Johnson v. Equitable Life Assur. Soc. of U.S.

• Decision Date: 03 December 1964
• Citation: 22 A.D.2d 138,254 N.Y.S.2d 258
• Court: New York Supreme Court — Appellate Division
• Parties: Joanne JOHNSON, as Administratrix of the Goods, Chattels and Credits of Ulysses Johnson, deceased, et al., Plaintiff, and Mary Szczerba, as Administratrix of the Goods, Chattels and Credits which were of Nick Szczerba, deceased, Plaintiff-Respondent, v. EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES et al., Defendants, and Michigan Tool Company, Defendant-Appellant. EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Third-Party Plaintiff- Respondent, v. SKIDMORE, OWNINGS & MERRILL et al., Third-Party Defendants, and Michigan Tool Company, Third-Party Defendant-Appellant.

Page 258

254 N.Y.S.2d 258

22 A.D.2d 138

Joanne JOHNSON, as Administratrix of the Goods, Chattels and Credits of Ulysses Johnson, deceased, et al., Plaintiff, and Mary Szczerba, as Administratrix of the Goods, Chattels and Credits which were of Nick Szczerba, deceased, Plaintiff-Respondent, v. EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES et

al., Defendants, and Michigan Tool Company,

Defendant-Appellant.

EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, Third-Party Plaintiff- Respondent, v. SKIDMORE, OWNINGS & MERRILL et al., Third-Party Defendants, and Michigan Tool Company, Third-Party Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Dec. 3, 1964.

John M. Aherne, New York City, of counsel (James J. Taylor, New York City, with him on the brief, Bigham, Englar, Jones & Houston, New York City, attorneys), for appellant.

Emile Z. Berman, New York City, of counsel (Leonard Sheft and Paul M. Brown, New York City, with him on the brief, Emile Z. Berman and A. Harold Frost, New York City, attorneys), for respondent.

Kramer & Dillof, New York City, for respondent Mary Szczerba, as Admx.

Before BREITEL, J. P., and VALENTE, McNALLY, STEUER and WITMER, JJ.

PER CURIAM.

Third-party defendant Michigan Tool Company appeals from an order denying its motion to dismiss the third-party complaint, in this wrongful death action, under CPLR Rules 320(b) and 3211(a)(8). The issue is whether Michigan Tool as a non-domiciliary located in the State of Michigan and not doing business in the State of New York is subject to the personal jurisdiction of the courts of this State, based on service outside the state, in an action arising from wrongful deaths occurring in this State.

The order should be affirmed.

The statute, CPLR § 302(a)(2), permits the court to exercise personal jurisdiction over the non-domiciliary third-party defendant for a tortious act committed in the state. The resultant harm allegedly caused by the defective speed reducer component manufactured by Michigan Tool and included in the assembled electric scaffold, the fall of which precipitated plaintiffs' decedents to their deaths, is, in the law of negligence, the tort. Consequently, there has been the alleged commission of a tort in the state, and therefore of a tortious act (Feathers v. McLucas, 21 A.D.2d 558, 251 N.Y.S.2d 548; Gray v. American Radiator & Std. Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761). In this respect this case does not involve the primary question presented in Singer v. Walker, 21 A.D.2d 285, 250 N.Y.S.2d 216, where the harm (tort) occurred in Connecticut, and it was necessary to isolate a tortious act, prior to the harm, as having its situs in New York.

On the other hand, because Michigan Tool did not send its product directly into this State, the problem presented in the Gray case, supra, and the Feathers case, supra, reoccurs. This distinction was noted in the Singer case, supra, with respect to the Gray case, and not passed upon only because it was not necessary to the decision in that case. Now that it is required to reach that question the Court is in accord with the views expressed in the Gray and Feathers cases, supra, subject, however, to the view that the statute should, and indeed must, be construed to limit its application within the governing constitutional restrictions.

There remains, then, only the question whether, if the statute (CPLR § 302[a]) is thus applied, constitutional limitations of due process are satisfied. They are. The component manufactured by Michigan Tool was a substantial item priced after discounts at the amount of $1,798.20. It was, along with a number of identical items, purchased by a New Jersey manufacturer for inclusion in the completed electric scaffolds sold to and to be used in the new 'glass wall' skyscrapers in New York City. This was known to Michigan Tool, which, in connection with the sale and installation of the completed products had occasion to inspect at least one of the installations in New York City, albeit not the one involved in this case. These sales and services, even if indirect because of the intervention of the New Jersey assembler, amount to substantial contacts satisfying constitutional standards (International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223). Indeed, they satisfy even the more restrictive standards incorporated into the Uniform Interstate and...