Shelbourne and Rettig are licensed to practice medicine in the
State of Indiana. Neither is licensed nor has ever been licensed
in the State of New York. Affidavit of K. Donald Shelbourne,
M.D., dated September 10, 1990, ¶ 2; Affidavit of Arthur C.
Rettig, M.D., dated September 10, 1990, ¶ 2. Both doctors
maintain offices for the practice of medicine in the City of
Indianapolis; neither has an office in New York. Shelbourne
Affidavit, ¶ 3; Rettig Affidavit, ¶ 3. The contracts for the
doctors' services have been executed in Indiana. Shelbourne
Affidavit, ¶ 10; Rettig Affidavit, ¶ 10.
The doctors' only contacts with New York are annual trips to
Buffalo when the Colts play the Buffalo Bills. According to their
affidavits, the doctors have only performed medical services for
Colts team members while in New York, and did not perform any
medical services for the plaintiff while in New York. The doctors
contend that their contacts to New York are not sufficient to
establish personal jurisdiction over them, and that the
plaintiff's claims are not related to the minimum contacts they
do have with New York.
The plaintiff argues that Shelbourne and Rettig maintain
sufficient contacts with New York to be "present" in New York for
purposes of personal jurisdiction under CPLR § 301. The plaintiff
also contends that Shelbourne and Rettig have transacted business
within New York, and have contracted outside the state to supply
services within the state, conferring personal jurisdiction under
CPLR § 302(a). As examples of Shelbourne's and Rettig's
connections to New York, plaintiff notes that the physicians are
required to organize and coordinate medical services with a team
of referral physicians, dentists and surgeons to treat Colts
players at all away games, including the games in Buffalo (Team
Physicians Agreements, ¶¶ 1.2 and 1.3(c)); that in the 1989 Team
Physicians Agreement, the doctors were required to obtain
additional medical malpractice insurance to cover services
rendered to Colts players outside the State of Indiana, including
in New York (1989 Team Physicians Agreements, ¶ 4.1); and that
the doctors derive revenue from performing services in New York,
in that they receive a fixed seasonal fee for their services
broken down into weekly fees.
In order to be subject to jurisdiction under CPLR § 301, the
defendants must be "doing business" in New York, as established
by their contacts to the state. A defendant "is . . . present in
New York and subject to personal jurisdiction with respect to any
cause of action, related or unrelated to the New York contacts,
if it does business in New York `not occasionally or casually,
but with a fair measure of permanence and continuity.'" Hoffritz
for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58 (2d Cir.
1985) (quoting Tauza v. Susquehanna Coal Co., 220 N.Y. 259,
267, 115 N.E. 915, 917 (1917)); see also Laufer v. Ostrow,
55 N.Y.2d 305, 449 N.Y.S.2d 456, 434 N.E.2d 692 (1982). It is hard
to imagine how Shelbourne's and Rettig's contacts to New York
could be more occasional or casual. They appear in New York once
a year, and do not solicit business from or do business with New
York residents nor come into contact with any New Yorkers other
than the Buffalo Bills' medical staff or the staff of local
hospitals. The doctors are not "doing business" in New York, and
therefore are not "present" for purposes of jurisdiction under
CPLR § 301.
In addition, there is some question whether jurisdiction may be
had over an individual, as opposed to a corporation, under CPLR §
301, if there is not some nexus between the individual's
activities in New York and the plaintiff's claims. In ABCKO
Indus., Inc. v. Lennon, 52 A.D.2d 435, 384 N.Y.S.2d 781 (1st
Dep't 1976), the court held that where jurisdiction over an
individual is obtained under CPLR § 301 because the individual is
"doing business" within the state on a continuing basis,
jurisdiction will also attach to causes of action that did not
arise in New York. Id. at 440, 384 N.Y.S.2d 784. ABCKO
involved a suit by a theatrical management company to recover
moneys loaned to former members of the Beatles and their related
record companies. However, the Second Department, Appellate
Division, later questioned ABCKO's broad application of CPLR
§ 301, and stated that, even if it was correctly decided, "it
appears that that case has no application to cases . . . where
the cause of action asserted against one who is allegedly `doing
business' in the state is not commercial in nature." Nilsa B.B.
v. Clyde Blackwell H., 84 A.D.2d 295, 306, 445 N.Y.S.2d 579, 587
(2d Dep't 1981).
Plaintiff also contends that jurisdiction may be exercised
under CPLR § 302(a)(1), which provides:
(a) Acts which are the basis of jurisdiction. As to
a cause of action arising from any of the acts
enumerated in this section, a court may exercise
personal jurisdiction over any non-domiciliary . . .
who in person or through an agent:
1. transacts any business within the state or
contracts anywhere to supply goods or services in the
state. . . .
It is clear from the language of CPLR § 302(a)(1) that it is not
sufficient that the defendant has either transacted business or
contracted to supply goods or services in the state; it is also
required that the plaintiff's cause of action arise from that
act. McGowan v. Smith, 52 N.Y.2d 268, 272, 437 N.Y.S.2d 643,
645, 419 N.E.2d 321, 323 (1981). The plaintiff must accordingly
establish some "articulable nexus" between the business
transacted and the cause of action sued upon. Id.
The plaintiff argues that the business transacted, or the
services supplied, by the doctors in New York were part of their
medical practice. Plaintiff asserts that his claims arise out of
the doctors' practice of medicine, and therefore satisfy the
jurisdictional requirements of section 302(a)(1). The plaintiff
relies heavily on Wurtenberger v. Cunard Line Ltd., 370 F. Supp. 342
(S.D.N.Y. 1974), in which a cruise ship's physician who was
not a resident of New York, and who was sued for medical
malpractice for incidents which did not occur in New York, was
nevertheless found to be subject to personal jurisdiction under
CPLR § 302(a)(1). The court found preliminarily that the
physician had "transacted business" within the state since,
although he was not licensed to practice medicine in New York and
claimed to have only been in New York on four occasions, he was a
member of the ship's crew when it departed New York and when it
returned to New York, and presumably practiced medicine while the
ship was in New York waters. Id. at 344. With respect to the
"nexus" requirement of section 302(a)(1), the court determined
that the physician was present on the ship when passengers
boarded in New York, and effectively held himself out as a
qualified doctor who would treat medical problems on the cruise.
Thus, some of the ship's passengers, many of whom were
foreseeably New York residents, decided to forego other medical
services while at sea in reliance on the physician's competence.
Id. at 345. The court reasoned that "[t]he alleged subsequent
malpractice in the course of the cruise, therefore, while it did
not occur in New York, may be said to have arisen out of [the
doctor's] `transaction of business' in New York." Id.
Wurtenberger is distinguishable from the instant case. The
plaintiff here was presumably a resident of Indiana who received
treatment from the defendant physicians in Indiana.*fn8 The
doctors did not, while in New York, represent to New York
residents, including the plaintiff, that they were competent
physicians available to perform medical services for them.
Moreover, the plaintiff was not a passenger on the Colts'
"cruise" to Buffalo in the year he was injured. His injury
occurred, and was treated, in Indiana. He was traded before the
regular playing season began.
Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55 (2d
Cir. 1985), on which plaintiff also relies, is easily
distinguishable. In Hoffritz, the plaintiff corporation's cause
of action arose out of the breach of a franchise agreement which
was entered into outside of New York and breached outside of New
the court found that meetings in New York between representatives
for the plaintiff and defendant at "frequent intervals over
approximately a ten-year period" at which franchise business was
discussed established the necessary nexus for jurisdiction. The
situation in Hoffritz is not similar to the circumstances
Plaintiff's causes of action must be directly and proximately
related to the business transacted in New York in order to
provide a basis for section 302(a)(1) jurisdiction. Conversely, a
cause of action which bears only a remote and indirect
relationship to the New York transaction will not support
jurisdiction. Rene Boas & Assoc. v. Vernier, 22 A.D.2d 561,
257 N.Y.S.2d 487 (1st Dep't 1965). Plaintiff's claims are not
remotely related to the doctors' activities in New York.
Although it is unnecessary to decide this point since
plaintiff's claims do not bear a relationship to the doctors'
activities in New York, it could also be argued that the doctors
did not transact business or supply services in Buffalo. As
previously stated, the doctors have no contact with New Yorkers
while in Buffalo, other than with Buffalo Bills' medical staff to
coordinate their services. Their purpose for being in New York is
not to solicit or transact business, but to provide services to
members of the Colts, which have already been contracted for in
The motion by defendant Indianapolis Colts to dismiss plaintiff
Timothy Sherwin's claims for lack of subject matter jurisdiction
is granted. Litigation of plaintiff Jannice Sherwin's claim for
loss of consortium is stayed pending arbitration. The motion by
defendants Shelbourne and Rettig to dismiss for lack of personal
jurisdiction is granted.
IT IS SO ORDERED.