The opinion of the court was delivered by: COOPER
Defendant moves to dismiss plaintiff's complaint: (1) pursuant to the order of Judge Bryan dated June 30, 1965; or (2) on the ground that this Court lacks jurisdiction over the person of defendant; or (3) on the ground of improper venue.
The order entered by Judge Bryan on June 30, 1965 upon consent of the parties is not dispositive of the issues now before us. The filed papers indicate that the prior complaint was dismissed for improper service of process; the question whether defendant is subject to the jurisdiction of this Court was not then presented for judicial determination or consented to.
This being a diversity action, our jurisdiction over defendant, a foreign corporation, is determined by the law of the State of New York. Arrowsmith v. United Press International, 320 F.2d 219, 6 A.L.R.3d 1072 (2d Cir. 1963). Accordingly, plaintiff could establish this Court's jurisdiction by showing:
(1) Defendant is "doing business" in New York. N.Y.Civil Practice Law and Rules (hereinafter CPLR) § 301, or
(2) The cause of action arose from a tortious act committed by defendant in New York. CPLR § 302(a)(2) or
(3) The cause of action arose from defendant's transaction of business in New York. CPLR § 302(a)(1).
On the papers before us it is clear that defendant is not "doing business" in New York. Ideal Toy Corp. v. Kaysam Corp. of Amer., 27 F.R.D. 10 (S.D.N.Y.1961); Irgang v. Pelton & Crane Co., 42 Misc.2d 70, 247 N.Y.S.2d 743 (1964); Harmony Music Center v. Railway Express Agency, 35 Misc.2d 18, 230 N.Y.S.2d 50 (1961); See Lillibridge, Inc. v. Johnson Bronze Co., 220 App.Div. 573, 222 N.Y.S. 130 (1927), aff'd 247 N.Y. 548, 161 N.E. 177 (1928); Hamlin v. G. E. Barrett & Co., 246 N.Y. 554, 159 N.E. 648 (1927); Miller v. Surf Properties, Inc., 4 N.Y.2d 475, 176 N.Y.S.2d 318, 151 N.E.2d 874 (1958). For a foreign corporation to be "doing business" here, it must engage in activities which are systematic, regular and continuous, constituting a fairly substantial part of its corporate business. Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915 (1917).
Plaintiff's allegations of negligence and breach of warranty arising out of the manufacture of defendant's Engine Test Trailer and Stand (hereinafter Engine) in Pennsylvania are not allegations of tortious acts committed in New York within the meaning of CPLR § 302(a)(2). Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., (Feathers v. McLucas) 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68 (1965).
Although CPLR § 302 has been amended to include tortious acts committed without the state which cause injury in New York (CPLR § 302(a)(3) effective September 1, 1966), that amendment does not apply to this case: Plaintiff served defendant with a summons and complaint on July 28, 1966. Without a clear expression of legislative intent, the amendment can "* * * not operate, by relation back, to validate an attempted service of process which was jurisdictionally defective when made * * *" Simonson v. International Bank, 14 N.Y.2d 281, 290, 251 N.Y.S.2d 433, 440, 200 N.E.2d 427, 432 (1964).
The sole allegation in the complaint that would support jurisdiction under CPLR § 302(a)(2) is that defendant negligently operated, managed, maintained, controlled and supervised the testing of its Engine in New York. The complaint is not verified and this allegation is not supported by any affidavit. For this reason we do not have sufficient information of an accredited ...