Chamberlain v. Peak

• Decision Date: 24 October 1991
• Citation: 176 A.D.2d 1109,575 N.Y.S.2d 410
• Parties: Leo B. CHAMBERLAIN, Individually and as Parent and Natural Guardian of Mary H. Chamberlain, an Infant, Appellant, v. Jiminy PEAK, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 410

575 N.Y.S.2d 410

176 A.D.2d 1109

Leo B. CHAMBERLAIN, Individually and as Parent and Natural Guardian of Mary H. Chamberlain, an Infant, Appellant, v. Jiminy PEAK, Respondent.

Supreme Court, Appellate Division Third Department.

Oct. 24, 1991.

Morton D. Shulman (Robert G. Randall Jr., of counsel), Averill Park, for appellant.

Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander (Margaret Comard Lynch, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and MIKOLL, YESAWICH and MERCURE, JJ.

MAHONEY, Presiding Justice.

Appeal from an order of the Supreme Court (Travers, J.), entered December 6, 1990 in Rensselaer County, which granted defendant's cross motion to dismiss the complaint for lack of personal jurisdiction.

In December 1983, plaintiff's infant daughter, Mary H. Chamberlain, a New York resident, sustained personal injuries while skiing at a resort owned by defendant and located in Massachusetts. Plaintiff commenced this action by service of a summons and complaint in July 1987. Defendant, a foreign corporation, answered asserting, inter alia, the defense of lack of personal jurisdiction. In January 1988, plaintiff moved pursuant to CPLR 3211 to dismiss certain of defendant's affirmative defenses, including the jurisdictional defense, and defendant cross-moved to dismiss the complaint for lack of personal jurisdiction. Supreme Court granted plaintiff's motion and denied defendant's cross motion. Upon appeal this court modified Supreme Court's order by reversing the grant of plaintiff's motion and the denial of defendant's cross motion, 155 A.D.2d 768, 547 N.Y.S.2d 706, finding that defendant's sales and promotional activities within New York did not support long-arm jurisdiction pursuant to CPLR 302(a)(1), and remitted the matter to Supreme Court for a hearing pursuant to CPLR 3211(c) on the question of whether defendant's activities in this State constituted "doing business" such that personal jurisdiction could be asserted pursuant to CPLR 301 (155 A.D.2d 768, 547 N.Y.S.2d 706). Following hearings, Supreme Court granted defendant's cross motion to dismiss plaintiff's complaint finding that defendant did not possess sufficient contacts with this State such that personal jurisdiction could be asserted. This appeal by plaintiff ensued.

We affirm. Pursuant to CPLR 301, a New York court may assert jurisdiction over a foreign corporation where it carries out a "continuous and systematic course" of conduct warranting a finding of "presence" within the State (Laufer v. Ostrow, 55 N.Y.2d 305, 309-310, 449 N.Y.S.2d 456, 434 N.E.2d 692). The foreign corporation's presence must be "with a fair measure of permanence and continuity" (Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915; see, Laufer v. Ostrow, supra, 55 N.Y.2d at 310, 449 N.Y.S.2d 456, 434 N.E.2d 692) and solicitation of business alone will not suffice to establish that presence (see, Laufer v. Ostrow, supra, at 310, 449 N.Y.S.2d 456, 434 N.E.2d 692). This "solicitation-plus" standard requires that there be activities of substance in addition to...