Professional Personnel Management Corp. v. Southwest Medical Associates, Inc.

• Decision Date: 09 June 1995
• Parties: PROFESSIONAL PERSONNEL MANAGEMENT CORP., a Corporation Doing Business As SPS Medical Search, Respondent, v. SOUTHWEST MEDICAL ASSOCIATES, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 919

628 N.Y.S.2d 919

216 A.D.2d 958

PROFESSIONAL PERSONNEL MANAGEMENT CORP., a Corporation Doing

Business As SPS Medical Search, Respondent, v. SOUTHWEST MEDICAL ASSOCIATES, INC., Appellant.

Supreme Court, Appellate Division,

Fourth Department.

June 9, 1995.

Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti by Larry Gainen, New York City, for appellant.

Corey J. Hogan and Associates by Diane Tiveron, Amherst, for respondent.

Before GREEN, J.P., and LAWTON, WESLEY, DAVIS and BOEHM, JJ.

MEMORANDUM:

Plaintiff, a New York personnel recruiting corporation, commenced this action against defendant, a company of medical providers located in Las Vegas, Nevada, to recover damages arising out of the alleged breach of the parties' contract whereby defendant agreed to compensate plaintiff for recruiting physicians. Plaintiff initially contacted defendant in June 1991 by telephone. The parties negotiated an agreement by telephone and subsequently entered into a written contract that was sent by plaintiff from New York to Nevada, where it was signed by defendant. Subsequently, written addenda to the contract were added in 1992 and 1993, which were also signed by defendant in Nevada. The physicians recruited by plaintiff were all recruited outside of New York. Defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(8), asserting lack of jurisdiction. Supreme Court denied defendant's motion. We reverse.

Defendant's minimal contacts with New York are not sufficient to constitute the purposeful activity required for long-arm personal jurisdiction pursuant to CPLR 302(a)(1). Interstate negotiations by telephone, facsimile or mail are insufficient to impose personal jurisdiction in New York upon a non-resident defendant (Glassman v. Hyder, 23 N.Y.2d 354, 363, 296 N.Y.S.2d 783, 244 N.E.2d 259; Concrete Pipe & Prods. Corp. v. Modern Bldg. Materials, 213 A.D.2d 1023, 624 N.Y.S.2d 496; Success Mktg. Elecs. v. Titan Sec., 204 A.D.2d 711, 712, 612 N.Y.S.2d 451; Paradise Prods. Corp. v. Allmark Equip. Co., 138 A.D.2d 470, 471-472, 526 N.Y.S.2d 119; J.E.T. Adv. Assocs. v. Lawn King, 84 A.D.2d 744, 443 N.Y.S.2d 745). Further, "plaintiff's own activities in New York, on behalf of defendant, cannot be relied on to establish the presence of the defendant in this State" (J.E.T. Adv. Assocs. v. Lawn King, supra, at 745, 443 N.Y.S.2d 745; see, Success Mktg. Elecs. v. Titan Sec., supra, at 712, 612 N.Y.S.2d 451). "Since [plaintiff's] cause of action did not arise out of defendant's activities within the State, jurisdiction may not be predicated upon any of the provisions found in CPLR 302" (Sheldon Estates v. Perkins Pancake House, 48 A.D.2d 936, 937, 369 N.Y.S.2d 806).

Plaintiff's contention that defendant is subject to personal jurisdiction because it was plaintiff's agent is without merit. A mere agency...