Mejia-Haffner v. Killington, Ltd.

119 A.D.3d 912

990 N.Y.S.2d 561

2014 N.Y. Slip Op. 05522

Claudia MEJIA–HAFFNER, et al., appellants,

v.KILLINGTON, LTD., respondent, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

July 30, 2014.

Gordon & Haffner, LLP, Bayside, N.Y. (Steven R. Haffner, pro se, of counsel), for appellants.

Ryan Smith & Carbine, P.C., Glens Falls, N.Y. (Mark F. Werle of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Grays, J.), dated December 19, 2011, which granted the motion of the defendant Killington, Ltd., for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The plaintiff Claudia Mejia–Haffner and her husband, the plaintiff Steven R. Haffner, enrolled in a ski racing instructional camp operated by Killington/Pico Ski Resort Partners, LLC, sued herein as Killington, Ltd. (hereinafter Killington), at Killington's ski resort in Vermont. The plaintiffs made their reservations through the American Ski Racing Association. While participating in the camp, Mejia–Haffner (hereinafter the injured plaintiff) was injured, and the plaintiffs commenced this action against, among others, Killington.

Killington moved for summary judgment dismissing the complaint insofar as asserted against it on the ground, inter alia, that it was not subject to personal jurisdiction in New York. The Supreme Court granted Killington's motion for summary judgment finding, among other things, that New York did not have jurisdiction over Killington.

“A foreign corporation is amenable to suit in New York courts under CPLR 301 if it has engaged in such a continuous and systematic course of ‘doing business' here that a finding of its ‘presence’ in this jurisdiction is warranted” ( Landoil Resources Corp. v. Alexander & Alexander Servs., 77 N.Y.2d 28, 33, 563 N.Y.S.2d 739, 565 N.E.2d 488, quoting Laufer v. Ostrow, 55 N.Y.2d 305, 309–310, 449 N.Y.S.2d 456, 434 N.E.2d 692;see Cardone v. Jiminy Peak, 245 A.D.2d 1002, 1003, 667 N.Y.S.2d 82;Sedig v. Okemo Mtn., 204 A.D.2d 709, 710, 612 N.Y.S.2d 643). Mere solicitation of business within New York will not subject a defendant to New York's jurisdiction ( see Cardone v. Jiminy Peak, 245 A.D.2d at 1003, 667 N.Y.S.2d 82;Sedig v. Okemo Mtn., 204 A.D.2d at 710, 612 N.Y.S.2d 643). Instead, a plaintiff asserting jurisdiction under CPLR 301 must satisfy the standard of “solicitation plus,” which requires a showing of “ ‘activities of substance in addition to solicitation’ ” ( Arroyo v. Mountain School, 68 A.D.3d 603, 604, 892 N.Y.S.2d 74, quoting Laufer v. Ostrow, 55 N.Y.2d at 310, 449 N.Y.S.2d 456, 434 N.E.2d 692;see Cardone v. Jiminy Peak, 245 A.D.2d at 1003, 667 N.Y.S.2d 82;Sedig v. Okemo Mtn., 204 A.D.2d at 710, 612 N.Y.S.2d 643).

Even assuming that Killington engaged in substantial advertising in New York, as the plaintiffs claim, the plaintiffs have not demonstrated that Killington also engaged in substantial activity within this State sufficient to satisfy the solicitation-plus standard. Contrary to the plaintiffs' contention, this Court's decision in Grimaldi v. Guinn, 72 A.D.3d 37, 49–50, 895 N.Y.S.2d 156 does not stand for the principle that a business's interactive website, accessible in New York, subjects it to suit in this State for all purposes. Instead, the Grimaldi decision stands only for the more limited principle that a website may support specific jurisdiction in New York where the claim asserted has some relationship to the business transacted via the website ( see id.;see also Paterno v. Laser Spine Inst., 112 A.D.3d 34, 973 N.Y.S.2d 681). Here, even Killington's alleged substantial solicitation in New York constitutes no more than solicitation ( see Cardone v. Jiminy Peak, 245 A.D.2d at 1004, 667 N.Y.S.2d 82;see also Arroyo v. Mountain School, 68 A.D.3d at 603–604, 892 N.Y.S.2d 74;Sedig v. Okemo Mtn., 204 A.D.2d at 710, 612 N.Y.S.2d 643;Chamberlain v. Jiminy Peak, 155 A.D.2d 768, 547 N.Y.S.2d 706).

CPLR 302(a)(1), the section of New York's long-arm statute at issue in this case, grants New York courts jurisdiction over nondomiciliaries when the action arises out of the nondomiciliaries' “transact [ion of] any business within the state or contract [ ] ... to supply goods or services in the state” (CPLR 302[a][1] ). Pursuant to CPLR 302(a)(1), jurisdiction is proper “even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” ( Fischbarg v. Doucet, 9 N.Y.3d 375, 380, 849 N.Y.S.2d 501, 880 N.E.2d 22 [internal quotation marks and citations omitted]; see Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d 65, 71, 818 N.Y.S.2d 164, 850 N.E.2d 1140;Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 467, 527 N.Y.S.2d 195, 522 N.E.2d 40;Muse Collections, Inc. v. Carissima Bijoux, Inc., 86 A.D.3d 631, 927 N.Y.S.2d 389). “Purposeful activities are those with which a defendant, through volitional acts, ‘avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws' ” ( Fischbarg v. Doucet, 9 N.Y.3d at 380, 849 N.Y.S.2d 501, 880 N.E.2d 22, quoting McKee Elec. Co. v. Rauland–Borg Corp., 20 N.Y.2d 377, 382, 283 N.Y.S.2d 34, 229 N.E.2d 604;see Grimaldi v. Guinn, 72 A.D.3d at 44, 895 N.Y.S.2d 156;Sedig v. Okemo Mtn., 204 A.D.2d at 710, 612 N.Y.S.2d 643).

Although a plaintiff is not required to plead and prove personal jurisdiction in the complaint ( see Fischbarg v. Doucet, 9 N.Y.3d at 381 n. 5, 849 N.Y.S.2d 501, 880 N.E.2d 22;Halas v. Dick's Sporting Goods, 105 A.D.3d 1411, 964 N.Y.S.2d 808;Cadle Co. v. Ayala, 47 A.D.3d 919, 920, 850 N.Y.S.2d 563;Ying Jun Chen v. Lei Shi, 19 A.D.3d 407, 407–408, 796 N.Y.S.2d 126), where jurisdiction is contested, the ultimate burden of proof rests upon the plaintiff ( see Halas v. Dick's Sporting Goods, 105 A.D.3d at 1411, 964 N.Y.S.2d 808;Arroyo v. Mountain School, 68 A.D.3d at 604, 892 N.Y.S.2d 74;Shore Pharm. Providers, Inc. v. Oakwood Care Ctr., Inc., 65 A.D.3d 623, 624, 885 N.Y.S.2d 88;Stardust Dance Prods., Ltd. v. Cruise Groups Intl., Inc., 63 A.D.3d 1262, 1264, 881 N.Y.S.2d 192;Ying Jun Chen v. Lei Shi, 19 A.D.3d at 407, 796 N.Y.S.2d 126;Armouth Intl. v. Haband Co., 277 A.D.2d 189, 190, 715 N.Y.S.2d 438).

Here, the plaintiffs alleged that Killington's negligence stemmed from the injured plaintiff being injured after having been instructed by ski instructors to unbuckle her ski boots as part of a training exercise so that when she fell, her ski bindings failed to release. They also alleged that Killington was negligent due to the instructors' failure to warn her of the dangers of such activity. Further, the injured plaintiff submitted an affidavit, in opposition to Killington's motion, stating that her injury occurred when another skier ran over the tails of her skis, causing her to fall and her bindings to fail to release, since she had been skiing with her boots unbuckled as instructed and that she was unaware that skiing with her boots unbuckled would disable the ski bindings...