Opinion
July 16, 1993
Appeal from the Supreme Court, Erie County, Whelan, J.
Present — Denman, P.J., Balio, Lawton, Doerr and Boehm, JJ.
Order unanimously affirmed with costs. Memorandum: Plaintiff commenced this action against defendant, a Canadian corporation, alleging that defendant breached a contract that was negotiated and executed in Canada and that contemplated defendant's performance of certain acts in Canada. On defendant's motion, the court dismissed the action for lack of personal jurisdiction, in particular, lack of long-arm jurisdiction under CPLR 302. On appeal, plaintiff contends that, although defendant might not be subject to long-arm jurisdiction under CPLR 302, defendant is nonetheless "doing business" in New York and therefore "present" and subject to personal jurisdiction under CPLR 301 (see, Landoil Resources Corp. v. Alexander Alexander Servs., 77 N.Y.2d 28, 33; Laufer v. Ostrow, 55 N.Y.2d 305, 309-310; Frummer v Hilton Hotels Intl., 19 N.Y.2d 533, 536; Taca Intl. Airlines v Rolls-Royce, 15 N.Y.2d 97; Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 269).
We conclude that plaintiff failed to submit competent evidence of defendant's corporate presence in New York. In his own words, plaintiff's affiant merely "speculat[ed]" that defendant "ships products consistently into New York State and has a substantial business presence" here. He then referred to a newspaper article purporting to show that defendant recently had entered into a joint venture to operate a grain mill in Buffalo. The article referred only to prospective business activities in New York. Further, the article constitutes double hearsay. The CPLR contemplates submission of evidentiary material on a motion to dismiss (CPLR 3211 [c]), and the news article furnished by plaintiff does not qualify. We therefore conclude that the court properly dismissed the action based on defendant's proof that it is not doing business in New York.