Wcvawck-Doe v. Boys & Girls Club of Greenwich, Inc.

• Decision Date: 19 April 2023
• Docket Number: 2021-06641,Westchester County Index No. 63627/20
• Parties: WCVAWCK-Doe, appellant, v. Boys & Girls Club of Greenwich, Inc., respondent.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 02026

WCVAWCK-Doe, appellant,
v.
Boys & Girls Club of Greenwich, Inc., respondent.

No. 2021-06641, Westchester County Index No. 63627/20

Supreme Court of New York, Second Department

April 19, 2023

Cascione, Purcigliotti & Galluzzi, P.C., Eastchester, NY (Thomas G. Cascione of counsel), for appellant.

Robinson & Cole LLP, New York, NY (Jeffrey White and Janet Kljyan of counsel), for respondent.

MARK C. DILLON, J.P. FRANCESCA E. CONNOLLY LINDA CHRISTOPHER BARRY E. WARHIT, JJ.

OPINION & ORDER

CHRISTOPHER, J.

APPEAL by the plaintiff, in an action, inter alia, to recover damages for negligent supervision, from an order of the Supreme Court, Nassau County (Part CVA-R) (Steven M. Jaeger, J.), dated August 16, 2021. The order granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.

This appeal presents the opportunity to consider the analysis to be employed when determining whether a plaintiff has made a prima facie showing that personal jurisdiction over a nondomiciliary exists pursuant to CPLR 302(a)(2), the section of the long-arm statute permitting the exercise of jurisdiction over a nondomiciliary who commits a tortious act within the state. Upon determining that the plaintiff demonstrated, prima facie, that the defendant committed a tortious act within New York in accordance with CPLR 302(a)(2), we then consider, based on the arguments herein, whether minimum contacts required under federal constitutional due process are satisfied. For the reasons that follow, we find that the basis for exercising personal jurisdiction herein pursuant to CPLR 302(a)(2) comports with federal constitutional due process based on the commission of a tortious act within the state.

Factual and Procedural Background

In October 2020, the plaintiff, a resident of Connecticut, commenced this action alleging, inter alia, negligent supervision and negligent infliction of emotional distress, pursuant to the revival statute enacted as part of New York's Child Victims Act (see CPLR 214-g), against the defendant, Boys & Girls Club of Greenwich, Inc. (hereinafter the Club), to recover damages for injuries he allegedly sustained as a result of sexual abuse committed against him by another Club youth while the plaintiff was a member of the Club. The Club is a Connecticut not-for-profit corporation with its principal place of business in Greenwich. As part of its summer camp program, the Club supervised field trips, including trips to Yankees and/or Mets games and Rye Playland (hereinafter the amusement park) in New York.

The plaintiff alleges that in 1975 to 1976, when he was 13 or 14 years old, he was sexually and physically abused on 9 or 10 occasions by another member of the Club, mostly in facilities owned or occupied by the Club, but also on one occasion in New York. The plaintiff alleges that the one instance of sexual abuse that occurred in New York was during a Club- supervised field trip to the amusement park. He alleges, inter alia, that the Club's failure to properly supervise its members during this field trip resulted in another member of the club sexually abusing him while at the amusement park.

The Club moved pursuant to CPLR 3211(a) to dismiss the complaint, inter alia, for lack of personal jurisdiction (see CPLR 3211[a][8]). In an order dated August 16, 2021, the Supreme Court granted the motion on that ground, finding CPLR 302(a)(2), New York's long-arm statute, inapplicable. The plaintiff appeals.

Discussion

Background

"Under modern jurisprudence, a court may assert general all-purpose jurisdiction or specific conduct-linked jurisdiction over a particular defendant" (Aybar v Aybar, 169 A.D.3d 137, 142-143, affd 37 N.Y.3d 274; see Daimler AG v Bauman, 571 U.S. 117, 122). "A state court may exercise general jurisdiction only when a defendant is 'essentially at home' in the State" (Ford Motor Co. v Montana Eighth Jud. Dist. Ct., ___ U.S. ___, ___, 141 S.Ct. 1017, 1024, quoting Goodyear Dunlop Tires Operations, S.A. v Brown, 564 U.S. 915, 919). General jurisdiction extends to any claim against the defendant, and "[t]hose claims need not relate to the forum State or the defendant's activity there" (Ford Motor Co. v Montana Eighth Jud. Dist. Ct., ___ U.S. at ___, 141 S.Ct. at 1024).

However, specific jurisdiction "depends on an affiliation between the forum and the underlying controversy, principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation" (Goodyear Dunlop Tires Operations, S.A. v Brown, 564 U.S. at 919 [alterations and internal quotation marks omitted]; see Aybar v Aybar, 169 A.D.3d at 143).

New York's Long-Arm Statute

Specific jurisdiction over a nondomiciliary defendant in New York is obtained through CPLR 302, the long-arm statute (see Aybar v U.S. Tires & Wheels of Queens, LLC, 211 A.D.3d 40, 48; Fanelli v Latman, 202 A.D.3d 758, 759). CPLR 302(a) provides, inter alia, that

"As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary,... who in person or through an agent

"1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or

"2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or

"3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he

"(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or

"(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce."

While our Court has had the opportunity to review specific jurisdiction under CPLR 302(a)(1) (see Aybar v U.S. Tires & Wheels of Queens, LLC, 211 A.D.3d 40), we turn our attention to consider the reach of the long-arm statute pursuant to CPLR 302(a)(2).

"The party seeking to assert personal jurisdiction bears the ultimate burden of proof to establish a basis for such jurisdiction" (Sacco v Reel-O-Matic, Inc., 183 A.D.3d 567, 568; see America/Intl. 1994 Venture v Mau, 146 A.D.3d 40, 51). "However, to successfully oppose [a CPLR 3211(a)(8) motion to dismiss for lack of personal jurisdiction], the plaintiff need only make a prima facie showing that the defendant was subject to the personal jurisdiction of the court" (America/Intl. 1994 Venture v Mau, 146 A.D.3d at 51). "The facts alleged in the complaint and affidavits in opposition to such a motion to dismiss are deemed true and construed in the light most favorable to the plaintiff, and all doubts are to be resolved in favor of the plaintiff" (Fanelli v Latman, 202 A.D.3d at 759 [internal quotation marks omitted]; see Nick v Schneider, 150 A.D.3d 1250, 1251).

Here, viewing the plaintiff's allegations in the light most favorable to him, the plaintiff demonstrated, prima facie, that the Club, a Connecticut not-for-profit corporation, committed a tortious act within the State of New York in accordance with the meaning of CPLR 302(a)(2), the subdivision of the long-arm statute at issue on this appeal. The plaintiff alleged that the Club organized a field trip for its members to the amusement park in New York, and while at the amusement park, the Club failed to properly supervise its members, resulting in the plaintiff being sexually assaulted by another member. Thus, the plaintiff has alleged that the Club committed the tortious acts of negligent supervision and negligent infliction of emotional distress while in New York. Contrary to the Club's contention, notwithstanding that a majority of the abuse alleged by the plaintiff occurred in Connecticut, personal jurisdiction can be established under CPLR 302(a)(2), with regard to the one incident alleged to have occurred in New York.

Federal Constitutional Due Process

Once it has been determined that a plaintiff has alleged facts that satisfy a basis for long-arm jurisdiction under CPLR 302, the next step in the jurisdictional analysis is to determine whether the exercise of personal jurisdiction under the long-arm statute comports with federal constitutional due process requirements (see LaMarca v Pak-Mor Mfg. Co., 95 N.Y.2d 210, 216-219; Nick v Schneider, 150 A.D.3d at 1252; Weitz v Weitz, 85 A.D.3d 1153, 1154; Opticare Acquisition Corp. v Castillo, 25 A.D.3d 238, 247). The United States Supreme Court has held that a state may exercise jurisdiction over a nondomiciliary defendant provided that it has "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice" (International Shoe Co. v Washington, 326 U.S. 310, 316 [internal quotation marks omitted]; see Rushaid v Pictet & Cie, 28 N.Y.3d 316, 331). The due process analysis is a two-part inquiry, the first part being whether the defendant has minimum contacts with the forum state (see Aybar v U.S. Tires & Wheels of Queens, LLC, 211 A.D.3d at 52-53; Opticare Acquisition Corp. v Castillo, 25 A.D.3d at 247-248). "The minimum contacts test has come to rest on whether a defendant's conduct and connection with the forum State are such that it should reasonably anticipate being haled into court there" (Rushaid v Pictet & Cie, 28 N.Y.3d at 331 [internal quotation marks omitted]; see LaMarca v Pak-Mor Mfg. Co., 95 N.Y.2d at 216). "Such minimum contacts exist where a defendant purposefully avails itself of the privilege of conducting activities within the forum State" (Rushaid v Pictet & Cie, 28 N.Y.3d at 331 [internal quotation marks omitted]), ...