| Waggaman v Arauzo |
| 2014 NY Slip Op 03259 [117 AD3d 724] |
| May 7, 2014 |
| Appellate Division, Second Department |
[*1]
| Parker Waggaman, Appellant, v Art Arauzo,Respondent. |
Parker Waggaman, Brooklyn, N.Y., appellant pro se.
Ivone, Devine & Jensen, LLP, Lake Success, N.Y. (Robert Devine and Brian E.Lee of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiff appeals froma judgment of the Supreme Court, Kings County (Weston, J.), entered September 7,2012, which, upon an order of the same court dated July 25, 2012, inter alia, granting thedefendant's motion pursuant to CPLR 3211 (a) (8) to dismiss the action for lack ofpersonal jurisdiction, is in favor of the defendant and against him dismissing theaction.
Ordered that the judgment is affirmed, with costs.
The plaintiff, a New York resident, commenced this action against the defendant, aphysician licensed in the State of Texas, who treated his late mother, Elaine Purcell,while she resided in Texas and in Florida. The plaintiff alleged in his summons withnotice that the defendant improperly prescribed drugs for his mother while she resided inTexas and Florida without directly examining her or actively monitoring her health,causing dependency and confusion, destroying her social, familial, and economicrelationships, and ultimately contributing to her early death. The plaintiff sued fordamages suffered directly and indirectly by himself individually and in his capacity as thesole survivor and heir of Purcell, and for damages suffered directly and indirectly byPurcell. The Supreme Court granted the defendant's motion pursuant to CPLR 3211 (a)(8) to dismiss the action for lack of personal jurisdiction.
Where a motion is made to dismiss an action for lack of personal jurisdiction, it is theplaintiff who bears the ultimate burden of proving a basis for such jurisdiction (see Paterno v Laser Spine Inst.,112 AD3d 34 [2013]). A plaintiff relying on CPLR 302 (a) (3) (ii) "must show that(1) the defendant committed a tortious act outside New York; (2) the cause of actionarose from that act; (3) the tortious act caused an injury to a person or property in NewYork; (4) the defendant expected or should reasonably have expected the act to haveconsequences in New York; and (5) the defendant derived substantial revenue frominterstate or international commerce" (Penguin Group [USA] Inc. v American Buddha, 16 NY3d295, 302 [2011]). Once those elements are met, an assessment must then be made asto whether a finding of personal jurisdiction satisfies due process (see id.).
Here, the plaintiff failed to establish that the defendant's alleged tortiousact—prescribing medication in Texas to the plaintiff's mother while she was inTexas and in Florida—caused injury in New York (see Paterno v Laser Spine Inst.,112 AD3d 34 [2013]; O'Brien v Hackensack [*2]Univ. Med. Ctr., 305 AD2d 199 [2003]; Hermann vSharon Hosp., 135 AD2d 682 [1987]; cf. Penguin Group [USA] Inc. v American Buddha, 16 NY3d295 [2011]). Moreover, under the circumstances, the plaintiff failed to establish thatthe defendant expected or should reasonably have expected the act to have consequencesin New York, or that the defendant "derive[d] substantial revenue from interstate. . . commerce" (CPLR 302 [a] [3] [ii]). In addition, the plaintiff failed toestablish that the defendant had the requisite "minimum contacts" with New York suchthat the prospect of defending a suit here comported with "traditional notions of fair playand substantial justice," as required by the Federal Due Process Clause (InternationalShoe Co. v Washington, 326 US 310, 316 [1945] [internal quotation marks omitted];see J. McIntyre Machinery, Ltd. v Nicastro, 564 US &mdash, &mdash, 131 S Ct2780, 2787 [2011]).
On February 25, 2014, the Supreme Court of the United States rendered a decisionrefining the "minimum contacts" analysis set forth in International Shoe Co.(see Walden v Fiore, 571 US &mdash, 134 S Ct 1115 [2014]). The SupremeCourt determined that a "plaintiff cannot be the only link between the defendant and theforum. Rather, it is the defendant's conduct that must form the necessary connection withthe forum State that is the basis for its jurisdiction over him" (571 US at &mdash, 134 SCt at 1122). Moreover, the Supreme Court held that, "[d]ue process requires that adefendant be haled into court in a forum State based on his own affiliation with the State,not based on the 'random, fortuitous, or attenuated' contacts he makes by interacting withother persons affiliated with the State" (571 US at &mdash, 134 S Ct at 1123, quotingBurger King Corp. v Rudzewicz, 471 US 462, 475 [1985]). Here, the defendant'spurported treatment of a New York State resident's mother in Texas and Florida is thetype of attenuated connection to a forum state that the Supreme Court of the UnitedStates now holds violates due process.
The plaintiff's remaining contentions are without merit or need not be reached inlight of our determination. Eng, P.J., Miller, Hinds-Radix and Maltese, JJ., concur.