Nadraus v Fernwood Hotel & Resort

[*1] Nadraus v Fernwood Hotel & Resort 2006 NY Slip Op 50570(U) [11 Misc 3d 1075(A)] Decided on January 30, 2006 Supreme Court, Suffolk County Loughlin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 30, 2006
Supreme Court, Suffolk County

Steven Nadraus, an infant younger than the age of fourteen, by his father and natural guardian, RICHARD NADRAUS, and RICHARD NADRAUS individually, Plaintiffs,

against

Fernwood Hotel and Resort, Defendant.



05-14792



SWATI P. MANTIONE, ESQ.

Attorney for Plaintiffs

12 Thadford Street

East Northport, NY 11731

O'CONNOR, McGUINNESS, et al

Attorneys for Defendant

One Barker Avenue, Suite 675

White Plains, NY 10601-1517

Daniel J. Loughlin, J.

ORDERED, that the motion by defendant for an order dismissing the complaint is determined as follows.

This is an action to recover damages for personal injuries allegedly sustained by the infant [*2]plaintiff while visiting the defendant Fernwood Hotel and Resort in Pennsylvania. The plaintiff Richard Nadraus asserts that he contacted the defendant by phone to make a reservation after seeing an advertisement in Newsday. The defendant moves to dismiss on the grounds of lack of personal jurisdiction. The defendant submits an affidavit from its general counsel who asserts that the hotel is owned by Ha Ra Corporation which is incorporated in Pennsylvania and does not do business in New York.

A foreign corporation is amenable to suit in New York courts under CPLR 301 if it has engaged in such a continuous and systematic course of doing business here that a finding of its presence in this jurisdiction is warranted (see Landoil Resources Corp v Alexander & Alexander Services, 77 NY2d 28, 33; Laufer v Ostrow, 55 NY2d 305, 309-310). Here, the defendant asserts that it is a Pennsylvania corporation and has no offices or employees in New York. In opposition, the plaintiff contends that the defendant does business in New York by advertising in newspapers and radio, and by accepting reservations through the telephone and an internet website. However, the solicitation of business alone is insufficient to establish a finding of corporate presence in New York (see Laufer v Ostrow, supra at 310; Sedig v Okemo Mountain, 204 AD2d 709 [2d Dept 1994]; Muollo v Crestwood Village, 155 AD2d 420 [2d Dept 1989]). There must be activities of substance in addition to solicitation to support a finding of presence (see Laufer v Ostrow, supra; Sedig v Okemo Mountain, supra). The plaintiff has made no showing of any activities by the defendant beyond the mere solicitation of business. The plaintiff's contention that the defendant's website is sufficient to establish that the defendant is doing business here is without merit. A website which is used to book hotel rooms is analogous to a telephone reservation system which is insufficient to confer jurisdiction (see Rodriguez v Circus Circus Casinos, 2001 WL 21244 [SDNY 2001]; Ziperman v Frontier Hotel, 50 AD2d 581 [2d Dept 1975]; see also Carte v Parkoff, 152 AD2d 615 [2d Dept 1989]). Under these circumstances, the plaintiff has failed to demonstrate that the defendant is doing business in New York (see Cardone v Jiminy Peak, 245 AD2d 1002 [3d Dept 1997]; Sedig v Okemo Mountain, supra; Savoleo v Couples Hotel, 136 AD2d 692 [2d Dept 1988]).

The plaintiff also seeks to impose long arm jurisdiction, pursuant to CPLR 302(a)(1), on the grounds that the defendant transacts business in New York. CPLR 302(a)(1) is a single act statute and proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted (see Kreutter v McFadden Oil Corp., 71 NY2d 460, 467; Wright v 299 Union Ave. Corp., 288 AD2d 382 [2d Dept 2001]). In support, the plaintiff makes the same arguments regarding the defendant's solicitation of business and asserts that the infant plaintiff's father made reservations over the phone. However, this action concerns a personal injury claim arising out of the defendant's alleged negligent maintenance of the premises in Pennsylvania. Thus, there is no substantial relationship between the defendant's sales activities and the plaintiff's tort claim to support long arm jurisdiction under CPLR 302(a)(1) (see Sedig v Okemo Mountain, supra).

The Court notes that the plaintiff also requests discovery regarding the degree of solicitation [*3]and the extent of revenue derived by the defendant from New York. As previously noted, however, mere solicitation is insufficient to establish that the defendant is doing business in New York. Evidence concerning solicitation and revenue is relevant only when jurisdiction is sought under CPLR 302(a)(3) for a tortious act which causes injury within the State. That statute is not applicable to this action since the infant plaintiff's injury occurred in Pennsylvania (see McGowan v Smith, 52 NY2d 268, 273-74). Thus, the plaintiff has failed to sufficiently demonstrate that a basis for long arm jurisdiction may exist.

Accordingly, the motion is granted and the complaint is dismissed.

Dated: January 30, 2006

DANIEL J. LOUGHLIN, J.S.C.

X FINAL DISPOSITION NON-FINAL DISPOSITION