Summary
In Rung, supra (interpreting CPLR § 302), the court found that the defendant had transacted business in New York because it "engaged in purposeful activity in New York by regularly corresponding by mail or telephone with plaintiff's insurance company in New York."
Summary of this case from Tribeca Medical, P.C. v. Dollar Rent a CarOpinion
April 8, 1988
Appeal from the Supreme Court, Erie County, Wolfgang, J.
Present — Denman, J.P., Green, Pine, Balio and Lawton, JJ.
Order unanimously reversed on the law without costs and defendant A.E. Wilson and Company, Limited's motion denied. Memorandum: The court erred in dismissing the complaint, amended complaint and cross claims against defendant A.E. Wilson and Company, Limited (Wilson) on the ground that it was not subject to the jurisdiction of New York courts. The underlying facts are as follows: Wilson is a Canadian insurance agency through which plaintiffs obtained insurance from defendant United States Fidelity Guaranty Co. (USFG) on cars licensed and insured in Canada. Plaintiffs own a residence in Canada but live in New York. Plaintiff Maureen Rung is a paraplegic as a result of a one-car accident in New York State, and the coverage available under the insurance policy of the owner and driver of the car in which she was injured is limited to $350,000. Plaintiff Maureen Rung and her father, Robert Rung, claimed coverage under Robert Rung's policy with USFG, pursuant to the underinsured motorist endorsement of that policy, and they commenced a declaratory judgment action to determine that they were so covered. They later amended their complaint to add tort causes of action in the alternative.
We find that personal jurisdiction over Wilson does exist in New York pursuant to CPLR 302 (a) (1) (see, Parke-Bernet Galleries v. Franklyn, 26 N.Y.2d 13, 16-17). Wilson transacted business and engaged in purposeful activity in New York, by regularly corresponding, by mail or telephone, with Kary, plaintiffs' insurance agent in New York; by delivering the insurance policy to Kary in New York; by sending invoices to Kary, seeking plaintiffs' premium payments; and by collecting those premiums from Kary. We further find that plaintiffs' causes of action are ripe for adjudication based on the likelihood that plaintiffs' recovery in the underlying action will exceed the policy limit of $350,000 (see, State Farm Fire Cas. Co. v LiMauro, 103 A.D.2d 514, affd 65 N.Y.2d 369) and on the fact that none of the claims will be resolved in the accident litigation (see, Hollander v. Nationwide Mut. Ins. Co., 60 A.D.2d 380, lv denied 44 N.Y.2d 646). Finally, we reject Wilson's contention that plaintiffs' complaint and amended complaint must be dismissed for failure to allege the basis for jurisdiction over Wilson; we find no basis for imposing a strict jurisdictional pleading rule (see, Fishman v. Pocono Ski Rental, 82 A.D.2d 906, 907; see, e.g., Peterson v. Spartan Indus., 33 N.Y.2d 463; Badger v. Lehigh Val. R.R. Co., 45 A.D.2d 601).