Diskin v. Starck
Decision Date | 06 May 1982 |
Docket Number | No. 81 C 1613.,81 C 1613. |
Citation | 538 F. Supp. 877 |
Parties | Scott DISKIN, an Infant, by Patrick Diskin, his parent and natural guardian, and Thomas Diskin, Jr., an Infant, by Thomas Diskin, Sr., his parent and natural guardian, Patrick Diskin and Thomas Diskin, Individually, Plaintiffs, v. Herbert STARCK and Joan Starck, d/b/a Camp Navajo, Defendants. |
Court | U.S. District Court — Eastern District of New York |
Patten & Ganun by Francis G. Ganun, New York City, for plaintiffs.
Weiss, Molod, Berkowitz & Godosky, P. C. by Martin L. Weiss, New York City, for defendants.
In the summer of 1980 plaintiffs Patrick Diskin and Thomas Diskin, Sr. sent their sons, the infant plaintiffs, to Camp Navajo, a riding camp in Moretown, Vermont, owned and operated by defendants Herbert and Joan Starck. The complaint alleges that camp employees sexually assaulted and abused the infant plaintiffs during their stay, causing them severe physical and emotional harm, and breaching defendants' implied or express agreement with the parents to care for the children. All plaintiffs are domiciliaries and citizens of New York, and defendants are domiciliaries and citizens of Vermont. Pursuant to Rule 12(b), F.R. Civ.P., defendants have moved to dismiss the complaint for want of personal jurisdiction. Alternatively, they seek to change venue to the District of Vermont under 28 U.S.C. § 1404(a). For the reasons that follow, the court holds that personal jurisdiction has not been obtained over the defendants in New York.
Because this is a diversity action, personal jurisdiction must be obtained in accordance with the law of the forum state. See Arrowsmith v. United Press International, 320 F.2d 219 (2d Cir. 1963); F.R. Civ.P., Rule 4(e). The faulty quotation of New York CPLR § 302(a)(3) in plaintiffs' brief has raised doubts as to the precise statutory source of the personal jurisdiction asserted here. Accordingly, we consider three bases on which jurisdiction over the defendants might have been sought on the facts presented. These are CPLR § 302(a)(3), relating to torts committed outside the state, § 302(a)(1), relating to a claim arising from the transaction of business within the state, and § 301, which confers jurisdiction over persons found to be "doing business" within the state.
Although this section requires the occurrence of tortious conduct outside the state, its essential predicate is that the injury giving rise to the plaintiffs' claim occur within the state. See Kramer v. Hotel Los Montros, S. A., 57 A.D.2d 756, 757, 394 N.Y.S.2d 415, 416 (1st Dep't. 1977); Black v. Oberle Rentals, Inc., 55 Misc.2d 398, 400, 285 N.Y.S.2d 226, 228-29 (Sup.Ct. Onondaga Co.1967); see also Spectacular Productions, Inc. v. Radio Station WING, 272 F.Supp. 734, 736-37 (E.D.N.Y.1967).
In the present case, however, both the alleged tortious conduct and the infants' injuries occurred in Vermont. Plaintiffs cannot sustain jurisdiction under § 302(a)(3) merely by showing that as domiciliaries of this state, they suffered further damage (either economic or physical), on account of the earlier injuries sustained outside the state. See Kramer v. Hotel Los Montros, supra, 57 A.D.2d at 757, 394 N.Y. S.2d at 416; Black v. Oberle Rentals, supra, 55 Misc.2d at 400, 285 N.Y.S.2d at 228-29. Clearly, therefore, plaintiffs have not established jurisdiction over the defendants under 302(a)(3).
The next long-arm provision that possibly applies in this case, CPLR § 302(a)(1), confers jurisdiction over a nondomiciliary who "transacts business within the state or contracts anywhere to provide goods and services in the state." Plaintiffs must show, however, that their cause of action arises from "purposeful activities" of the defendants within the state. Longines-Wittnauer Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 467, 261 N.Y.S.2d 8, 26, 209 N.E.2d 68, 86 (1967). See Fontanetta v. American Board of Internal Medicine, 421 F.2d 355, 357-58 (2d Cir. 1970).
The facts on which plaintiffs rely to meet their burden under this section and § 301, discussed infra, are that defendants advertised their camp in an annual supplement to a Catholic newsweekly published in New York, sent brochures that plaintiffs requested after seeing the advertisement, contracted with them over the telephone and through the mail to accept the infant plaintiffs at Camp Navajo, and instructed the parents to bring their children to a location in new Jersey to be met by the camp bus. Even if these contentions of counsel, unsupported by affidavits from the plaintiffs are accepted as true, the aggregate of facts is insufficient to sustain jurisdiction under § 302(a)(1) or § 301.
The courts in New York consistently have held that injuries sustained while participating outside the state in recreational activities advertised and contracted for within the state, bear too remote a relationship to the advertising and contractual activity claimed to be the transaction of business in the state to warrant a conclusion that the injuries arose from the in-state activity. See Noble v. Singapore Resort Motel of Miami Beach, 21 N.Y.2d 1006, 1008, 290 N.Y.S.2d 926, 927, 238 N.E.2d 328, 329 (1968) (per curiam); Meunier v. Stebo, Inc., 38 A.D.2d 590, 591, 328 N.Y.S.2d 608, 611 (2d Dep't 1971); see also Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317, 321-22 (2d Cir. 1964). Accordingly plaintiffs cannot sustain jurisdiction over the defendants under § 302(a)(1).
To continue reading
Request your trial-
Merritt v. Shuttle, Inc.
...to traditional notions of fair play and substantial justice that it be required to defend the action [in the state.] Diskin v. Starck, 538 F.Supp. 877, 880 (E.D.N.Y.1982) (quoting Laufer v. Ostrow, 55 N.Y.2d 305, 309-10, 449 N.Y.S.2d 456, 434 N.E.2d 692 (1982)) (ellipsis in The quality and ......
-
Thorsen ex rel. Sons of Norway, Inc. v. Sons Norway
...under the “doing business” test. See Kingsepp v. Wesleyan Univ., 763 F.Supp. 22, 26 (S.D.N.Y.1991) (citing Diskin v. Starck, 538 F.Supp. 877, 880 (E.D.N.Y.1982)); Laufer v. Ostrow, 55 N.Y.2d 305, 309–10, 449 N.Y.S.2d 456, 434 N.E.2d 692 (1982). The Individual Defendants maintain that the Co......
-
Lane v. Vacation Charters, Ltd.
...supra, 679 F.Supp. at 1171; Rolls Royce Motors, Inc. v. Charles Schmitt & Co., 657 F.Supp. 1040, 1045 (S.D.N.Y.1987); Diskin v. Starck, 538 F.Supp. 877, 880 (E.D.N.Y. 1982); Surf Properties, supra, 176 N.Y. S.2d 318, 321, 151 N.E.2d 874, 876 Plaintiff makes several unpersuasive arguments fo......
-
Klinghoffer v. SNC Achille Lauro
...held that a non-resident individual doing business in New York is subject to jurisdiction pursuant to section 301. Diskin v. Starck, 538 F.Supp. 877, 880 (E.D.N.Y.1982). Apparently, no court has yet decided whether section 301 applies to unincorporated associations. However, under New York ......