Sheldon v. Kimberly-Clark Corp.
| Decision Date | 31 December 1984 |
| Docket Number | KIMBERLY-CLARK |
| Citation | 482 N.Y.S.2d 867,105 A.D.2d 273 |
| Parties | Floyd SHELDON, Respondent-Appellant, v.CORPORATION, et al., Defendants; Peter J. Schweitzer, Inc., Respondent; Darwin E. Smith, et al., Appellants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Lipkowitz & Plaut, New York City (Peter Jason, Seth Cummins and Daniel Friedman, New York City, of counsel), for appellants-respondents.
Meiselman, Farber, Stella & Eberz, P.C., Poughkeepsie (Dennis Gerard Ellis, Poughkeepsie, of counsel), for respondent-appellant.
White & Case, New York City (Dwight A. Healy and Robert J. Morrow, New York City, of counsel), for respondent.
Before BOYERS, J.P., and RUBIN, LAWRENCE and EIBER, JJ.
Plaintiff suffered a double arm amputation on July 30, 1980, as a result of those limbs being caught between two steam-heated rollers on a machine which he operated as an employee of the defendant Kimberly-Clark Corporation (hereinafter Kimberly-Clark) at its Ancram Mill in New York. According to plaintiff, the rollers on the machine were unguarded, and were the cause of similar accidents both prior and subsequent to his injury. Plaintiff brought suit against many corporate defendants including Kimberly-Clark, and two separate entities which were both entitled Peter J. Schweitzer, Inc. One of these was merged into the Kimberly-Clark Corporation in 1958. The other was incorporated a short time later as a wholly-owned subsidiary of Kimberly-Clark. Also named as party defendants, in their individual capacities, were defendants Smith, Hibbert, Ernest, Jones and Gade, who were senior officers of Kimberly-Clark. The many theories of the action include negligence, strict liability, breach of warranty, breach of contract, fraud, and in regard to the individual defendant officers, the establishment of a corporate policy of placing productivity above worker safety.
None of the five defendant officers live or work in New York. It is conceded that the only contacts between these individuals and the State of New York is through their status as senior officers of Kimberly-Clark. That corporation regularly does business in New York. Service of process on these five individuals was made outside of this State.
Kimberly-Clark, Peter J. Schweitzer, Inc., the officers and another, moved to dismiss the complaint pursuant to CPLR 3211 (subd. par. 8) alleging lack of in personam jurisdiction. Special Term denied the portion of the motion which was to dismiss as against the officers without prejudice to renew following pretrial discovery and to the assertion of the jurisdictional defense in their answers. Plaintiff was given an opportunity to discover facts which would justify the exercise of "long-arm" jurisdiction. We now modify the order of Special Term so as to grant that branch of the motion which was to dismiss the action as against these five defendants.
Plaintiff had already engaged in a significant amount of discovery prior to the time that the motion to dismiss was made. Before further discovery was warranted, plaintiff had the burden of coming forward with some form of tangible evidence which would constitute a "sufficient start" in showing that jurisdiction could exist, and that the contention that there was a basis for the exercise of "long-arm" jurisdiction was not frivolous (see Peterson v. Spartan Inds., 33 N.Y.2d 463, 467, 354 N.Y.S.2d 905, 310 N.E.2d 513; Cato Show Print. Co. v. Lee, 84 A.D.2d 947, 446 N.Y.S.2d 710). Plaintiff has failed to meet this burden.
Plaintiff attempts to establish jurisdiction under both clauses (i) and (ii) of paragraph 3 of subdivision (a) of CPLR 302. Both of these clauses require that the nondomiciliary defendant have committed a "tortious act" as a prerequisite to the existence of a basis for the exercise of jurisdiction over him. The tortious act which plaintiff alleges that the officers committed was to formulate a corporate policy emphasizing productivity and disregarding worker safety. As to facts tending to prove that these defendants did indeed formulate such a corporate policy, plaintiff's complaint and his attorney's affirmations consist of only bare conclusory allegations. Such allegations are not enough to constitute the "sufficient start" necessary to merit further discovery (see Peterson v. Spartan Inds., supra, 33 N.Y.2d p. 467, 354 N.Y.S.2d 905, 310 N.E.2d 513).
In any event, assuming, without deciding, that plaintiff's theory of liability asserted against the defendant officers alleges a "tortious act" which is cognizable under the laws of this State, we are of the opinion that in personam jurisdiction could not...
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