Opinion
167 CA 18–01678
06-07-2019
Mohammed ZEIDAN and Hiba Abuhamdeh, Plaintiffs–Appellants, v. SCOTT'S DEVELOPMENT COMPANY, Scott's Splash Lagoon, Inc., Doing Business as Splash Lagoon Indoor Water Park Resort and Scott Enterprises, LLC, Doing Business as Splash Lagoon Indoor Water Park Resort, Defendants–Respondents.
ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (RICHARD A. NICOTRA OF COUNSEL), FOR PLAINTIFFS–APPELLANTS. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, ERIE, PENNSYLVANIA (PATRICK M. CAREY OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (RICHARD A. NICOTRA OF COUNSEL), FOR PLAINTIFFS–APPELLANTS.
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, ERIE, PENNSYLVANIA (PATRICK M. CAREY OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Mohammed Zeidan (plaintiff) allegedly sustained injuries when, after going down a water slide at a water park in Pennsylvania owned and/or operated by defendants, he was struck by another patron who was sent down the water slide too closely behind him. Plaintiffs commenced this action asserting a cause of action for negligence based on defendants' alleged improper supervision of the water slide and inadequate training of the water park employees, as well as a derivative cause of action on behalf of plaintiff's spouse. Contrary to plaintiffs' contention, Supreme Court properly granted the motion of defendants to dismiss the complaint for lack of personal jurisdiction (see CPLR 3211[a][8] ). "[I]n opposition to a motion to dismiss pursuant to CPLR 3211(a)(8), [plaintiffs] need only make a prima facie showing that the defendant[s] ... [were] subject to the personal jurisdiction of" the court ( Halas v. Dick's Sporting Goods, 105 A.D.3d 1411, 1412, 964 N.Y.S.2d 808 [4th Dept. 2013] [internal quotation marks omitted] ). Here, however, having accepted as true the allegations set forth in the complaint and in plaintiffs' opposition papers, and having accorded plaintiffs the benefit of every favorable inference (see Whitcraft v. Runyon, 123 A.D.3d 811, 812, 999 N.Y.S.2d 124 [2d Dept. 2014] ), we conclude that plaintiffs failed to meet that burden (see id. ; cf. Halas, 105 A.D.3d at 1412, 964 N.Y.S.2d 808 ).
Contrary to plaintiffs' contention, they failed to make a prima facie showing of jurisdiction pursuant to CPLR 302(a)(1) inasmuch as they failed to demonstrate "an ‘articulable nexus’ or ‘substantial relationship’ " between at least one element of their negligence cause of action and defendants' alleged contacts with New York ( D & R Global Selections, S.L. v Bodega Olegario Falcon Pineiro, 29 N.Y.3d 292, 298, 56 N.Y.S.3d 488, 78 N.E.3d 1172 [2017] ; see Mejia–Haffner v. Killington, Ltd., 119 A.D.3d 912, 914, 990 N.Y.S.2d 561 [2d Dept. 2014] ; cf. Halas, 105 A.D.3d at 1412, 964 N.Y.S.2d 808 ; see also Leuthner v. Homewood Suites by Hilton, 151 A.D.3d 1042, 1043–1044, 58 N.Y.S.3d 437 [2d Dept. 2017] ). For a similar reason, plaintiffs failed to make a prima facie showing of jurisdiction pursuant to CPLR 302(a)(4). Although plaintiffs alleged that defendant Scott Enterprises, LLC owns property in New York, there is no indication in the record that such ownership gave rise to plaintiffs' allegations of negligence at the water park in Pennsylvania (see generally D & R Global Selections, S.L., 29 N.Y.3d at 298–299, 56 N.Y.S.3d 488, 78 N.E.3d 1172 ; Black Riv. Assoc. v. Newman, 218 A.D.2d 273, 276–277, 637 N.Y.S.2d 880 [4th Dept. 1996] ).
Plaintiffs also failed to make a prima facie showing of jurisdiction pursuant to CPLR 302(a)(3). Indeed, plaintiff's alleged injuries did not occur "within" New York (id. ). It is undisputed that the alleged injuries were sustained in Pennsylvania, and the fact that plaintiff may have suffered medical consequences in New York after returning home is insufficient to establish jurisdiction under CPLR 302(a)(3) (see McGowan v. Smith, 52 N.Y.2d 268, 274–275, 437 N.Y.S.2d 643, 419 N.E.2d 321 [1981] ; cf. Halas, 105 A.D.3d at 1412, 964 N.Y.S.2d 808 ; see also Paterno v. Laser Spine Inst., 24 N.Y.3d 370, 381, 998 N.Y.S.2d 720, 23 N.E.3d 988 [2014] ; Bloomgarden v. Lanza, 143 A.D.3d 850, 852 [2d Dept. 2016] ).
In light of our determination that plaintiffs failed to make the requisite showing under an applicable provision of CPLR 302, we see no need to reach plaintiffs' contention concerning due process (see generally LaMarca v. Pak–Mor Mfg. Co., 95 N.Y.2d 210, 214, 713 N.Y.S.2d 304, 735 N.E.2d 883 [2000] ).