Evans v. Planned Parenthood of Broome County, Inc.
| Decision Date | 14 February 1974 |
| Citation | 43 A.D.2d 996,352 N.Y.S.2d 257 |
| Parties | Earl EVANS et al., Respondents, v. PLANNED PARENTHOOD OF BROOME COUNTY, INC., et al., Defendants, and G. D. Searle and Company, Appellant. |
| Court | New York Supreme Court — Appellate Division |
John J. Tullman, New York City (Arthur N. Seiff, New York City, of counsel), for respondents.
Bower & Gardner, New York City (Thomas R. Newman, New York City, of counsel), for appellant.
Before STALEY, J.P., and GREENBLOTT, COOKE, SWEENEY and KANE, JJ.
Appeal from an order of the Supreme Court at an Adjourned Special Term, entered April 20, 1973 in Broome County, which denied the motion of defendant G. D. Searle and Company to dismiss the complaint as to it on the ground of lack of in personam jurisdiction.
This is an action based on negligence and breach of warranty brought by the plaintiff to recover damages for personal injuries allegedly sustained due to the ingestion of Enovid, an oral contraceptive pill manufactured by the defendant. The defendant moved for an order pursuant to CPLR 3211 (subd. (a), par. 8) dismissing the complaint as to it on the ground of lack of in personam jurisdiction. Plaintiffs oppose the motion on the jurisdictional basis of New York's 'long-arm' statute, CPLR 302 (subd. (a), par. 3) which reads:
As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nondomiciliary, or his executor or administrator, who in person or through an agent:
3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.
Special Term ordered a hearing to determine whether the defendant, a Delaware corporation with its principal place of business in Illinois, either regularly has business contacts within New York or should have foreseen the consequences of its acts in this State and derives substantial revenue from interstate or international commerce.
Pursuant to discovery procedures, it was revealed that defendant's New York pharmaceutical sales in 1970--1971 were $4,299,255. Special Term found that defendant engaged in a persistant course of conduct sufficient to justify jurisdiction under CPLR 302 (subd. (a), par. 3(i)) and denied its motion to dismiss.
On this appeal, defendant does not challenge any of the findings by the trial court, but alleges for the first time that plaintiff was required to prove prima facie at the hearing that a tortious act was committed by defendant without the State. We do not agree. In our view, there is no requirement...
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Reger v. National Ass'n of Bedding Mfrs. Group Ins. Trust Fund
...hearing whether the alleged act was tortious, which is a question of ultimate liability to await trial (Evans v. Planned Parenthood, 43 A.D.2d 996, 352 N.Y.S.2d 257; 1 Weinstein-Korn-Miller, N.Y. Civil Prac., 302.09). At bar, no jurisdictional hearing is being directed (N.6, Supra), and the......
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...the complaint must "adequately frame a cause of action in tort arising from those acts." Evans v. Planned Parenthood of Broome County, Inc., 43 A.D.2d 996, 997, 352 N.Y.S.2d 257, 259 (3d Dep't 1974). The plaintiff alleges that this provision subjects Renaldo and Ogle to personal jurisdictio......
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...defendant committed within or without the state a specific act which plaintiffs claim to be tortious. Evans v. Planned Parenthood Etc., 43 A.D.2d 996, 352 N.Y.S.2d 257 (3d Dept.1974). Generally, plaintiffs' complaint does not allege with any particularity facts which would support personal ......