Opinion
662 CA 19–00101
08-22-2019
Jody C. BEST, Individually, and as the Administrator of the Estate of Donald L. Best, also known as Donnie L. Best, Deceased, Plaintiff–appellant, v. GUTHRIE MEDICAL GROUP, P.C., et al., Defendants, Guthrie Robert Packer Hospital, Silviu Marica, M.D., Ahmed Abdelbaki, M.D., Alexander Johnston, M.D., and David Bertsch, M.D., Defendants–Respondents.
WELCH, DONLON & CZARPLES PLLC, CORNING (ANNA CZARPLES OF COUNSEL), FOR PLAINTIFF–APPELLANT. SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KAREN G. FELTER OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
WELCH, DONLON & CZARPLES PLLC, CORNING (ANNA CZARPLES OF COUNSEL), FOR PLAINTIFF–APPELLANT.
SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KAREN G. FELTER OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying that part of the motion seeking summary judgment dismissing the complaint against defendant Guthrie Robert Packer Hospital and reinstating the complaint against that defendant, and as modified the order is affirmed without costs.
Memorandum: Plaintiff, individually and as the administrator of the estate of Donald L. Best (decedent), commenced this medical malpractice and wrongful death action seeking damages for the alleged negligent treatment provided to the decedent at defendant Guthrie Robert Packer Hospital (hospital), a facility located in Sayre, Pennsylvania, by Silviu Marica, M.D., Ahmed Abdelbaki, M.D., Alexander Johnston, M.D., and David Bertsch, M.D. (individual defendants). On defendants' motion for summary judgment pursuant to CPLR 3212, Supreme Court dismissed the complaint against the hospital and the individual defendants (collectively, defendants) on the ground of lack of personal jurisdiction.
As an initial matter, we reject plaintiff's contention that the court should have decided the motion under the standard applicable to motions brought under CPLR 3211(a). The court applied the correct standard to the motion, which was brought after service of the answers (see CPLR 3211[e] ; 3212[a]; see generally Williams v. Beemiller, Inc., 159 A.D.3d 148, 152, 72 N.Y.S.3d 276 [4th Dept. 2018], affd 33 N.Y.3d 523, 106 N.Y.S.3d 237, 130 N.E.3d 833, 2019 N.Y. Slip Op. 03656 [2019] ).
Contrary to plaintiff's further contention, the hospital did not consent to the general jurisdiction of New York courts by registering as a foreign corporation with the New York State Department of State (see Aybar v. Aybar, 169 A.D.3d 137, 147–152, 93 N.Y.S.3d 159 [2d Dept. 2019], lv dismissed 33 N.Y.3d 1044, 103 N.Y.S.3d 17, 126 N.E.3d 1057 [2019] ; Wilderness USA, Inc. v. DeAngelo Bros. LLC, 265 F.Supp.3d 301, 312–314 [W.D.N.Y.2017] ). We likewise reject plaintiff's contention that defendants Marica and Bertsch consented to New York personal jurisdiction solely based on their becoming licensed to practice medicine in New York (see generally Ingraham v. Carroll, 90 N.Y.2d 592, 600, 665 N.Y.S.2d 10, 687 N.E.2d 1293 [1997] ; Chambers v. Weinstein, 44 Misc.3d 1224[A], 2014 WL 4276910, 2014 N.Y. Slip Op. 51331[U], *12 [Sup. Ct. N.Y. County 2014], affd 135 A.D.3d 450, 21 N.Y.S.3d 892 [1st Dept. 2016] ).
We also reject plaintiff's contention that defendants waived an objection to personal jurisdiction when general counsel for The Guthrie Clinic, the parent company of the hospital, agreed to accept service of the complaint on behalf of certain defendants. The acceptance of service, standing alone, does not constitute an appearance or otherwise waive an objection to personal jurisdiction where, as here, counsel agrees to accept service as a courtesy without taking any additional action that could be construed as either a formal or informal appearance (cf. HSBC Bank USA, N.A. v. Taub, 170 A.D.3d 1128, 1130, 97 N.Y.S.3d 60 [2d Dept. 2019] ). Further, defendants preserved their objection to personal jurisdiction by raising that objection in their answers without having previously made a motion to dismiss on a ground set forth in CPLR 3211(a) (see CPLR 3211[e] ).
We agree with plaintiff, however, that the court erred in granting the motion insofar as it sought summary judgment dismissing the complaint against the hospital without first granting jurisdictional discovery. We therefore modify the order accordingly. Although defendants met their initial burden on the motion (see generally Williams, 159 A.D.3d at 152, 72 N.Y.S.3d 276 ), plaintiff made a "sufficient start" in establishing personal jurisdiction over the hospital pursuant to CPLR 301 and 302(a)(1) to be entitled to disclosure pursuant to CPLR 3212(f) (cf. Robins v. Procure Treatment Ctrs., Inc., 157 A.D.3d 606, 607, 70 N.Y.S.3d 457 [1st Dept. 2018] ; Williams v. Beemiller, Inc., 100 A.D.3d 143, 152–153, 952 N.Y.S.2d 333 [4th Dept. 2012] ). The record "is not clear whether [the hospital's] ‘affiliations with the State [of New York] are so continuous and systematic as to render [it] essentially at home in the ... State’ " as required for general jurisdiction ( Robins, 157 A.D.3d at 607, 70 N.Y.S.3d 457, quoting Daimler AG v. Bauman, 571 U.S. 117, 139, 134 S.Ct. 746, 187 L.Ed.2d 624 [2014] ; see CPLR 301 ) or whether its activities in New York are " ‘purposeful and [whether] there is a substantial relationship between the transaction and the claim asserted’ " as required for long-arm jurisdiction ( Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d 65, 71, 818 N.Y.S.2d 164, 850 N.E.2d 1140 [2006], cert denied 549 U.S. 1095, 127 S.Ct. 832, 166 L.Ed.2d 665 [2006] ; see CPLR 302[a][1] ). However, the record contains evidence that the hospital advertises to prospective New York patients and has at least some relationship with New York providers, New York insurers, and defendant Guthrie Medical Group, P.C., which owns New York offices. The record also contains evidence that the hospital derives substantial revenue from New York residents. Based on that initial showing, we conclude that plaintiff has made a "sufficient start" by establishing that facts "may exist to exercise personal jurisdiction" over the hospital, warranting jurisdictional discovery (see Williams, 100 A.D.3d at 153, 952 N.Y.S.2d 333 ).
We reject plaintiff's contention, however, that the court erred in granting the motion insofar as it sought summary judgment dismissing the complaint against the individual defendants without first granting jurisdictional discovery. The individual defendants are not subject to general jurisdiction under CPLR 301 because none of them are domiciled in New York, and there is no evidence that the individual defendants made sufficient contact with New York in their individual capacities (see Laufer v. Ostrow, 55 N.Y.2d 305, 313, 449 N.Y.S.2d 456, 434 N.E.2d 692 [1982] ; IMAX Corp. v. Essel Group, 154 A.D.3d 464, 465–466, 62 N.Y.S.3d 107 [1st Dept. 2017] ). Regarding long-arm jurisdiction under CPLR 302(a)(1), assuming, arguendo, that the individual defendants purposefully availed themselves of the privilege of conducting activity in New York, we conclude that there is no evidence that there was a " ‘substantial relationship’ " between that alleged activity and " ‘the claim asserted’ " by plaintiff ( Deutsche Bank Sec., Inc., 7 N.Y.3d at 71, 818 N.Y.S.2d 164, 850 N.E.2d 1140 ). Under these circumstances, plaintiff failed to make a nonfrivolous showing that facts may exist to exercise personal jurisdiction over the individual defendants, and thus further discovery as to them was not warranted (see Glazer v. Socata, S.A.S., 170 A.D.3d 1685, 1687 [4th Dept. 2019] ).