Paterno v. Laser Spine Institute
| Decision Date | 20 November 2014 |
| Citation | 23 N.E.3d 988,24 N.Y.3d 370,2014 N.Y. Slip Op. 08054,998 N.Y.S.2d 720 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | Frank PATERNO, Appellant, v. LASER SPINE INSTITUTE et al., Respondents. |
Law Offices of Timothy G. Griffin, Bronxville (Timothy G. Griffin of counsel), for appellant.
DeCorato Cohen Sheehan & Federico, LLP, New York City (Joshua R. Cohen and Amanda L. Tate of counsel), for respondents.
Plaintiff Frank Paterno appeals from the dismissal for lack of personal jurisdiction of his medical malpractice action against non-domiciliary defendants Laser Spine Institute (LSI) and various LSI professionals. We conclude that defendants' contacts with New York are insufficient to confer long-arm jurisdiction under CPLR 302(a)(1). We further reject plaintiff's alternative basis for personal jurisdiction under CPLR 302(a)(3) because he suffered his injuries outside the State. Therefore, we affirm.
In May 2008, plaintiff was suffering from severe back pain. While on the home page of a well-known Internet service provider plaintiff discovered an advertisement for LSI, a surgical facility specializing in spine surgery, with its home facility and principal place of business in Tampa, Florida. Plaintiff clicked on the LSI advertisement, and viewed a five-minute video presentation of a testimonial from a former LSI patient and professional golfer, extolling LSI's medical services. The advertisement appeared to hold out the promise of relief for plaintiff's back problems so he communicated with LSI by telephone and Internet to inquire about possible surgical procedures to alleviate his pain. These would be the first of plaintiff's several contacts with LSI, which led to his eventual decision to undergo surgical procedures by LSI medical professionals in Florida. Those surgeries are the underlying basis for plaintiff's action against defendants.
After his initial inquiries in May 2008, plaintiff sought a medical assessment of his condition by LSI, and sent to LSI's Florida facility certain magnetic resonance imaging (MRI) films of his back. LSI then sent plaintiff an email letter, describing preliminary surgical treatment recommendations and orders, based on its doctors' professional evaluation of the MRI. The letter made clear the recommendations and suggested procedures were not final, and that plaintiff would be “evaluated by [LSI] surgeons upon arrival so therefore these orders will be subject to change by the surgeon while in consultation.”
According to plaintiff, on May 30, 2008, the same day that he received the letter, LSI informed him that there had been a cancellation, and plaintiff could take the open spot and have the surgery performed at a significant discount due to the short notice. LSI offered a June 9, 2008 surgery date.
In preparation for his surgery plaintiff had several additional email contacts with LSI from June 2nd through June 6th. These communications were intended to address registration and payment issues, and to generally facilitate plaintiff's arrival at LSI's Florida facility. For example, plaintiff sent his completed registration and private insurance forms, and engaged in correspondence with LSI related to payment arrangements to be made upon his arrival in Florida. LSI sent plaintiff a list of hotels in Tampa that offered discounted rates to LSI patients.
Apart from these administrative matters, plaintiff forwarded to LSI his blood work, which had been completed in New York. He also attempted to schedule a conference call between his New York-based doctor, Dr. Dimatteo, and LSI defendant Dr. Perry. After plaintiff was unable to reach Dr. Perry, an LSI doctor called Dr. Dimatteo the following day and briefly discussed plaintiff's scheduled surgery.
On June 6th, plaintiff traveled from New York to Tampa, Florida, and on June 9th, he underwent surgery at the LSI facility, performed by defendant LSI surgeon Dr. Kevin Scott. Plaintiff experienced extreme pain following the surgery and complained to LSI staff who advised him that this was due to the procedure and could last for two weeks. Plaintiff underwent a second surgical procedure at LSI on June 11th, this time performed by defendant LSI surgeon Dr. Vernon Morris. He again experienced severe pain after the surgery.
For two weeks following his return to New York on June 12th, plaintiff contacted the LSI physicians on a daily basis to discuss his medical status, and to complain about his postoperative pain. LSI doctors and staff addressed his request for pain medication by calling prescriptions into local pharmacies in plaintiff's home city, which he then filled.
In mid-July, plaintiff was still in severe pain and went to New York-based physicians to discuss his medical status and the results of the out-of-state surgeries. He underwent an MRI, which according to one of his New York-based doctors revealed the same disc herniations the doctor had observed prior to the surgery. In response to plaintiff's request for consultation with LSI, LSI physicians held a conference call with this New York-based doctor to discuss plaintiff's condition.
After further telephone and email communications with LSI, and after plaintiff demanded that LSI address his condition, plaintiff returned to Florida on August 6th where he underwent a third surgery, this time performed by defendant LSI surgeon Dr. Craig Wolff. As before, plaintiff was in severe pain following the surgery, and as before only days after the procedure he returned to his home in New York State.
For approximately the next three months, until October 31, 2008, plaintiff claims to have communicated daily with LSI staff via text messages, emails and telephone calls. He also spoke directly by telephone with defendant Dr. Wolff, regarding his back pain and headaches. Dr. Wolff discussed ways to alleviate the pain, and ordered an MRI which was performed in New York. Dr. Wolff also spoke by telephone with another of plaintiff's New York-based doctors concerning plaintiff's condition. When plaintiff's condition did not improve, Dr. Wolff told him he could return to LSI for another surgical procedure to address what appeared to be fluid accumulation from a spinal dura leak. LSI offered to fly plaintiff to Florida at LSI's expense.
After several consultations with New York-based doctors, plaintiff underwent another surgery, but this time in New York, performed by a New York-based doctor not connected with LSI.
Plaintiff thereafter commenced this medical malpractice action in New York against LSI and several LSI doctors, including the surgeons who operated on him. Defendants moved to dismiss for lack of personal jurisdiction pursuant to CPLR 3211(a)(8), and Supreme Court granted the motion.
The Appellate Division affirmed in a split decision, concluding that the court lacked personal jurisdiction over LSI and the doctors because they were not transacting business in New York within the meaning of CPLR 302(a)(1), and there was no personal jurisdiction under CPLR 302(a)(3) because plaintiff's injury did not occur in New York (112 A.D.3d 34, 973 N.Y.S.2d 681 [2013] ). The two dissenting justices concluded that the contacts demonstrated the “purposeful creation of a continuing relationship” sufficient to establish jurisdiction over defendants under CPLR 302(a)(1) (id. at 56, 973 N.Y.S.2d 681 ).
Plaintiff argues that New York courts have personal jurisdiction over defendants under CPLR 302(a)(1), based on their purposeful activity, as demonstrated by LSI's active solicitation of plaintiff to undergo surgery, and defendants' pre- and post-surgery contacts related to plaintiff's medical treatment, including emails, letters and the exchange of documents. Plaintiff also contends New York courts have personal jurisdiction over defendants under CPLR 302(a)(3) because defendants committed a tortious act outside New York State which caused injury to him within New York.
Defendants argue that their contacts with plaintiff merely responded to his inquiries or constituted follow-up to the surgical procedures, and do not constitute transacting business in New York State within the meaning of the CPLR so as to confer personal jurisdiction over the defendants. Furthermore, they contend that because plaintiff's injuries occurred in Florida, his reliance on CPLR 302(a)(3) as an alternative basis of jurisdiction is without merit. They also argue that plaintiff failed to effectuate proper service of process over all the LSI defendants.
CPLR 302(a)(1) provides in relevant part:
Whether a non-domiciliary is transacting business within the meaning of CPLR 302(a)(1) is a fact based determination, and requires a finding that the non-domiciliary's activities were purposeful and established “a substantial relationship between the transaction and the claim asserted” ( Fischbarg v. Doucet, 9 N.Y.3d 375, 380, 849 N.Y.S.2d 501, 880 N.E.2d 22 [2007], citing Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d 65, 71, 818 N.Y.S.2d 164, 850 N.E.2d 1140 [2006] ). Purposeful activities are volitional acts by which the non-domiciliary “ ‘avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws' ” (Fischbarg, 9 N.Y.3d at 380, 849 N.Y.S.2d 501, 880 N.E.2d 22, quoting McKee Elec. Co. v. Rauland–Borg Corp., 20 N.Y.2d 377, 382, 283 N.Y.S.2d 34, 229 N.E.2d 604 [1967], and citing Ford v. Unity Hosp., 32 N.Y.2d 464, 471, 346 N.Y.S.2d 238, 299 N.E.2d 659 [1973] ). More than limited contacts are required for purposeful activities sufficient to establish that the non-domiciliary transacted business in New...
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