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SANDERS v. WILTEMP CORP.

January 19, 1979

Roy SANDERS, Plaintiff,
v.
WILTEMP CORPORATION, d/b/a Brookdale-On-The-Lake, Defendant



The opinion of the court was delivered by: TENNEY

The plaintiff has brought an action to recover for personal injuries allegedly sustained while he was vacationing at a Pennsylvania resort. The defendant, Wiltemp Corporation, is a citizen of Pennsylvania and owner of the resort styled "Brookdale-On-The-Lake." For convenience, the Court will refer to the defendant as "Brookdale." Brookdale has now moved for dismissal of the complaint, alleging lack of in personam jurisdiction. Fed.R.Civ.P. 12(b)(2). The plaintiff has cross-moved for an order of attachment to establish jurisdiction quasi-in-rem in the event that no in personam jurisdiction is found. For the following reasons, both motions are granted.

Jurisdictional Facts

It is undisputed that the defendant corporation is not qualified to do business in New York, and that it does not now nor did it at the time of the alleged accident maintain employees, an office, or a telephone number in New York. It does not own real property here, nor does it execute contracts for room reservations here. It does attract a number of guests from New York, largely via advertisements in New York newspapers. For a period of approximately six months during the year preceding the accident, it had a contract with a New York travel agent, Alexander Associates ("Alexander"), to place these ads. Alexander also accepted reservations and deposits for the resort, and forwarded the latter to Brookdale in groups, using its own checks. The relationship with Alexander terminated on November 13, 1977; the mishap occurred on December 31, 1977. The plaintiff did not use Alexander to book his vacation at Brookdale; he made his reservation by phone to Pennsylvania. However, he maintains that he chose Brookdale in response to the New York newspaper publicity, although it is unclear who placed the particular ad or ads which precipitated the visit; since September 1977 the defendant has also used a Pennsylvania advertising agency to perform this service. *fn1"

 The defendant also generates tourist interest in New York through its relationship with the Pocono Mountain Vacation Bureau (also of Pennsylvania), a promotional organization which mentions Brookdale in its literature, and through promotional material circulated by the Automobile Association of America. Other contacts with the state are alleged in the defendant's use of independent travel agents in New York to accept guest reservations for Brookdale, and in Brookdale's use of a New York printer to produce its own advertising brochure, which is regularly mailed to New York recipients. The production of this brochure is overseen by Brookdale's president in visits to the New York printer about twice a year.

 Discussion

 In a diversity action, the Court must determine its jurisdiction by reference to the law of the forum state. Arrowsmith v. United Press Int'l, 320 F.2d 219 (2d Cir. 1963). The plaintiff claims that the defendant is amenable to suit in New York under both the "long-arm" statute, N.Y.C.P.L.R. § 302, and by traditional notions of "doing business" in the state, N.Y.C.P.L.R. § 301. Neither claim is supportable. The long-arm argument can be disposed of summarily, since the claim sued upon simply does not fit within the language of the statute. Section 302(a) states in pertinent part that

 
(as) to a cause of action Arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nondomiciliary . . . who in person or through an agent:
 
1. transacts any business within the state; or
 
3. commits a tortious act without the state causing injury to person or property within the state . . . .

 (Emphasis added.)

 Subsection (a)(1) certainly cannot provide a jurisdictional predicate on these facts, for the injury did not spring from a business transaction in New York. The plaintiff called Pennsylvania from New York, spurred by an advertisement in a New York newspaper. Assuming arguendo that this was a commercial transaction with a relationship to this state, it lacks any causal relationship to the alleged breach of duty that occurred on Brookdale's property. On facts such as these the New York Court of Appeals has held section 302(a)(1) inapplicable, stating that the out-of-state tort arises only incidentally from the in-state transaction of business. See Frummer v. Hilton Hotels Int'l, Inc., 19 N.Y.2d 533, 281 N.Y.S.2d 41, 227 N.E.2d 851, Cert. denied, 389 U.S. 923, 88 S. Ct. 241, 19 L. Ed. 2d 266 (1967); J. McLaughlin, Practice Commentary C302:2, at 63-65, N.Y.C.P.L.R. § 302 (7B McKinney 1972).

 Subsection (a)(3) is also of no use to plaintiff, for it is settled law that to suffer in New York the residual effects of injury sustained elsewhere is not synonymous with sufferance of injury "within the state" in the contemplation of section 302(a)(3). That subsection

 
"looks to the imparting of the original injury within the State of New York and not resultant damage . . . . To hold otherwise would open a veritable Pandora's box of litigation subjecting every conceivable prospective defendant involved in an accident with a New York domiciliary to defend actions brought against them in the State of New York."

 Kramer v. Hotel Los Monteros S.A., 57 A.D.2d 756, 394 N.Y.S.2d 415, 416 (1st Dep't 1977), Quoting Black v. Oberle Rentals, 55 Misc.2d 398, 400, 285 N.Y.S.2d 226, 229 (Sup.Ct.1967); See American Eutectic Welding Alloys Sales Co. v. Dytron Alloys Corp., 439 F.2d 428, 434 (2d ...


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