Bossey v Camelback Ski Corp.

[*1] Bossey v Camelback Ski Corp. 2008 NY Slip Op 52080(U) [21 Misc 3d 1116(A)] Decided on October 20, 2008 Supreme Court, Suffolk County Whelan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2008
Supreme Court, Suffolk County

Evan Bossey, an infant under the age of 14 years by his father and natural guardian, MARK BOSSEY and MARK BOSSEY, individually, Plaintiffs,

against

Camelback Ski Corporation, Defendant.



36142-07



BORNSTEIN & EMANUEL, PC

Attys. For Plaintiffs

200 Garden City Plaza

Garden City, NY 11530

CAROL A. SCHRAGER, ESQ.

Atty. For Defendant

404 Park Ave. So.

New York, NY 10016

Thomas F. Whelan, J.

ORDERED that this motion (#

001) by the defendant for an order dismissing the complaint served and filed herein by the plaintiffs in this personal injury action on the grounds that this court lacks personal jurisdiction [*2]over the defendant or that this court is an inconvenient forum is considered under CPLR 3211(a)(8) and 327 and is granted.

The plaintiffs commenced this action to recover damages attributable to the personal injuries sustained by the infant plaintiff, Evan Bossey, on February 22, 2004 at a Pennsylvania ski resort owned and/or operated by the defendant, Camelback Ski Corporation (hereinafter "Camelback"). On that date, the infant plaintiff sustained personal injuries while skiing on a beginners' trail when he came into contact with an unpadded pole which was allegedly situated on the subject ski trail. By the complaint served and filed herein, the plaintiffs charge Camelback with negligence by reason of the purportedly dangerous and defective condition of the subject ski trail.

In lieu of answering, defendant Camelback, who was served with the summons and complaint without the State of New York, moves for an order dismissing this action on the grounds that this court lacks personal jurisdiction pursuant to CPLR 3211(a)(8). Alternatively, Camelback requests an order dismissing this action pursuant to CPLR 327 on forum non conveniens grounds.

In support of its motion for dismissal due to a lack of personal jurisdiction, Camelback argues that it is a foreign corporation having no presence in New York within the contemplation of CPLR 301. Camelback further argues that it is not amenable to suit in New York under the single transaction long-arm statute set forth in CPLR 302 because it transacts no business in New York within the purview of CPLR 302(a)(1) and it committed no tortious act within New York or one without the state that caused injury to a person or property within New York as contemplated by CPLR 302(a)(2) and 302(a)(3).

The plaintiffs oppose both the jurisdictional and forum non conveniens predicates of the defendant's motion to dismiss the complaint. However, the plaintiffs limit their claims of a proper jurisdictional basis over the defendant to its constructive presence in New York under the well established "doing business" rule that has evolved under CPLR 301. Under these circumstances, the court will limit its analysis to the applicability of the "doing business" rule under CPLR 301 in determining whether this court has personal jurisdiction over the defendant, Camelback.

Not in dispute is the fact that defendant Camelback is a non-domiciliary corporation having no offices in New York. The defendant's claim that it staffs no employees in New York and that its employees travel to New York to attend trade shows only occasionally is similarly uncontroverted. The plaintiffs nevertheless contend that the defendant is "doing business" in New York by virtue of its constant presence here through its interactive website and its solicitation of New York customers by placement of advertising flyers in New York retail ski shops.

New York courts have traditionally exercised personal jurisdiction over non-domicilliary, [*3]corporate defendants where such defendants engage in a "continuous and systematic course of doing business" as to warrant a finding of its "presence" in this state (see Landoil Resources Corp. v Alexander & Alexander Serv., 77 NYS2d 28, 563 NYS2d 739 [1990]; Tauza v Susquehanna Coal Co., 220 NY 259, 115 NE 915 [1917]). The "doing-business" rule, which evolved at common law and is now codified under the general jurisdictional statute set forth in CPLR 301, imposes a stringent standard since a corporation which is found amenable to suit thereunder may be sued on causes of action wholly unrelated to acts done in New York (see Ball v Metallurgie Hoboken-Overspelt, S.A., 902 F2d 194 [2d Cir. 1990]; cf. CPLR 302[a]). Engagement in occasional or casual business in New York does not suffice under CPLR 301 nor does mere solicitation of New York customers (see Laufer v Ostrow, 55 NY2d 458, 449 NYS2d 456 [1982]; Miller v Surf Prop., 4 NY2d 475, 176 NYS2d 318 [1958]). Instead, a finding of "doing business" under CPLR 301 is dependent upon the existence of traditional indicia from which the court may conclude that the foreign defendant has sufficient contacts with New York to warrant a finding that it is present here. Such indicia include whether the corporation has employees, agents, offices or property within the state; whether it is authorized to do business here and the volume of business which it conducts with New York residents (see Laufer v Ostrow, 55 NY2d 305, supra ; Frummer v Hilton Hotels Intl., Inc, 19 NY2d 533, 281 NYS2d 41 [1967]).

While the courts have long espoused that the mere solicitation of business which attracts customers here or results in sales to New Yorkers is insufficient to confer jurisdiction under the traditional doing business rule CPLR 301, they have recognized that substantial solicitation by the foreign corporate defendant coupled with financial or other commercial dealings in New York may be sufficient for a finding of doing business (see Landoil Resources Corp. v Alexander & Alexander Serv., Inc., 918 F2d1039 [2d Cir. 1990]; Aquascutum of London, Inc. v SS American Champion, 426 F2d 205 [2d Cir. 1970). This second prong of the doing business test is known as the "solicitation-plus" rule. Under this rule, engagement in solicitation that is substantial and continuous and the undertaking of other activities of substance in the New York, may warrant a finding of a general jurisdiction under CPLR 301 (see Landoil Resources Corp., v Alexander & Alexander Servs., 918 F2d 1039, supra ; Brown v Ghost Town in the Sky, 2001 WL 1078341 [EDNY 2001]).

Recent case authorities have applied the solicitation-plus rule to find the existence of general jurisdiction under CPLR 301 in cases wherein it was established that the foreign defendant solicited New York business through an interactive website and engaged in other activities here in New York (see Bankrate, Inc. v Mainline Tavistock, Inc., 18 Misc 3d 1127(A), 856 NYS2d 496 [Kings County, Sup. Ct. 2008]; Baggs v Little League Baseball Inc., 17 Misc 3d 212, 840 NYS2d 529 [Richmond County, Sup. Ct. 2007]; Chestnut Ridge Air, Ltd. v 1260269 Ontario, Inc., 13 Misc 3d 807, 827 NYS2d 461 [NY County, Sup. Ct. 2006]). It appears, however, that in reaching their holdings, these courts relied on case authorities which analyzed website activity under the long-arm statute at CPLR 302 rather than under the "doing business" rule of CPLR 301 (cf. Thomas Publ. Co. v Industrial Quick Search, Inc., 237 F.Supp2d 489 [SDNY 2002]). [*4]

That a foreign corporation has an interactive website accessible to New Yorkers is alone insufficient to confer jurisdiction under CPLR 301 (see Aqua Prods., Inc. v Smartpool, Inc., 2005 WL 1994013 [SDNY 2005]; Heidle v The Prospect Reef Resort, Ldt.., 364 F.Supp2d 312 [WDNY 2005]; Shultz v Ocean Classroom Found., Inc., 2004 WL 488322 [SDNY 2004]; In re Ski Train Fire in Kaprun, Austria on November 11, 2000, 230 F.Supp2d 376 [SDNY 2002]; Spencer Trask Ventures v Archos S.A., 2002 WL 417192 [SDNY 2002]). General jurisdiction over a foreign corporation under CPLR 301 does not lie in cases wherein the claim of jurisdiction rests on allegations of solicitation and marketing by a non-New York agent through a web-based reservation program that is not located in New York (see Tese-Milner v ADEFX Promotions, Inc., 2007 WL 196866 [SDNY 2007]; CBC Wood Prods., Inc. v LMD Integrated Logistics Servs., Inc., 455 F.Supp2d 218 [EDNY 2006]); Drucker Cornell v Assicurazioni Genrali S.P.A. Consol., 200WL 284222 [SDNY 2000]). Rather, what is necessary to a finding of jurisdiction under CPLR 301 in a tort case, which does not fall under the auspices of New York's long-arm statute codified at CPLR 302, is: 1) the presence of traditional indicia of doing business (see Laufer v Ostrow, 55 NY2d 305, supra ); or 2) substantial and continuous solicitation by the foreign corporate defendant coupled with financial, commercial dealings or other activities of substance in New York (see Cicalo v Harrah's Operating Co., Inc., 2008 WL 1847665 [SDNY 2008]); Thomas Publ. Co. v Industrial Quick Search, Inc., 237 F.Supp2d 489, supra ; Body Beautiful, Inc. v Fred Hayman Beverly Hills, Inc., 1997 WL 527784 [SDNY 1997]; Landoil Resources, Corp. v Alexander & Alexander Serv., Inc., 918 F2d 1039, supra ; Aquascutum of London, Inc. v SS American Champion, 426 F2d 205, supra ).

Here, the plaintiffs failed to carry their burden of establishing facts necessary to support a finding that the defendant may be deemed to have a presence under the "doing business" rule of CPLR 301. The record adduced on this motion reveals only that the defendant solicits business through its interactive web- site which allows customers, including those in New York, to book reservations for accommodations and to purchase tickets to ski lifts and other recreational events at the defendant's ski resort in Pennsylvania. Even if this court were to conclude that the constant availability of the defendant's interactive web-site constitutes substantial solicitation so as to trigger application of the "solicitation-plus" rule, there has been no showing of other factors such as, its engagement in financial or commercial dealings or other activities of substance here in New York (see Cardone v Peak, 245 AD2d 1002, 667 NYS2d 82 [3d Dept 1997]; Sedig v Okemo Mtn., 204 AD2d 709, 612 NYS2d 643 [2d Dept 1994]; Chamberlain v Peak, 155 AD2d 768, 547 NYS2d 706 [2d Dept 1989]; Nadraus v Fernwood Hotel and Resort, 11 Misc 3d 1075(A), 816 NYS2d 697 [Suffolk County, Sup. Ct. 2006]).

In view of the foregoing, those portions of the instant motion (#

001) by the defendant for dismissal of the plaintiff's complaint pursuant to CPLR 3211(a)(8) is granted. All other demands for relief are denied as moot. The Clerk of the Calendar Department shall mark the within action disposed upon receipt of this order. [*5]

DATED: ___________________________________________________

THOMAS F. WHELAN, J.S.C. .