business' for CPLR 302(a(1) purposes." Id. at 367. Here, however, the choice of law clause is not sufficient to tip the balance in favor of finding jurisdiction.
Plaintiff also points to meetings in New York between Lark employees and six other customers, and the fact that Lark is maintaining an unrelated lawsuit in the Southern District of New York. Insofar as these contacts are not related in any way to the underlying cause of action, they are irrelevant for purposes of determining whether there is personal jurisdiction under CPLR § 302(a)(1) because the lawsuit does not "arise from" these contacts. See McGowan, 437 N.Y.S.2d at 645.
2. Transient Jurisdiction
As another basis under New York law for personal jurisdiction over Lark, plaintiff argues that because Shea was served personally in New York, this Court has "transient" jurisdiction over Lark. In Burnham v. Superior Court, 495 U.S. 604, 622, 109 L. Ed. 2d 631, 110 S. Ct. 2105 (1990), a plurality of the Supreme Court recently reaffirmed the ancient principle that transient jurisdiction -- where an individual defendant is served while temporarily present in the state -- allows suit even on matters unrelated to the defendant's presence in the state. Burnham did not specifically address whether transient jurisdiction is applicable to a corporation, as opposed to an individual, although the plurality did remark that corporations "have never fitted comfortably in a jurisdictional regime based primarily upon 'de facto power over the defendant's person.'" Id. at 610 n.1 (quoting International Shoe, 326 U.S. at 316).
I need not reach the issue of whether transient jurisdiction over corporations comports with due process, since I hold that New York law does not provide for transient jurisdiction to be had over corporations where the corporation is not continuously and systematically "doing business" in New York.
New York's CPLR does not explicitly provide for transient jurisdiction over either corporations or individuals. Plaintiff cites CPLR § 301 in support of its argument that New York law recognizes transient jurisdiction over corporations. Section 301 states that "[a] court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore." Thus, CPLR § 301 preserves any basis of personal jurisdiction exercised by New York courts prior to the passage of the CPLR in 1962.
Plaintiff argues that prior to the enactment of CPLR § 301, in Robert Dollar Co. v. Canadian Car & Foundry Co., 220 N.Y. 270, 115 N.E. 711 (N.Y. 1917), the New York Court of Appeals extended New York personal jurisdiction over corporations to the limits of due process. Accordingly, plaintiff argues, that after International Shoe and Burnham, all that is required to establish jurisdiction over a foreign corporation in New York is (1) service on a corporate managing agent in New York pursuant to CPLR § 311; and (2) minimum contacts sufficient to establish due process.
The New York Court of Appeals has held, however, that pre-1962 New York law, incorporated into current law by CPLR § 301, did not adopt the International Shoe test as the test for jurisdiction over foreign corporations. Rather, the pre-CPLR rule for jurisdiction over foreign corporations required that the corporation be "doing business" in New York. In Simonson v. International Bank, 14 N.Y.2d 281, 251 N.Y.S.2d 433, 200 N.E.2d 427 (N.Y. 1964) (Fuld, J.), the Court of Appeals was faced with the issue of whether the CPLR, newly-enacted in 1962, which established long-arm jurisdiction in New York, could be applied retroactively to a corporation served under the old system. In Simonson, a member of the foreign corporation's board of directors was personally served in New York in an action relating to a contract allegedly made by the foreign corporation in New York. The Court held that
Under our decisional law prior to the adoption of the CPLR, a foreign corporation, not authorized to do business in this State, was held amenable to local suit only if it was engaged in such a continuous and systematic course of "doing business" here as to warrant a finding of its "presence" in this jurisdiction.
251 N.Y.S.2d at 436. The Court held that "the doing business test was initially dictated by the due process requirements of the Federal Constitution as formerly interpreted by the United States Supreme Court." Id. Contrary to plaintiff's arguments, the Court of Appeals made clear that New York law had not expanded along with the contours of due process as interpreted in International Shoe and McGee v. International Life Ins. Co., 355 U.S. 220, 2 L. Ed. 2d 223, 78 S. Ct. 199 (1957).
While those decisions broadly expanded the power of this State to subject foreign corporations and nonresident individuals, not "present" in the forum, to the personal jurisdiction of its courts, the Legislature took no steps to exercise that power until the enactment of the CPLR. The courts likewise continued to apply the traditional "doing business" test though there were occasional suggestions that that standard might be relaxed in accordance with the later Supreme Court decisions.