Rodriguez v Shockey Tours Inc.

[*1] Rodriguez v Shockey Tours Inc. 2018 NY Slip Op 51897(U) Decided on November 19, 2018 Supreme Court, Bronx County Higgitt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2018
Supreme Court, Bronx County

Celia Rodriguez, Plaintiff,

against

Shockey Tours Inc. and "JOHN DOE" (name being fictitious) person more accurately described in complaint herein, Defendants.



27944/2017E



Jeffrey S. Stillman, Esq., Stillman & Stillman, P.C., for plaintiff

Sherri A. Jayson, Esq., Gallo Vitucci Klar LLP, for defendant Shockey Tours Inc.
John R. Higgitt, J.

In this action to recover damages for personal injuries plaintiff allegedly sustained as a result of defendant's alleged negligence, defendant seeks dismissal of the complaint under several paragraphs of CPLR 3211(a). For the reasons that follow, defendant's motion is granted and the complaint is dismissed.

Plaintiff alleges that she sustained injuries during a bus tour in Tennessee when a step stool collapsed underneath her while she was alighting from a bus. The complaint alleges that defendant was negligent in its ownership and maintenance of the bus, and negligently entrusted the bus to the "John Doe" driver. Defendant moves pursuant to CPLR 3211(a)(1), (7) and (8) to dismiss the complaint. In support of the motion, defendant submits the summons and complaint, the affidavits of service, a passenger incident form, and the affidavits of the driver (now known to be Robert Gallegos) and defendant's owner.

On a motion to dismiss the complaint pursuant to CPLR 3211(a)(1), "dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 NY2d 83, 88 [1994]). Defendant thus bears the burden of demonstrating that the affidavits and incident form constitute "documentary evidence" that conclusively refute plaintiff's factual allegations (see Kolchins v Evolution Mkts., Inc., 31 NY3d 100 [2018]).

"To qualify as 'documentary,' the paper's content must be 'essentially undeniable and ..., assuming the verity of [the paper] and the validity of its execution, will itself support the ground [*2]on which the motion is based'" (Amsterdam Hosp. Group, LLC v Marshall-Alan Assocs., Inc., 120 AD3d 431, 432 [1st Dept 2014]). Affidavits do not qualify as documentary evidence (see United States Fire Ins. Co. v North Shore Risk Mgt., 114 AD3d 408 [1st Dept 2014]). Moreover, assuming that the incident form qualifies as documentary evidence, it does not conclusively refute plaintiff's factual allegations. The form recites that the driver, who did not witness the accident, was informed that plaintiff was injured when leaving the bus. Accordingly, defendant is not entitled to relief under CPLR 3211(a)(1).

In support of the facet of the motion seeking dismissal pursuant to CPLR 3211(a)(7), defendant argues that the complaint fails to state where the accident occurred [FN1] and is contradictory in that it alleges negligent operation of the bus as well as negligent maintenance of the stepstool.

"On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), it is well settled that courts must liberally construe a pleading, accept all the facts alleged therein to be true, and accord those allegations the benefit of every possible favorable inference in order to determine whether those facts fit within any cognizable legal theory" (Molina v Phoenix Sound, Inc., 297 AD2d 595, 596 [1st Dept 2002]). "[A] defendant can submit evidence[, such as affidavits,] in support of [a CPLR 3211(a)(7)] motion attacking a well-pleaded cognizable claim" (Basis Yield Alpha Fund (Master) v Goldman Sachs Grp., Inc., 115 AD3d 128, 134 [1st Dept 2014]). The affidavits (or other evidence) submitted in support of a motion to dismiss must conclusively establish the lack of a claim or cause of action (see Godfrey v Spano, 13 NY3d 358 [2009]; Anonymous v Anonymous, 165 AD3d 19 [1st Dept 2018]).

The complaint's allegations should be concisely stated (see CPLR 3014) and must be "sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense" (CPLR 3013). In addressing pleading deficiencies (see CPLR 3013, 3014), prejudice to the opposing party is the paramount concern (see Scholastic Inc. v Pace Plumbing Corp., 129 AD3d 75 [1st Dept 2015]). Here, plaintiff's failure to identify the location of her accident did not prevent defendant from identifying its driver and locating the applicable incident report. Furthermore, plaintiff may plead theories in the alternative and need not plead consistently (see CPLR 3014). Thus, plaintiff is permitted to plead and pursue the theories of negligent operation of the bus and negligent maintenance of the stepstool.

Additionally, "affidavits may be used freely to preserve inartfully pleaded, but potentially meritorious, claims" (Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]). The court may consider the pleading, together with the affidavits submitted in opposition to the motion to dismiss, to determine whether sufficient facts are asserted to state a cognizable cause of action (see Chapman, Spira & Carson, LLC v Helix BioPharma Corp., 115 AD3d 526 [1st Dept 2014]). The pleading and supporting affidavits are considered as a whole (see Stukuls v State, 42 NY2d 272 [1977]; Russo v Rozenholc, 130 AD3d 492 [1st Dept 2015]). The court may consider "other" (Tenuto v Lederle Lab., 90 NY2d 606 [1997]), or "additional" (CPC Intl. Inc. v McKesson Corp., 70 NY2d 268 [1987]) documents submitted in opposition to the motion. As with the allegations of the pleading, the averments in an affidavit submitted in support of the [*3]pleading will be given their "most favorable intendment" (Butler v Helmsley-Spear, Inc., 198 AD2d 131, 131 [1st Dept 1993]). Even assuming plaintiff's complaint was not, standing alone, sufficient to withstand defendant's CPLR 3211(a)(7) motion, plaintiff remedied any deficiencies in the complaint by submitting a detailed affidavit in opposition to the motion.

Finally, defendant moves pursuant to CPLR 3211(a)(8) on the ground that neither defendant nor its driver, both residents of Kentucky, are amenable to the jurisdiction of the New York courts (see CPLR 302[a]).

Under New York's "long-arm" jurisdiction, the court may exercise jurisdiction over a non-domiciliary in four circumstances: (1) where the defendant "transacts any business within the state or contracts anywhere to supply goods or services in the state" (CPLR 302[a][1]); (2) where the defendant "commits a tortious act within the state" (CPLR 302[a][2]); (3) where the defendant "commits a tortious act without the state causing injury to person or property within the state, . . . if he [or she] (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" (CPLR 302[a][3]); and (4) where the defendant "owns, uses or possesses any real property situated within the state" (CPLR 302[a][4]).

It is uncontroverted that the accident occurred outside New York State, and that defendant does not own, use or possess real property here. Accordingly, CPLR 302(a)(2) and (4) are inapplicable. Furthermore, the site of plaintiff's injury is where the accident occurred, not where plaintiff resided or experienced the consequences of or received care for the resulting injuries, making CPLR 302(a)(3) inapplicable (see Paterno v Laser Spine Inst., 24 NY3d 370 [2014]; Abad v Lorenzo, 163 AD3d 903 [2d Dept 2018]; Stern v Four Points by Sheraton Ann Arbor Hotel, 133 AD3d 514 [1st Dept 2015]; Lancaster v Colonial Motor Freight Line, Inc., 177 AD2d 152 [1st Dept 1992]). Plaintiff therefore correctly concedes that the only possible ground for the court to exercise jurisdiction over the defendant is under CPLR 302(a)(1).

Defendant argues that because the accident itself did not arise from a New York business transaction, CPLR 302(a)(1) is inapplicable. Defendant's owner averred that defendant is a Kentucky charter bus company having its sole office and principal place of business in Louisville. Defendant has never filed a certificate of authority to do business in New York, and does not maintain an office, any physical presence or assets in New York. It does not derive revenue or transact, conduct or solicit business in New York. Its contracts and agreements are all negotiated from its Louisville office. Defendant's owner averred that defendant's sole contact with New York was providing charter bus services to independent tour companies by picking up and dropping off passengers in New York four to eight times per year. Defendant entered into a contract with a Florida tour company to provide a bus for the tour on which plaintiff was injured. The tour originated and ended in New York, but plaintiff's injuries occurred in Tennessee. Defendant's president averred that every tour, regardless of its point of departure or completion, commences with defendant's driver picking up the bus from defendant's Kentucky garage.

On a defendant's motion to dismiss pursuant to CPLR 3211(a)(8), plaintiff bears the burden of"[coming] forward with sufficient evidence, through affidavits and relevant documents, to prove the existence of jurisdiction" (Fischbarg v Doucet, 9 NY3d 375, 385 n 5 [2007]; Coast to Coast Energy, Inc. v Gasarch, 149 AD3d 485, 486 [1st Dept 2017]). Plaintiff need only make a prima facie showing of jurisdiction through sufficient documentary evidence (see Santiago v [*4]Highway Freight Carriers, Inc., 153 AD3d 750 [2d Dept 2017]).[FN2]

To establish personal jurisdiction over a non-domiciliary defendant under CPLR 302(a)(1), plaintiff must establish that the defendant has purposefully availed itself of New York as a forum for conducting business. "[P]urposeful availment occurs when the non-domiciliary seeks out and initiates contact with New York, solicits business in New York, and establishes a continuing relationship" (D & R Glob. Selections, S.L. v Bodega Olegario Falcon Pineiro, 29 NY3d 292, 298 [2017] [internal quotation marks and citation omitted]). "A non-domiciliary defendant transacts business in New York when 'on his or her own initiative[,] the non-domiciliary projects himself or herself into this state to engage in a sustained and substantial transaction of business' (id. [citation omitted]). "Cumulative minor activities that, individually, may be insufficient, may suffice for constitutional purposes as long as the cumulative effect creates a significant presence within the state" (O'Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199, 200 [1st Dept 2003] [citations omitted and emphasis added]). But "[m]ore than limited contacts are required for purposeful activities sufficient to establish that the non-domiciliary transacted business in New York" (Paterno, 24 NY3d at 376). Regardless of their frequency, it is the quality of the defendant's contacts with New York that is the primary consideration in determining whether New York possesses long-arm jurisdiction over the defendant (see C. Mahendra (NY), LLC v Natl. Gold & Diamond Ctr., Inc., 125 AD3d 454 [1st Dept 2015]; see generally Walden v Fiore, 571 US 277, 283-85 [2014]).

Plaintiff failed to demonstrate that defendant transacted "significant" business in New York (see Wang v LSUC, 137 AD3d 520 [1st Dept 2016]) or conducted "sufficient purposeful activities" in New York (Santiago, 153 AD3d at 752). Plaintiff submits no proof that defendant's appearance in New York was the result of a purposeful availment of the forum, rather than incidental to the execution of its out-of-state contracts (see Pacamor Bearings, Inc. v Molon Motors & Coil, Inc., 102 AD2d 355 [3rd Dept 1984]). Defendant entered New York sporadically (see M.B.S. Moda, Inc. v Fuzzi S.P.A., 38 Misc 3d 1208[A], 2013 NY Slip Op 50026[U] [Sup Ct, NY County 2013]) and for the limited purpose of furthering the business of the independent tour companies.[FN3] The furnishing of transportation services of the nature [*5]described here is insufficient to establish jurisdiction over defendant in New York (see Corio v Stebo, Inc., 84 AD2d 738 [1st Dept 1981]).

Furthermore, there is no basis to find that the court has personal jurisdiction over defendant's employee-driver (see SNS Bank, N.V. v Citibank, N.A., 7 AD3d 352 [1st Dept 2004]; Baran Computer Servs., Ltd. v First Bank of Maury County, 143 AD2d 63 [2d Dept 1988]).

The court notes that plaintiff did not argue that CPLR 3211(d) jurisdictional discovery on the matter was necessary (see Peterson v Spartan Indus., Inc., 33 NY2d 463 [1974]; cf. Santiago, supra).

Accordingly, it is

ORDERED, that the aspect of defendant's motion seeking dismissal of the complaint pursuant to CPLR 3211(a)(8) is granted; and it is further

ORDERED, that defendant's motion is otherwise denied; and it is further

ORDERED, that the Clerk of the Court is directed to enter judgment in favor of defendant dismissing the complaint.

This constitutes the decision and order of the court.

Dated: November 19, 2018

_______________________________

John R. Higgitt, A.J.S.C. Footnotes

Footnote 1:In its affirmation submitted in support of the motion, defendant recites that the accident allegedly occurred near the entrance of a Best Western hotel located at 825 Murfreesboro Pike, Nashville, Tennessee.

Footnote 2:As described by Professor Alexander, "[i]f challenged, the plaintiff has the burden of proving a basis of in personam jurisdiction under either CPLR 301 or 302. See, e.g., Arroyo v. Mountain School, 2009, 68 AD3d 603, 892 N.Y.S.2d 74 (1st Dep't). Plaintiff's complaint, however, need not allege that the court has a basis of personal jurisdiction. Fischbarg v. Doucet, 2007, 9 NY3d 375, 381 n.5, 849 N.Y.S.2d 501, 506, 880 N.E.2d 22, 27. Nowhere in the CPLR's rules of pleading is there any requirement of an allegation of the court's jurisdiction. The pleading burden, rather, lies with the defendant to raise lack of personal jurisdiction as a defense in a pre-answer motion to dismiss or in the answer. See CPLR 3211(a)(8), 3211(e). If the defendant moves to dismiss due to the absence of a basis of personal jurisdiction, the plaintiff must come forward with sufficient evidence, through affidavits and relevant documents, to prove the existence of jurisdiction" (Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 302, C302:5, at 166 [main vol.]).

Footnote 3:Defendant did not enter into contractual relationships that "envisioned continuing and wide-reaching contacts" in New York (cf. Burger King Corp. v Rudzewicz, 471 US 462, 479-80 [1985]).