The opinion of the court was delivered by: ELFVIN
Plaintiff has alleged that the death of her daughter Sonya July 22, 1977 while participating in a mountain climbing exercise sponsored by defendant was due to its negligence. The matter is properly before the Court pursuant to diversity jurisdiction. Presently pending are defendant's motions to set aside service of process pursuant to Fed.R.Civ.P. rule 12(b)(5), to dismiss for lack of pesonal jurisdiction pursuant to rule 12(b)(2) or, alternatively, to transfer the case to the United States District Court for the District of Colorado pursuant to 28 U.S.C. § 1404(a).
Service of process in this matter was made by hand delivery to one Hugh Downey by Carl Pinson, a Denver Deputy Sheriff, April 24, 1978. New York's Civil Practice Law and Rules ("CPLR") § 311 provides in relevant part:
"Personal service upon a corporation * * * shall be made by delivering the summons as follows:
1. upon any domestic or foreign corporation, to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service * * *."
Defendant argues that Downey, who was listed in the 1978 tax return of Colorado Outward Bound School, Inc. ("COBS") as "administrator" (see Exhibit A to May 11, 1984 affidavit of Kevin J. Sullivan, Esq.), did not have appropriate authority to receive service. This argument is technical in nature and it is clear from the facts, including the lack of any indication that Downey attempted to refuse service, that
"objectively viewed, in the light of the circumstances, the service made was calculated to give the corporation fair notice and, in fact, resulted in immediate redelivery of the summonses to a Proper person. De Vore v. Osborne, 78 A.D.2d 915, 432 N.Y.S.2d 919, 921 (3d Dep't. 1980).
Accordingly, service must be sustained.
The question of personal jurisdiction in this case is also governed by New York law. See Marine Midland Bank, N.A. v. Miller, 664 F.2d 899 (2d Cir. 1981); Arrowsmith v. U.P.I., 320 F.2d 219 (2d Cir. 1963) (en banc). The facts of the case preclude resort to the "long-arm statute" embodied in CPLR § 302 to obtain jurisdiction over "COBS", a Colorado corporation. Directly on point is Diskin v. Starck, 538 F.Supp. 877 (E.D.N.Y. 1982), in which plaintiffs -- two citizens of New York -- complained of tortious injury to their children while said children had been enrolled in a summer camp in Vermont. The court held that personal jurisdiction in New York could not be obtained over the Vermont defendants under CPLR § 302(a)(3)
"Although this section requires the occurrence of tortious conduct outside the state, its essential predicate is that the injury giving rise to the plaintiffs' claim occur within the state. See Kramer v. Hotel Los Monteros, S. A., 57 A.D.2d 756, 757, 394 N.Y.S.2d 415, 416 (1st Dep't. 1977); Black v. Oberle Rentals, Inc., 55 Misc.2d 398, 400, 285 N.Y.S.2d 226, 228-29 (Sup.Ct. Onondaga Co. 1967); see also Spectacular Productions, Inc. v. Radio Station WING, 272 F.Supp. 734, 736-37 (E.D.N.Y. 1967)." Id. at 879.
Similar facts are presented by the case at bar in which both the alleged tortious conduct and the death of Sonya Ross occurred in Colorado. As in Diskin v. Starck, supra
"[P]laintiffs cannot sustain jurisdiction under § 302(a)(3) merely by showing that as domiciliaries of this state, they suffered further damage (either economic or physical), on account of the earlier injuries sustained outside the state. See Kramer v. Hotel Los Montros, supra, 57 A.D.2d at 757, 394 N.Y.S.2d at 416; Black v. Oberle Rentals, supra, 55 Misc.2d at 400, 285 N.Y.S.2d at 228-29." Ibid.
Nor does CPLR § 302(a)(1)'s conferral of jurisdiction over a non-domiciliary who "transacts business within the state or contracts anywhere to provide goods and services in the state" avail plaintiff in this case. Again, as was stated in Diskin v. Starck, supra,
"The courts in New York consistently have held that injuries sustained while participating outside the state in recreational activities advertised and contracted for within the state, bear too remote a relationship to the advertising and contractual activity claimed to be the transaction of business in the state to warrant a conclusion that the injuries arose from the in-state activity. See Noble v. Singapore Resort Motel of Miami Beach, 21 N.Y.2d 1006, 1008, 290 N.Y.S.2d 926, 927, 238 N.E.2d 328, 329 (1968) (per curiam); Meunier v. Stebo, Inc., 38 A.D.2d ...