Bossey v Camelback Ski Corp. (2008 NY Slip Op = 52080(U))

Bossey v Camelback Ski Corp.

2008 NY Slip Op 52080(U)

Decided on October 20, 2008

Supreme Court, Suffolk County

Whelan, J.

Published by New York State = Law=20 Reporting Bureau pursuant to Judiciary Law =A7 = 431.

This opinion is uncorrected = and will=20 not be published in the printed Official=20 Reports.

ORDERED that this motion (#

001) by the = defendant for=20 an order dismissing the complaint served and filed herein by the = plaintiffs in=20 this personal injury action on the grounds that this court lacks = personal=20 jurisdiction [*2]over the defendant or that = this=20 court is an inconvenient forum is considered under CPLR 3211(a)(8) and = 327 and=20 is granted.=20

The plaintiffs commenced this action to recover damages attributable = to the=20 personal injuries sustained by the infant plaintiff, Evan Bossey, on = February=20 22, 2004 at a Pennsylvania ski resort owned and/or operated by the = defendant,=20 Camelback Ski Corporation (hereinafter "Camelback"). On that date, the = infant=20 plaintiff sustained personal injuries while skiing on a beginners' trail = when he=20 came into contact with an unpadded pole which was allegedly situated on = the=20 subject ski trail. By the complaint served and filed herein, the = plaintiffs=20 charge Camelback with negligence by reason of the purportedly dangerous = and=20 defective condition of the subject ski trail.=20

In lieu of answering, defendant Camelback, who was served with the = summons=20 and complaint without the State of New York, moves for an order = dismissing this=20 action on the grounds that this court lacks personal jurisdiction = pursuant to=20 CPLR 3211(a)(8). Alternatively, Camelback requests an order dismissing = this=20 action pursuant to CPLR 327 on forum non conveniens grounds.=20

In support of its motion for dismissal due to a lack of personal=20 jurisdiction, Camelback argues that it is a foreign corporation having = no=20 presence in New York within the contemplation of CPLR 301. Camelback = further=20 argues that it is not amenable to suit in New York under the single = transaction=20 long-arm statute set forth in CPLR 302 because it transacts no business = in New=20 York within the purview of CPLR 302(a)(1) and it committed no tortious = act=20 within New York or one without the state that caused injury to a person = or=20 property within New York as contemplated by CPLR 302(a)(2) and = 302(a)(3).=20

The plaintiffs oppose both the jurisdictional and forum non = conveniens=20 predicates of the defendant's motion to dismiss the complaint. However, = the=20 plaintiffs limit their claims of a proper jurisdictional basis over the=20 defendant to its constructive presence in New York under the well = established=20 "doing business" rule that has evolved under CPLR 301. Under these=20 circumstances, the court will limit its analysis to the applicability of = the=20 "doing business" rule under CPLR 301 in determining whether this court = has=20 personal jurisdiction over the defendant, Camelback.=20

Not in dispute is the fact that defendant Camelback is a = non-domiciliary=20 corporation having no offices in New York. The defendant's claim that it = staffs=20 no employees in New York and that its employees travel to New York to = attend=20 trade shows only occasionally is similarly uncontroverted. The = plaintiffs=20 nevertheless contend that the defendant is "doing business" in New York = by=20 virtue of its constant presence here through its interactive website and = its=20 solicitation of New York customers by placement of advertising flyers in = New=20 York retail ski shops.=20

New York courts have traditionally exercised personal jurisdiction = over=20 non-domicilliary, [*3]corporate defendants = where such=20 defendants engage in a "continuous and systematic course of doing = business" as=20 to warrant a finding of its "presence" in this state (see Landoil=20 Resources Corp. v Alexander & Alexander Serv., 77 NYS2d 28, = 563=20 NYS2d 739 [1990]; Tauza v Susquehanna Coal Co., 220 NY = 259, 115 NE=20 915 [1917]). The "doing-business" rule, which evolved at common law and = is now=20 codified under the general jurisdictional statute set forth in CPLR 301, = imposes=20 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=20 York (see Ball v Metallurgie Hoboken-Overspelt, S.A., 902 = F2d 194=20 [2d Cir. 1990]; cf. CPLR 302[a]). Engagement in occasional or = casual=20 business in New York does not suffice under CPLR 301 nor does mere = solicitation=20 of New York customers (see Laufer v Ostrow, 55 NY2d 458, = 449 NYS2d=20 456 [1982]; Miller v Surf Prop., 4 NY2d 475, 176 NYS2d 318 = [1958]). Instead, a finding of "doing business" under CPLR 301 is = dependent upon=20 the existence of traditional indicia from which the court may conclude = that the=20 foreign defendant has sufficient contacts with New York to warrant a = finding=20 that it is present here. Such indicia include whether the corporation = has=20 employees, agents, offices or property within the state; whether it is=20 authorized to do business here and the volume of business which it = conducts with=20 New York residents (see Laufer v Ostrow, 55 NY2d 305, = supra=20 ; Frummer v Hilton Hotels Intl., Inc, 19 NY2d 533, 281 = NYS2d=20 41 [1967]).=20

While the courts have long espoused that the mere solicitation of = business=20 which attracts customers here or results in sales to New Yorkers is = insufficient=20 to confer jurisdiction under the traditional doing business rule CPLR = 301,=20 they have recognized that substantial solicitation by the foreign = corporate defendant coupled with financial or other commercial dealings = in New=20 York may be sufficient for a finding of doing business (see = Landoil=20 Resources Corp. v Alexander & Alexander Serv., Inc., 918 = F2d1039 [2d=20 Cir. 1990]; Aquascutum of London, Inc. v SS American = Champion, 426=20 F2d 205 [2d Cir. 1970). This second prong of the doing business test is = known as=20 the "solicitation-plus" rule. Under this rule, engagement in = solicitation that=20 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=20 CPLR 301 (see Landoil Resources Corp., v Alexander & Alexander = Servs., 918 F2d 1039, supra ; Brown v Ghost Town in = the=20 Sky, 2001 WL 1078341 [EDNY 2001]).=20

Recent case authorities have applied the solicitation-plus rule to = find the=20 existence of general jurisdiction under CPLR 301 in cases wherein it was = established that the foreign defendant solicited New York business = through an=20 interactive website and engaged in other activities here in New York = (see=20 Bankrate, Inc. v Mainline Tavistock, Inc., 18 Misc 3d = 1127(A), 856=20 NYS2d 496 [Kings County, Sup. Ct. 2008]; Baggs v Little League Baseball Inc., 17 Misc = 3d=20 212, 840 NYS2d 529 [Richmond County, Sup. Ct. 2007]; Chestnut = Ridge=20 Air, Ltd. v 1260269 Ontario, Inc., 13 Misc 3d 807, = 827=20 NYS2d 461 [NY County, Sup. Ct. 2006]). It appears, however, that in = reaching=20 their holdings, these courts relied on case authorities which analyzed = website=20 activity under the long-arm statute at CPLR 302 rather than under the = "doing=20 business" rule of CPLR 301 (cf. Thomas Publ. Co. v Industrial = Quick=20 Search, Inc., 237 F.Supp2d 489 [SDNY 2002]). [*4]

That a foreign corporation has an interactive website accessible to = New=20 Yorkers is alone insufficient to confer jurisdiction under CPLR 301 = (see=20 Aqua Prods., Inc. v Smartpool, Inc., 2005 WL 1994013 [SDNY = 2005];=20 Heidle v The Prospect Reef Resort, Ldt.., 364 F.Supp2d 312 [WDNY = 2005];=20 Shultz v Ocean Classroom Found., Inc., 2004 WL 488322 = [SDNY 2004];=20 In re Ski Train Fire in Kaprun, Austria on November 11,=20 2000, 230 F.Supp2d 376 [SDNY 2002]; Spencer Trask = Ventures v=20 Archos S.A., 2002 WL 417192 [SDNY 2002]). General jurisdiction = over a=20 foreign corporation under CPLR 301 does not lie in cases wherein the = claim of=20 jurisdiction rests on allegations of solicitation and marketing by a = non-New=20 York agent through a web-based reservation program that is not located = in New=20 York (see Tese-Milner v ADEFX Promotions, Inc., 2007 WL = 196866=20 [SDNY 2007]; CBC Wood Prods., Inc. v LMD Integrated Logistics = Servs.,=20 Inc., 455 F.Supp2d 218 [EDNY 2006]); Drucker Cornell v=20 Assicurazioni Genrali S.P.A. Consol., 200WL 284222 [SDNY 2000]). = Rather,=20 what is necessary to a finding of jurisdiction under CPLR 301 in a tort = case,=20 which does not fall under the auspices of New York's long-arm statute = codified=20 at CPLR 302, is: 1) the presence of traditional indicia of doing = business=20 (see Laufer v Ostrow, 55 NY2d 305, supra ); or 2)=20 substantial and continuous solicitation by the foreign corporate = defendant=20 coupled with financial, commercial dealings or other activities of = substance in=20 New York (see Cicalo v Harrah's Operating Co., Inc., 2008 = WL=20 1847665 [SDNY 2008]); Thomas Publ. Co. v Industrial Quick Search,=20 Inc., 237 F.Supp2d 489, supra ; Body Beautiful, = Inc. v Fred=20 Hayman Beverly Hills, Inc., 1997 WL 527784 [SDNY 1997]; = Landoil=20 Resources, Corp. v Alexander & Alexander Serv., Inc., 918 = F2d=20 1039, supra ; Aquascutum of London, Inc. v SS American=20 Champion, 426 F2d 205, supra ).=20

Here, the plaintiffs failed to carry their burden of establishing = facts=20 necessary to support a finding that the defendant may be deemed to have = a=20 presence under the "doing business" rule of CPLR 301. The record adduced = on this=20 motion reveals only that the defendant solicits business through its = interactive=20 web- site which allows customers, including those in New York, to book=20 reservations for accommodations and to purchase tickets to ski lifts and = other=20 recreational events at the defendant's ski resort in Pennsylvania. Even = if this=20 court were to conclude that the constant availability of the defendant's = interactive web-site constitutes substantial solicitation so as to = trigger=20 application of the "solicitation-plus" rule, there has been no showing = of other=20 factors such as, its engagement in financial or commercial dealings or = other=20 activities of substance here in New York (see Cardone v = Peak, 245=20 AD2d 1002, 667 NYS2d 82 [3d Dept 1997]; Sedig v Okemo = Mtn., 204=20 AD2d 709, 612 NYS2d 643 [2d Dept 1994]; Chamberlain v = Peak, 155=20 AD2d 768, 547 NYS2d 706 [2d Dept 1989]; Nadraus v Fernwood Hotel = and=20 Resort, 11 Misc 3d 1075(A), 816 NYS2d 697 [Suffolk County, Sup. = Ct.=20 2006]).=20

In view of the foregoing, those portions of the instant motion (#=20

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=20 as moot. The Clerk of the Calendar Department shall mark the within = action=20 disposed upon receipt of this order. [*5]

DATED:=20 ___________________________________________________=20