Paterno v. Institution

• Decision Date: 16 October 2013
• Citation: 112 A.D.3d 34,973 N.Y.S.2d 681,2013 N.Y. Slip Op. 06669
• Parties: Frank PATERNO, appellant, v. LASER SPINE INSTITUTE, et al., respondents.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 34

973 N.Y.S.2d 681

2013 N.Y. Slip Op. 06669

Frank PATERNO, appellant,

v.LASER SPINE INSTITUTE, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 16, 2013.

Timothy G. Griffin, Bronxville, N.Y., for appellant.

Garson DeCorato & Cohen, LLP, New York, N.Y. (Joshua R. Cohen, Amanda L. Tate, and Roslyn R. Ross of counsel), for respondents.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, L. PRISCILLA HALL, and SANDRA L. SGROI, JJ.

SGROI, J.

On this appeal we address the evolving issue of personal jurisdiction in the “Internet age.” The plaintiff, who is a resident of the State of New York, traveled out of State to undergo surgical treatment at the Florida-based Laser Spine Institute (hereinafter LSI), after first learning about the facility through an advertisement on the home page of the Internet service provider America Online (hereinafter AOL). The primary issue raised on appeal is whether LSI and several physicians who treated the plaintiff at the LSI facility in Florida are subject to long-arm jurisdiction in the medical malpractice action commenced against them by the plaintiff in New York. For the reasons that follow, we conclude that the defendants are not subject to such jurisdiction and, thus, the Supreme Court properly dismissed the complaint pursuant to CPLR 3211(a)(8).

As indicated, the plaintiff, Frank Paterno, is a resident of the State of New York. The plaintiff alleged that, in May 2008, while viewing the AOL home page, he noticed an advertisement posted by LSI. Clicking on this advertisement, the plaintiff viewed a five-minute video presentation in which a professional golfer, who was a former patient of LSI, touted the company's medical and surgical services. The plaintiff, who suffered from back pain, thereafter contacted LSI “by telephone and internet,” and took the affirmative step of sending his MRI films to the LSI facility in Florida. The plaintiff communicated with LSI through Andrew Vaught, who identified himself as “a patient advocate at LSI.”

On May 30, 2008, the plaintiff received from Vaught private insurance forms and a letter setting forth, inter alia, surgical recommendations for his condition. On that same date, the plaintiff was contacted by Vaught, who advised that if he were willing to travel to Tampa, Florida, on short notice, LSI could perform the recommended surgery on June 9, 2008, “at a significant discount.” On June 2, 2008, the plaintiff completed the insurance forms which he had received from LSI, and he again contacted Vaught to discuss payment arrangements. On June 3, 2008, the plaintiff received an email message from LSI, which contained a lengthy registration form. On this same date, the plaintiff spoke by telephone to two LSI representatives, one of whom responded to certain questions which the plaintiff had raised, and the other of whom informed him that LSI “needed [the plaintiff's]'blood work' sent [to it].” On June 4, 2008, the plaintiff allegedly was advised by his New York physician that a physician at LSI had contacted the New York physician, and that the two physicians “briefly discussed [the] upcoming surgery [to be performed at LSI].” At the same time, the plaintiff had blood work completed at his family physician's office in White Plains, New York, and these results were thereafter forwarded to LSI. On June 9, 2008, and June 11, 2008, the plaintiff underwent surgical procedures at the LSI facility in Tampa, Florida. The plaintiff returned home to New York on June 12, 2008. He subsequently contacted LSI, advising its physicians that he was suffering “constant pain” and seeking medication to alleviate this condition. In response, the LSI physicians provided prescriptions, which the plaintiff filled at local pharmacies in New York.

The plaintiff further alleged that, on July 14, 2008, at his request, a telephone conversation was held between a representative of LSI and a New York physician whom the plaintiff had consulted; that “following [this call] LSI agreed to fly me back to Tampa, free of charge, for revision surgery”; and that, “in the period from July 2008 through August 3, 2008, I had numerous telephone calls and email exchanges with [the head] of Patient Advocacy/Relations at LSI.” Notably, although the plaintiff submitted copies of various email messages transmitted between him and LSI, the record herein does not contain transcriptions of any email messages from the period between July 2008, and August 3, 2008. The plaintiff underwent his third surgical procedure at the LSI facility in Florida on August 6, 2008. He returned to New York on August 9, 2008.

The plaintiff claimed that he was still in pain after the third surgery, and that, from “August 9, 2008 to October 31, 2008, [he] communicated almost daily with [the head of Patient Advocacy/Relations at LSI] via text messages, phone calls and emails.” The record contains copies of numerous email messages transmitted between the parties during this period; most of these were initiated by the plaintiff. On August 26, 2008, in response to the plaintiff's telephone call to him, the defendant Craig Wolff “ordered an MRI to be performed at [a facility] in Tarrytown, New York.” According to the plaintiff, this MRI scan showed a collection of fluid surrounding the surgical area. The plaintiff then consulted with New York physicians and, after a telephone call between Wolff and one of the New York physicians, LSI offered “to fly [the plaintiff] to Tampa, at LSI's expense, to address the problem.”

The plaintiff did not return to the LSI facility, but did contact LSI's president on September 7, 2008, to “explain his predicament.” Between September 11, 2008, and December 2008, the plaintiff contacted LSI numerous times to discuss his case, to “get further information,” and to obtain his medical records, reports, and MRI films from LSI. Ultimately, on April 3, 2009, after further consultations with New York physicians, the plaintiff underwent additional surgery in New York by physicians, who were not affiliated with LSI, “to correct [his] condition.”

In September 2010, the plaintiff commenced this action against LSI and various doctors who were involved in the plaintiff's treatment at LSI, to recover damages for medical malpractice, negligent hiring and supervision, and lack of informed consent. In October 2010, the defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(8) on the ground of lack of personal jurisdiction. The defendants argued, inter alia, that they were not subject to personal jurisdiction in New York under any subsection of CPLR 302(a), New York's long-arm jurisdiction statute, since they neither transacted business in this State ( seeCPLR 302[a][1] ), nor “commit[ed] a tortious act without the state causing injury to person[s] within the state” (CPLR 302[a][3] ). In particular, the defendants noted that LSI was a Florida corporation; that the defendant physicians were all domiciliaries of Florida; that LSI was not licensed to do business in New York; and that none of the defendants maintained offices in New York, or had a telephone line or other point of contact in New York. Thus, the defendants argued that they neither maintained the requisite minimum contacts with New York, nor purposefully availed themselves of the benefits of conducting business in New York. Accordingly, the defendants contended that, under the totality of the circumstances, they were not subject to personal jurisdiction in New York.

In opposition, the plaintiff argued that the defendants had engaged in a course of activity sufficient to satisfy the jurisdictional requirements of CPLR 302(a)(1). More specifically, the plaintiff contended that the defendants' transaction of business in New York was evidenced by LSI's solicitation of his business through its advertisement on AOL; the “communication stream” between him and the defendants both before and after the surgical procedures; the defendants' consultation with the plaintiff's New York-based physicians; the defendants' direction that the plaintiff have blood work performed in New York; and the filling of the defendants' prescriptions for the plaintiff at New York pharmacies. The plaintiff asserted that the totality of the circumstances satisfied the “substantial relationship” test between the defendants' acts in New York and the transaction upon which his claim of injury was based. In addition, the plaintiff argued that the defendants were subject to personal jurisdiction pursuant to CPLR 302(a)(3) because they had committed tortious acts outside of New York State that caused injury to him within New York.

The Supreme Court granted the defendants' motion, concluding that they did not transact business in New York State ( seeCPLR 302[a][1] ), and that “CPLR 302(a)(3) is also inapplicable as the alleged tortious activity did not cause injury within the state within the meaning of the statute.”

We begin with the principle that, where a motion is made to dismiss a complaint for lack of personal jurisdiction, it is the plaintiff who bears the “ ‘ultimate burden of proof’ ” to prove a basis for such jurisdiction (Daniel B. Katz & Assoc. Corp. v. Midland Rushmore, LLC, 90 A.D.3d 977, 978, 937 N.Y.S.2d 236, quoting Cornely v. Dynamic HVAC Supply, LLC, 44 A.D.3d 986, 986, 845 N.Y.S.2d 797;see Fischbarg v. Doucet, 9 N.Y.3d 375, 849 N.Y.S.2d 501, 880 N.E.2d 22). Although, as noted by the dissent, such a motion can be successfully opposed by a “prima facie showing that the defendant[s] w [ere] subject to the personal jurisdiction [of the court]” (Daniel B. Katz & Assoc. Corp. v. Midland Rushmore, LLC, 90 A.D.3d at 978, 937 N.Y.S.2d 236 [internal quotation marks omitted] ), we disagree with the conclusion that the plaintiff has made such a showing.

CPLR 302(a)(1) provides as follows:

“(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts...