Opinion
0019717/2007.
May 13, 2008.
The following papers numbered I to 3 read on this morion: Papers Numbered
Notice of MotiodOrder to Show Cause/ PetitiodCross Motion and Affidavits (Affirmations) Annexed 1 Opposing Affidavits (Affirmations) 2 Reply Affidavits (Affirmations) 3 Affidavit (Affirmation), Other PaperUpon the foregoing papers, defendant John Scheuch, M.D. moves, pursuant to CPLR 3211 (a)(8), for an order dismissing the medical malpractice complaint of plaintiff John Sorezza on the ground that this court lacks long-arm jurisdiction over him. Plaintiff opposes the instant motion on the ground that he suffered injuries in New York due to the allegedly tortious conduct of defendant in New Jersey and, in any event, the defendant transacted business within New York State sufficient to support the imposition of jurisdiction over him pursuan to CPLR 302, the State's long-arm statute.
In the instant complaint, plaintiff avers that he sustained damages due to the alleged medical malpractice of defendant's treatment of him for kidney stones and related conditions. In support of his motion to dismiss, defendant submits an affidavit stating the following concerning his alleged lack of contacts with New York State and his treatment of plaintiff in New Jersey:
1. I am a physician licensed to practice medicine in the State of New Jersey.
2. Although I have a medical license to practice in the State of New York, I never practiced medicine in the State of New York. I do not belong to any New York Health Maintenance Organization. I do not have any contracts or agreements with any healthcare provider in New York to provide medical services in New Jersey.
3. I reside in Ridgewood, New Jersey.
4. I am an urologist on staff at Holy Name Hospital in Teaneck, New Jersey. I am affiliated with Beaugard Scheuch, M.D.P.A. located at 870 Palisades Avenue, Teaneck, NJ 07666. This location is my principal place of business.
5. I rendered medical care to John Sorezza at Holy Name Hospital in Teaneck, New Jersey and at my office in Teaneck, New Jersey.
6. I do not own, lease, use or possess any real estate in New York. I have no office in the State of New York.
7. I do not owe or pay any taxes in New York.
8. I have no New York mailing address or New York telephone address.
9. I have no New York motor vehicle license. I am not registered to vote in New Jersey.
10. All of my care and treatment of the plaintiff . . . took place in New Jersey.
11. I do not consent to jurisdiction of any New York Court in this action.
In opposition to said motion to dismiss, plaintiff submits an affidavit which states the following, in relevant part, with respect to the subject jurisdictional issue:
2. At all times herein mentioned, I was a resident of the county of Kings, City and State of New York.
3. In or around November, 2005, and for some time thereafter through at least January, 2006, I was a patient under the professional care of defendant. . . .
4. At all times herein mentioned, I was a member of a New York health insurance plan, Empire Blue Cross/Blue Shield, which was readily accepted by defendant, who was a participating provider under said plan. Had defendant not accepted my coverage, I would have sought an alternative medical provider.
5. During my initial visit and consultation with defendant, I filled out a form, where I listed, among other things, my New York State address. Furthermore, I discussed with defendant my concerns over treating with a doctor located in New Jersey and his ability to respond to any medical emergencies in New York. Defendant assured me that he was well prepared to treat a New York resident and to respond to any emergency arising in New York in connection with said treatment, subsequent to my sustaining damages as a result of defendant's treatment.
6. At all times herein mentioned, I made it known to defendant, his servants, agents and employees, that I was a New York State resident.
7. Throughout the course of my treatment with defendant, his office staff repeatedly communicated with me by phone and mail in New York. The majority of said communications were initiated by defendant, his servants, agents or employees, in order to schedule appointments and to otherwise continue my procurement of defendant's services. Indeed, [defendant] had personally contacted me and implored me to continue treating with him.
8. I ask the Court to allow this case to be fairly and wholly decided on its merits as the defendant has caused considerable damage to me he should not be . . . permitted to escape responsibility without my opportunity to have my day in a New York State Court.
In further support of his opposition, plaintiff also submits general information concerning his Empire Blue Cross/Blue Shield health insurance coverage as well as a job listing for a position in defendant's office emphasizing the proximity of defendant's office to New York State.
CPLR 302 (a) (1) provides that "a court may exercise personal jurisdiction over any non-domiciliary . . . [who] transacts any business within the state. . . ." Pursuant to this provision, "where the activities were purposeful and a substantial relationship exists between the transaction and the claim asserted, jurisdiction may be invoked, even if the defendant never physically enters New York" ( Otterbourg, Steindler, Houston Rosen, P.C. v Shreve City Apartments Ltd., 147 AD2d 327, 331). "The test is whether the defendant has engaged in some purposeful activity in New York in connection with the matter in controversy" ( id.). "Purposeful activities are those with which a defendant, through volitional acts, 'avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws'" ( Fischbarg v Doucet, 9 NY3d 375, 380 [2007], quoting McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377, 382). "Although it is impossible to precisely fix those acts that constitute a transaction of business, our precedents establish that it is the quality of the defendants' New York contacts that is the primary consideration" ( id. [citation omitted]).
In addition, CPLR 302(a)(1) is a single act statute and, therefore, proof that even one transaction, if sufficient in quality, occurred in New York can be enough to support the invocation of jurisdiction ( see Catauro v Goldome Bank for Savings, 189 AD2d 747, 748[citations omitted]; see also Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 243 [2005]). However, even multiple transactions in the form of communications between the parties via telephone and facsimile will not suffice to support a finding that New York may exercise jurisdiction over the nonresident defendant where said communications merely constitute negotiations or discussions between the parties with respect to, e.g., the develop nent or maintenance of a business relationship or contractual agreement and do not either encompass, or relate to, any additional substantive transactional activity within the state ( see Professional Personnel Management Corp. v Southwest Medical Associates, 216 AD2d 958, 958 [1995]; see also J.E.T. Advertising Assocs., Inc v Lawn King, 84 AD2d 744, 745, lv dismissed 56 NY2d 648). Moreover, where the services contracted for are to be performed outside of New York, the mere fact that a party to the contract is a New York domiciliary does not suffice to invoke the court's jurisdiction pursuant to CPLR 302(a)(.) ( see Finesurgic v Davis, 148 AD2d 414, 415, lv dismissed in part, denied in part 74 NY2d 781).
In the medical malpractice context, the Appellate Division, Second Department has found, in the case Hermann v Sharon Hospital, Inc. ( 135 AD2d 682) that a plaintiff patient failed to establish an appropriate basis for jurisdiction pursuant to CPLR 302(a)(1) over the defendant, a hospital located in Connecticut, where the hospital did not maintain any business presence in New York and all of the allegedly negligent medical care and treatment took place in Connecticut. In so holding, the court employed the following reasoning:
The [defendant] hospital maintains no offices in New York and conducts its healthcare activities solely in the State of Connecticut. The fact that some of the defendant hospital's physicians are licensed to practice in both New York and Connecticut and that a sizable portion of its patients reside in New York is due to the hospital's close geographical proximity to New York, and not to any significant purported activities by the hospital in New York. In any event, the plaintiff has not set forth any evidence to show that his treatment at the hospital arose out of any transaction of business by the hospital in New York State [citations omitted]).
( id. at 683).Similarly, in O'Brien v Hackensack University Medical Center ( 305 AD2d 199, 200), the Appellate Division, First Department, relying, in part, upon the Hermann case, found that the defendant hospital was entitled to dismissal of the complaint against it due to lack of personal jurisdiction in a New York court, based upon the following facts:
Plaintiff's decedent, a Bronx resident. . . was treated at defendant Hackensack University Medical Center. . . . Defendant's principal place of business is in New Jersey, is not licensed to do business in New York, maintains no office or other place of business in New York, has no New York mailing address or any New York telephone number, has no agents or representatives or bank accounts in New York, pays no New York taxes and files no New York tax returns, and neither owns, leases, uses nor possesses any New York real estate. The purported New York contacts are that defendant solicits patients that reside in New York and, in fact, solicited decedent. Plaintiff also asserts that defendant has an affiliation with New York's Einstein Hospital in which regard referrals are made to New York doctors for laboratory work and examinations, and that defendant purportedly participates in studies involving New York residents. With regard to plaintiff's decedent, plaintiff contends that decedent was prescribed chemotherapy by one of defendant's physicians, which was administered at Einstein in New York, and that treatment continued by telephone calls, mail and fax between defendant's physicians in New Jersey and New York physicians. However, no allegations are made of any financial connection between the institutions arising out of such referrals such as would establish that defendant was providing goods or services within New York.
Based upon such facts, that court determined that the "mere solicitation of business within the state does not constitute the transaction of business in the state, unless the solicitation in New York is supplemented by business transactions occurring in the state" and that the case at bar "really amount[ed] to treatment of New York residents in New Jersey" ( id. at 201-202). Accordingly, the court found that the relevant facts supported a finding that the defendant had not transacted business in New York connected to its complained-of medical treatment of plaintiff in New Jersey and, accordingly, failed to present a proper case for the invocation of New York jurisdiction over the defendant hospital ( id. at 201-202).
At least one New York court, however, has recognized another potential avenue for plaintiff's seeking to demonstrate that a defendant physician possesses the requisite business transactional relationship to New York in order to render him or her subject to suit in that forum. Unlike the O'Brien and Hermann cases, in which the Appellate Division apparently was not called upon to review the impact of contractual arrangements between an out-of-state physician and a New York-based insurance provider, health maintenance organization or other company or organization engaged in assisting the plaintiff pay for his or her health care, (and, the court notes, it is also not aware of any other conclusive Appellate Division or Court of Appeals authority on this issue, aside from the following case), in McLenithan v Bennington Community Health Plan ( 223 AD2d 777, 778, l v dismissed 88 NY2d 1017, decided by the Appellate Division, Third Department, the court directly addressed the issue of whether jurisdiction over the defendant Vermont doctor was properly exercised pursuant to CPLR 302 (a) (1) where the physician in question did not treat patients in New York and limited his medical practice solely to Vermont, but had nonetheless contracted with a New York-based HMO to provide medical care and treatment to the HMO's subscribers who were mostly New York residents. The court determined that New York jurisdiction pursuant to CPLR 302 (a)(1) was indeed appropriate under the circumstances. In so holding, the court determined the following:
The [defendant doctor] has clearly interjected himself into New York's service economy via his contract with [the subject HMO], which carries with it significant contacts with New York residents and [the HMO]. [The doctor] nevertheless maintains that he is not subject to jurisdiction as there is no substantial relationship between the [HMO] contract and plaintiffs' causes of action [sounding in medical malpractice]. We disagree since his treatment of the infant was rendered in accordance with the [HMO] contract which required him to provide medical services to [the HMO] subscribers. Therefore, in view of this and because [the doctor's] entry into New York's service economy via the [HMO] contract was purposeful and significant, we find that he is subject to jurisdiction under CPLR 302 (a)(1). Requiring him to defend himself in New York will not offend due process, because, by actively seeking New York residents as patients, he should have reasonably expected that he would be required to defendant his actions here [citation omitted]).
"Finally, it is well established that the situs of the injury is the location where the event giving rise to the injury occurred, and not where the resultant damages occurred. In a medical malpractice case, the injury occurs where the malpractice took place" [and, therefore,] CPLR 302(a)(3) is inapplicable as a basis for jurisdiction" if the alleged malpractice did not occur in New York ( see O'Brien, 305 AD3d at 202; see also Carte v Parkoff, 152 AD2d 615, 616; Hermann, 135 AD2d at 683).
CPLR 302 (a) (3) (I) and (ii) provides that a New York court may exercise personal jurisdiction over a non-domiciliary where said non-domiciliary:
3. 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 form goods used or consumed or services rendered, in the state, or
(ii) experts or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce[.]
In the instant case, the court denies the instant motion to dismiss without prejudice to renewal after further discovery concerning the contractual relationship, if any, and the nature and scope of same, in existence between defendant and plaintiff's health insurer, Empire Blue Cross/Blue Shield. As described in the affidavits submitted by both plaintiff and defendant, the court finds that the alleged "business transactions" allegedly undertaken by defendant in New York State are insufficient under both the Hermann and O'Brien cases to confer New York jurisdiction over him pursuant to the long arm statute. It is undisputed that the defendant resides, practices medicine and is licensed as a physician in New Jersey. It is also unrefuted that he does not have hospital privileges in New York, does not have an office in New York, does not lease, use, or possess real property in New York, does not possess a New York address, phone number or motor vehicle license and doe not pay taxes in New York or vote in New York. Moreover, all of his care and treatment of plaintiff took place in New Jersey.
Plaintiff primarily bases his jurisdictional arguments on his own residence in New York and defendant's knowledge of same, the defendant's advertised and actual proximity to New York, his possession of a New York medical license and communications by telephone and mail which allegedly occurred between defendant's office and plaintiff. Such communications were admittedly made largely for purposes of scheduling appointments and were not related to the substantive treatment rendered to plaintiff out of which his present medical malpractice cause of action arose. The only conversation alleged that is arguably construed as one related directly to plaintiff's treatment is one in which defendant allegedly "implored" plaintiff to continue treating with him; however, such conversation purportedly occurred after such treatment already had commenced and, therefore, at most, merely constitutes the solicitation of a continuing physician/patient relationship already based solely within the State of New Jersey. Such de minimus, non-substantive contacts with New York on the part of defendant, largely unrelated to the nature and scope of the actual care and treatment rendered to plaintiff in New Jersey, do not suffice to demonstrate that the defendant transacted business in New York as envisaged by the requirements of CPLR 302 (a)(1). In addition, as the situs of the alleged malpractice was the State of New Jersey, and not New York, New York jurisdiction cannot be invoked pursuant to CPLR 302 (a)(3) ( see id. at 202; see also Carte, 152 AD2d at 616; Hermann, 135 AD2d at 683).
The court notes that defendant argues that said rule has been impliedly overruled by the Court of Appeals in Ingraham v Carroll, 90 NY2d 592 [1997], wherein the Court analyzed a non-domiciliary personal jurisdiction case under CPLR 302 (a) (3), focusing much of their determinations on the prongs established by CPLR 302 (a)(3) (I) and (ii). However, the court in that case merely took an "assuming but not deciding" approach to the situs of the injury in order to reach the more compelling arguments presented under sections (I) and (ii) of CPLR 302 (a) (3). Therefore, given that the Court never reached or decided the question of where the medical malpractice injury occurred in Ingraham for purposes of CPLR 302 (a) (3), such case cannot be deemed to overrule the well-established precedent found in cases such as O'Brien, Hermann and Carte, as cited to herein.
The court nonetheless finds dismissal on the basis of lack of personal jurisdiction unwarranted at this juncture given the unrefined allegation of plaintiff that defendant is a participating provider in a New York-based health insurance plan, Empire Blue Cross/Blue Shield, pursuant to which he gained access to plaintiff, a New York resident, as a patient and also received payment for his treatment of plaintiff. Although defendant avers that he is not a member of any New York-based HMO, it is not necessarily the nomenclature assigned to, or structure of, the health plan in question with which the court is concerned but, rather, whether the agreement or contractual relationship between defendant, as a participating provider, and plaintiff's health insurance company demonstrates that defendant "has clearly interjected himself into New York's service economy via [said] contract [or agreement]. . . which carries with it significant contacts with New York residents" ( see McLenithan, 223 AD2d at 778). Absent further discovery concerning the nature of the contractual agreement or arrangement between BlueCross/Blue Shield and the defendant with respect to his "participating provider" status, the court is constrained from determining whether such agreement or arrangement would qualify as a business transaction, as construed by the court in the McLenithan case, sufficient to trigger long-arm jurisdiction under CPLR 301 (a)(1).
As a result, the court denies defendant's motion to dismiss plaintiff's complaint on the ground of lack of personal jurisdiction, without prejudice to renew such motion upon completion of discovery related to the agreement or arrangement, contractual or otherwise, if any, between Blue Cross/Blue Shield, plaintiff's health insurance provider, and the defendant.
The foregoing constitutes the decision and order of the court.