| Arroyo v Mountain School |
| 2009 NY Slip Op 09509 [68 AD3d 603] |
| December 22, 2009 |
| Appellate Division, First Department |
| Quemuel Arroyo, Respondent, v The Mountain School etal., Appellants. |
—[*1] Mauro Goldberg & Lilling LLP, Great Neck (Barbara D. Goldberg of counsel), forrespondent.
Order, Supreme Court, New York County (Carol Edmead, J.), entered April 16, 2009, which,insofar as appealed from, denied defendants' motion to dismiss the complaint for lack of personaljurisdiction, unanimously reversed, on the law, without costs, and the motion granted. The clerkis directed to enter judgment accordingly.
Plaintiff, a New York resident who was a student at defendant Mountain School, was injuredin a bicycle accident at the school's premises in Vermont. The Mountain School is a program ofdefendant Milton Academy, which is located in Massachusetts.
Defendants are not subject to general jurisdiction pursuant to the "solicitation plus" doctrine(see e.g. Apicella v Valley Forge Military Academy & Jr. Coll., 103 AD2d 151 [1984];Weil v American Univ., 2008 WL 126604, 2008 US Dist LEXIS 1727 [SD NY 2008];Krepps v Reiner, 414 F Supp 2d 403 [SD NY 2006]). Milton Academy advertises neitheron the radio nor on television in New York, visits New York only occasionally, and held onlythree alumni-related events in New York in 2007 and three in 2008. The fact that it offers itsstudents bus service to New York—with stops in Connecticut—on five holidays isnot dispositive (see Meunier v Stebo, Inc., 38 AD2d 590 [1971]). Unlike the defendantin Kingsepp v Wesleyan Univ. (763 F Supp 22 [SD NY 1991]), Milton has issued nobonds in New York and owns no real property in New York. Furthermore, there was no evidencethat Milton sent representatives to 44 secondary schools in New York State per year or had morethan $14 million in a New York bank account (cf. 763 F Supp at 27).
Even if, arguendo, Milton engaged in "substantial solicitation" (Pacamor Bearings vMolon Motors & Coil, 102 AD2d 355, 357 [1984]), it did not engage in sufficient "activitiesof substance in addition to solicitation" (Laufer v Ostrow, 55 NY2d 305, 310 [1982]).CityTerm is a program of nonparty Masters School, not of defendants. "A business relationshipwith a New York entity does not provide a sufficient basis for jurisdiction at least in the absenceof a showing that that company has become an agent or division of the company over which theplaintiff seeks to exercise personal jurisdiction" (Landoil Resources Corp. v Alexander &Alexander Servs., Inc., 918 F2d 1039, 1046 [2d Cir 1990]). Plaintiff, who bears the burdenof proving jurisdiction (see e.g. Copp vRamirez, 62 AD3d 23, 28 [2009], lv denied 12 NY3d 711 [2009]), did not showthat the Masters School was defendants' agent, much less a division of defendants.[*2]
The fact that Milton had approximately $14 million (lessthan 10% of its endowment) invested with New York firms as of June 30, 2006 does not subjectit to general jurisdiction here. "[T]he investment of money in New York cannot alone beconsidered a form of 'doing business' for the purpose of CPLR § 301 . . . ; 'ifit were, then almost every company in the country would be subject to New York's jurisdiction' "(Weil, 2008 WL 126604, *4, 2008 US Dist LEXIS 1727, *14, quoting Schenker vAssicurazioni Generali S.p.A., Consol., 2002 WL 1560788, *5, 2002 US Dist LEXIS 12845,*17 [SD NY 2002]; see also Nelson v Massachusetts Gen. Hosp., 2007 WL 2781241,*31, 2007 US Dist LEXIS 70455, *96 [SD NY 2007], affd 299 Fed Appx 78 [2d Cir2008]).
Similarly, the fact that Milton has a New York bank account for the purpose of receivingwire transfers, which funds are then transferred to a Morgan Stanley account in Boston, does notsubject it to general jurisdiction (see In re Ski Train Fire in Kaprun, Austria on Nov. 11,2000, 2003 WL 1807148, *5, 2003 US Dist LEXIS 5575, *18 [SD NY 2003]; see alsoKrepps, 414 F Supp 2d at 407). Defendants' ordinary business is educating students, whichthey do in Massachusetts and Vermont; their "maintenance of a bank account in New York isonly incidental to" that business (Weinstock v Le Sport, 194 AD2d 400, 401 [1993]).
Defendants are not subject to specific jurisdiction under CPLR 302 (a) (1). Even ifdefendants transacted business within New York, "plaintiff's . . . injury and the tortaction based on it cannot be said to have arisen directly out of this" transaction (Holness vMaritime Overseas Corp., 251 AD2d 220, 224 [1998]; see e.g. Diskin v Starck, 538F Supp 877, 879-880 [ED NY 1982]; Meunier, 38 AD2d at 590-591). Defendants' dutyof care to plaintiff arose in Vermont, not in New York (see e.g. Brandt v Toraby, 273AD2d 429, 430-431 [2000]; Gelfand v Tanner Motor Tours, Ltd., 339 F2d 317, 321-322[2d Cir 1964]). Concur—Gonzalez, P.J., Tom, Sweeny, Freedman and Abdus-Salaam, JJ.[Prior Case History: 2009 NY Slip Op 30875(U).]