Ingraham v. Carroll

• Decision Date: 21 October 1997
• Citation: 90 N.Y.2d 592,687 N.E.2d 1293,665 N.Y.S.2d 10
• Parties: , 687 N.E.2d 1293, 1997 N.Y. Slip Op. 8599 Richard H. INGRAHAM, Individually and as Executor of the Estate of Alison S. Ingraham, Deceased, Appellant, v. James CARROLL et al., Defendants, and Frederick Loy, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 10

665 N.Y.S.2d 10

90 N.Y.2d 592, 687 N.E.2d 1293, 1997

N.Y. Slip Op. 8599

Richard H. INGRAHAM, Individually and as Executor of the Estate of Alison S. Ingraham, Deceased, Appellant, v. James CARROLL et al., Defendants and Frederick Loy, Respondent.

Court of Appeals of New York.

Oct. 21, 1997.

Beck, Salvi, Gewurz & Strauss, P.L.L.C., Garden City (Leland Stuart Beck, of counsel), for appellant.

Donohue, Sabo, Varley & Armstrong, P.C., Albany (Kathleen L. Werther, of counsel), for respondent.

OPINION OF THE COURT

LEVINE, Judge.

Appellant commenced this wrongful death action seeking damages related to the injuries sustained by his late wife, Alison S. Ingraham, allegedly as a result of the negligence and medical malpractice of respondent Dr. Frederick Loy and two other physicians, Dr. James Carroll and Dr. Jon Porter. The uncontroverted facts, as set forth in the parties' papers, are as follows.

Respondent Loy is a vascular surgeon who practices and resides in Vermont. Although respondent also is licensed to practice medicine in New York, he does not maintain an office in New York or solicit business in this State. His private medical practice is limited to Vermont, where he treats patients in Bennington and performs surgery at South Western Vermont Medical Center, also located in Bennington.

Appellant's decedent was a patient of Community Health Plan (hereinafter CHP), a New York HMO with a clinic located in Hoosick Falls, New York, where decedent was under the care of CHP physicians Carroll and Porter. On several occasions, decedent's CHP physicians referred her to respondent for a consultation in Bennington, which is close to the New York State border. Respondent is not under contract with CHP for consultation services. However, respondent frequently sees CHP patients on an ad hoc/fee-for-service basis, on referral from both the CHP Hoosick Falls facility and a CHP facility located in Bennington.

Pursuant to a written referral by her New York physicians, decedent first traveled to Vermont to see respondent on March 7, 1994, for consultation regarding decedent's complaint of a nodule in her right breast. Decedent was again referred to respondent and, on August 17, 1994, was seen by him in response to her CHP physicians' concern about a nodule in her left armpit. After each examination, respondent sent instructions to decedent's CHP physicians to withhold any invasive procedure to ascertain the nature of the nodule, but merely to observe it periodically. The third time that respondent saw decedent, on March 14, 1995, it was again with regard to the lump in decedent's left armpit. At this point, respondent made arrangements to remove the nodule. He subsequently performed that surgery at South Western Vermont Medical Center and discovered that the nodule contained metastatic malignant melanoma cells.

The gravamen of appellant's complaint against respondent is that he negligently failed to recognize the serious nature of his wife's condition at an earlier stage and, as a result, made recommendations to her primary physicians against procedures that would have led to an earlier diagnosis of the cancer while it was still in a treatable stage. Because of this allegedly tortious diagnosis and recommendation, appellant asserts that decedent was injured in New York when her untreated cancer spread there and eventually caused her death.

At Supreme Court, appellant moved to strike respondent's affirmative defense of lack of personal jurisdiction, relying exclusively on the long-arm jurisdiction provisions of CPLR 302(a)(3). ¹ Supreme Court granted respondent's motion for dismissal for lack of personal jurisdiction on the ground that decedent's injury occurred in Vermont, rather than in New York, as required under CPLR 302(a)(3). The Appellate Division affirmed (235 A.D.2d 778, 652 N.Y.S.2d 361 ), agreeing with Supreme Court that appellant had failed to establish that respondent's allegedly tortious act outside of the State resulted in injury within the State. We granted appellant leave to appeal, and now affirm for reasons other than those relied upon below.

CPLR 302(a)(3), the provision of New York's long-arm statute at issue here, permits a court to exercise personal jurisdiction over a nondomiciliary who:

"3. commits a tortious act without the state causing injury to person or property within the state * * * 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 " (CPLR 302[a][3] [emphasis supplied] ).

Under this provision, the appellant must show both that an injury occurred "within the state," and that the elements of either clause (i) or (ii) have been satisfied. It is appropriate to point out that establishment of long-arm jurisdiction in connection with a New York injury under either clause does not implicate constitutional due process concerns. "[T]he subdivision [302(a)(3) ] was not designed to go to the full limits of permissible jurisdiction. The limitations contained in subparagraphs (i) and (ii) were deliberately inserted to keep the provision 'well within constitutional bounds' " (1 Weinstein-Korn-Miller, N.Y. Civ Prac p 302.14, quoting 12th Ann Report of N.Y. Jud Conf, at 341; see also, McGowan v. Smith, 52 N.Y.2d 268, 274, 437 N.Y.S.2d 643, 419 N.E.2d 321). Thus, in this case, we are bound by a limitation more stringent than any constitutional requirement--the specific requirements of CPLR 302(a)(3).

Assuming, without deciding, that the alleged tortious conduct in Vermont caused injury within New York, the issue before us is whether appellant has successfully demonstrated that either the first or second jurisdictional subset of CPLR 302(a)(3) has been met. Because we conclude that appellant has failed to satisfy the requirements of either clause (i) or (ii) of CPLR 302(a)(3), we hold that the complaint against respondent was properly dismissed.

Subdivision (a)(3)(i) requires the party seeking to obtain jurisdiction to demonstrate that the tortfeasor "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 " (CPLR 302[a][3][i] [emphasis supplied] ). By this provision, the Legislature limited CPLR 302(a)(3)(i) jurisdiction to extend only to those "who have sufficient contacts with this state so that it is not unfair to require them to answer in this state for injuries they cause here by acts done elsewhere" (12th Ann Report of N.Y. Jud. Conf., at 343). Thus, CPLR 302(a)(3)(i) necessitates some ongoing activity within New York State (see, id. [stating that "a regular course of conduct in the state is required" (emphasis supplied) ]; see also, Allen v. Canadian Gen. Elec. Co., 65 A.D.2d 39, 40, 410 N.Y.S.2d 707 [analyzing CPLR 302(a)(3)(i) in terms of activity conducted within New York State], aff'd for reasons stated 50 N.Y.2d 935, 431 N.Y.S.2d 526, 409 N.E.2d 998). Although clause (i) does not require the quantity of New York contacts that is necessary to obtain general jurisdiction under the "doing business" test of CPLR 301 (see, id., at 343, n.; see also, Siegel, N.Y. Prac. § 88, at 136 [2d ed] ), it does require something more than the "one shot" single business transaction described in CPLR 302(a)(1) (12th Ann. Report of N.Y. Jud. Conf., at 343).

Here, appellant has made no showing that respondent "regularly does or solicits business * * * in the state " or "engages in any other persistent course of conduct * * * in the state " or "derives substantial revenue from goods used or consumed or services rendered[ ] in the state " (CPLR 302[a][3][i] [emphasis supplied] ). Indeed, it is undisputed that respondent practices only in Vermont. He neither treated decedent in New York, nor contracted to provide services in New York or solicited business in New York. Thus, the requirements of clause (i) have not been met.

A much closer question is presented under clause (ii) of CPLR 302(a)(3). This provision requires the satisfaction of two prongs. To establish jurisdiction, a plaintiff must demonstrate that the nonresident tortfeasor: (1) "expects or should reasonably expect the act to have consequences in the state"; and (2) "derives substantial revenue from interstate or international commerce" (CPLR 302[a][3][ii] ). The first prong is intended to ensure some link between a defendant and New York State to make it reasonable to require a defendant to come to New York to answer for tortious conduct committed elsewhere. The nonresident tortfeasor must expect, or have reason to expect, that his or her tortious activity in another State will have direct consequences in New York (see, Fantis Foods v. Standard Importing Co., 49 N.Y.2d 317, 326, 425 N.Y.S.2d 783, 402 N.E.2d 122; Sybron Corp. v. Wetzel, 46 N.Y.2d 197, 206, 413 N.Y.S.2d 127, 385 N.E.2d 1055; cf., Martinez v. American Std., 91 A.D.2d 652, 653, 457 N.Y.S.2d 97, aff'd for reasons stated 60 N.Y.2d 873, 470 N.Y.S.2d 367, 458 N.E.2d 826).

The first prong of CPLR 302(a)(3)(ii) has been satisfied. Respondent concededly was aware that decedent, a New York resident, was receiving treatment from New York State primary physicians based, at least in part, on his recommendations. He contacted decedent's physicians directly, by mail and via telephone, concerning the treatment she was to receive in New York. Significantly, respondent acknowledged that his expectation, when making recommendations, is that the CHP doctor in New York would follow his advice. Hence, respondent, in essence, has admitted that his allegedly tortious action (a misdiagnosis and improper recommendation) would have consequences within New...