Moreover, proof of a single transaction in New York could satisfy the requirements of § 302(a)(1). Parke-Bernet Galleries, Inc. v. Franklyn, 26 N.Y.2d 13, 308 N.Y.S.2d 337, 339, 256 N.E.2d 506 (Ct. App. 1970) (citing authorities).
B. New York Activities Unrelated to the Instant Claim
Although, as noted above, Rudox cites seven activities by Horlick that allegedly connect it to New York, Horlick argues that each of these activities is either unsubstantial, unrelated to the disputed contract, or completely unrelated to New York. Horlick is correct as to four of these seven activities.
Horlick's advertising in The Thomas Register, its assembly of three motor generator sets for Rudox and its billing of Unisys Corp. for a diesel generator are not related to the instant dispute and are therefore irrelevant to a claim for jurisdiction under § 302(a)(1). See Hoffritz for Cutlery, 763 F.2d at 59 (2d Cir. 1985); McGowan, 437 N.Y.S.2d at 645; see also Rolls-Royce Motors, Inc. v. Charles Schmitt & Co., 657 F. Supp. 1040 (S.D.N.Y. 1987) (advertising in New York publications directed at national audience held insufficient for exercise of jurisdiction); Murdock v. Arenson Intern. USA, Inc., 157 A.D.2d 110, 554 N.Y.S.2d 887, 889 (1st Dep't 1990) ($ 9,000 annual sales in New York, representing 0.05% of total sales, does not rise to level of doing or soliciting business); Muollo v. Crestwood Village, Inc., 155 A.D.2d 420, 547 N.Y.S.2d 87 (2d Dep't 1989) (advertisement in New York newspaper and filing of prospectus with New York Attorney General held insufficient to establish jurisdiction).
Similarly, Rudox's allegation that Horlick "reached out" beyond Massachussetts to negotiate a contract with Rudox is not relevant to a § 302(a)(1) claim. See Ferrante Equipment Company v. Lasker-Goldman, 26 N.Y.2d 280, 309 N.Y.S.2d 913, 918, 258 N.E.2d 202 (Ct. App. 1970) ("mere receipt by a non-resident of benefit or profit from a contract performed by others in New York is clearly not . . . sufficient to confer jurisdiction"); Spectra Products v. Indian River Citrus Specialties, Inc., 144 A.D.2d 832, 534 N.Y.S.2d 570, 572 (3rd Dep't 1988) (same).
C. New York Meeting Related to the Instant Claim
In contrast, Rudox's assertion that Paul Horlick, then the president of Horlick, attended and actively participated in two days of meetings with representatives of NYCH&HC in New York in September, 1990 regarding the motor generator sets that are the subject of this litigation could satisfy the requirements of § 302(a)(1). Horlick argues that this New York meeting was insubstantial: it took place almost four years after the delivery of the motor generator sets, it lasted only 30 minutes, and Paul Horlick was silent throughout. Holick relies on McKee Electric v. Rauland-Borg. Corp., 20 N.Y.2d 377, 283 N.Y.S.2d 34, 229 N.E.2d 604 (Ct. App. 1967) (4-3 decision), in which the Court of Appeals held that a visit to New York for one day by the manager and sales representative of the non-domiciliary defendant in relation to alleged problems with its goods is an insufficient contact on which to base jurisdiction.
Id. at 37-38. Furthermore, Horlick cites Presidential Realty Corp. v. Michael Square West, 44 N.Y.2d 672, 405 N.Y.S.2d 37, 38, 376 N.E.2d 198 (Ct. App. 1978), in which the Court of Appeals held that the plaintiff's allegations regarding a meeting in New York to modify a contract was insufficient to sustain jurisdiction in the absence of proof regarding the substance of that meeting.
McKee Electric and Presidential Realty, do not, however, negate the fact that the length and substance of the September 1990 meeting(s) may be highly relevant to whether this contact with New York is sufficient to establish jurisdiction. Indeed, the dismissal in Presidential Realty due to lack of proof regarding the substance of the New York meeting only emphasizes the potential importance of such evidence. See CutCo Ind. v. Naughton, 806 F.2d 361, 367-68 (2d Cir. 1986) (two visits to New York for business discussions are sufficient for jurisdiction); Hedlund v. Products from Sweden, Inc., 698 F. Supp. 1087 (S.D.N.Y. 1988) (three New York business meetings are sufficient); Xedit Corp. v. Harvel Ind. Corp., Fidelipac, 456 F. Supp. 725, 728 (S.D.N.Y. 1978) (single New York meeting is transaction of business); Parke-Bernet Galleries, 308 N.Y.S.2d at 339 (single transaction can confer jurisdiction).
"Until an evidentiary hearing is held, [Rudox] need make only a prima facie showing by its pleadings and affidavits that jurisdiction exists. [Moreover,] those documents are construed in the light most favorable to [Rudox] and all doubts are resolved in its favor." CutCo Industries, 806 F.2d at 365 (citations omitted). Accordingly, Horlick's motion to dismiss must be denied at this time.
D. Horlick Contracted to Supply Goods Destined for New York
In addition, Rudox alleges that Horlick knew that the motor generator sets it sold to Rudox were for use at Kings County Hospital in New York. Indeed, Horlick submitted proposals to Rudox that Horlick knew would be passed on to NYCH&HC in order to get final approval for the contract. Therefore, Rudox argues, Horlick is subject to this Court's jurisdiction under § 302(a)(1) because it "contracted to supply goods" within New York. The clause "contracts to supply goods or services within the state" was added to § 302(a)(1) in 1979 in order to extend long-arm jurisdiction to non-domiciliaries who made contracts outside New York with performance to take place in New York. McKinney's Con. Laws of NY, Book 7B, C302:13 (1990); Island Wholesale Wood Supplies, Inc. v. Blanchard Ind., Inc., 101 A.D.2d 878, 476 N.Y.S.2d 192, 194 (2d Dep't 1984).
Horlick argues that because its contract was with Rudox, a New Jersey corporation, and the motor generator sets were picked up by Rudox in Massachussetts, it did not contract to supply goods or services within New York. Horlick relies on Paradise Products Corp. v. Allmark Equipment Co., Inc., 138 A.D.2d 470, 526 N.Y.S.2d 119 (2d Dep't. 1988). In Paradise Products, the president of the plaintiff, a New York corporation, traveled to New Jersey where he purchased a 500 gallon copper kettle from Carmel Equipment Co. ("Carmel"), a New Jersey corporation. In order to avoid a delivery charge, plaintiff arranged to have the kettle picked up and brought to New York. Id. at 120. The court affirmed Carmel's dismissal for lack of personal jurisdiction, holding that "knowledge that a product may be destined for a particular forum is insufficient, in the context of this case, to sustain jurisdiction." Id. The Appellate Division noted that the sale of the kettle was Carmel's only purported contact with New York. Consequently, its "conduct and connections with New York are [not] such that it should reasonably have anticipated being haled into court here." Id. at 121 (citing World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980)); see SBR Realty Corp. v. Pave-Mark Corp., 175 A.D.2d 240, 572 N.Y.S.2d 705, 707 (2d Dep't 1991) (same); Finesurgic Inc. v. Davis, 148 A.D.2d 414, 538 N.Y.S.2d 568, 569 (2d Dep't) (same), appeal dismissed in part and denied in part, 545 N.Y.S.2d 101 (Ct. App. 1989).
In contrast, in Columbus McKinnon Corp. v. China Semiconductor Co., Inc., No. CIV-88-211E, 1989 WL 82455, at *2-3 (W.D.N.Y. May 16, 1990), plaintiff offered two affidavits showing that UMC, a Taiwanese manufacturer of computer chips, knew that chips it sold to another Taiwanese company to be incorporated into computer boards were destined to be shipped to New York. Under those facts, UMC was held subject to the district court's jurisdiction pursuant to the "contracts to supply goods" clause of § 302(a)(1). Id. at *4-5; see Anderson Development Corp. v. Isoreg Corp., 154 A.D.2d 859, 546 N.Y.S.2d 720 (3rd Dep't 1989) (same).
It is difficult to reconcile cases like Paradise Products and SBR Realty with Columbus McKinnon and Anderson Development other than to state that a single contract to supply goods to New York satisfies the requirements of § 302(a)(1) but jurisdiction is proper only if, under the specific facts of the case, the requirements of the Due Process Clause are also satisfied. In Asahi Metal Ind. Co. v. Superior Court, 480 U.S. 102, 94 L. Ed. 2d 92, 107 S. Ct. 1026 (1987) the Supreme Court held that
the placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State. Additional conduct of the defendant may indicate an intent or purpose to serve the market of the forum State, for example, designing the product for the market in the forum State, advertising in the forum State . . . .
Id. at 112.
Accordingly, this Court holds that in the instant case, where Rudox alleges that Horlick not only knew that its motor generator sets, valued at $ 162,320, were destined for New York, but assisted in specially designing those sets and in procuring final approval of the contract by the NYCH&HC, Horlick has supplied goods for New York pursuant to CPLR § 302(a)(1) and has purposefully availed itself of the privilege of conducting activities in New York so as to satisfy the requirements of Due Process.
Accordingly, for the aforementioned reasons, Horlick's motion to dismiss pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure for lack of in personam jurisdiction is denied.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
March 16, 1992