey, alleging that the defendant had committed dental malpractice, and that the defendant had caused "irreparable injury to [the plaintiff's] teeth". In support of his motion to dismiss the complaint, the defendant averred that he has conducted his dentistry practice in New Jersey since 1982. The plaintiff was treated in the defendant's office in Mahwah, New Jersey, in 1984. It is conceded that the summons and complaint were served on the defendant at his office in Mahwah, New Jersey.

In opposition to this motion, the plaintiff's attorney submitted an affirmation in which he stated, contrary to the sworn statements of the defendant himself, that the defendant "maintain[ed] an office and/or residence within the State of New York". However, it is clear from the remainder of this affirmation, and from the contents of two supplemental affirmations in opposition, that the plaintiff's attorney has no personal knowledge concerning the whereabouts of either the defendant's office or his residence, and that the sole basis for the attorney's assertions in this respect was the presence, in a 1985/86 NYNEX telephone directory, of a listing with the defendant's name, followed by a New York address and telephone number. An investigator for the plaintiff averred that when he called the number listed next to the defendant's name, he was connected to the defendant's office in New Jersey.

Based on the foregoing facts, it is clear that the Supreme Court erred in denying the defendant's motion to dismiss the complaint on the ground that the court lacked jurisdiction over the person of the defendant (CPLR 3211[a][8]. The plaintiff failed to meet his burden of showing the existence of facts sufficient to warrant the exercise of jurisdiction over the person of the defendant as a matter of New York law.

The court has no jurisdiction over the defendant pursuant to CPLR 302(a)(3), since the injury to the plaintiff, which was allegedly caused by the defendant's tortious conduct, occurred in New Jersey rather than in New York. For the purpose of determining the applicability of CPLR 302(a)(3), "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" (Hermann v. Sharon Hosp., 135 A.D.2d 682, 683, 522 N.Y.S.2d 581, citing McGowan v. Smith, 52 N.Y.2d 268, 273-274, 437 N.Y.S.2d 643, 419 N.E.2d 321; Kramer v. Hotel Los Monteros S.A., 57 A.D.2d 756, 394 N.Y.S.2d 415; see also, Bramwell v. Tucker, 107 A.D.2d 731, 732, 484 N.Y.S.2d 92; Ditchik v. Baines, 665 F.Supp. 350, 351).

Furthermore, there is no evidence that the defendant transacts business in New York within the meaning of CPLR 302(a)(1). In Ziperman v. Frontier Hotel of Los Vegas, 50 A.D.2d 581, 374 N.Y.S.2d 697, this court held that a defendant's solicitation of New York customers by the listing of a telephone number in a New York telephone directory does not constitute the "transaction of business" pursuant to CPLR 302(a)(1). The only distinguishing feature in the present case is that the telephone listing for the defendant included a New York, rather than a foreign address. This distinction is, in our opinion, immaterial to the issue whether the defendant in fact transacted business in New York.

Even...