Summary
In Greenberg v. R.S.P. Realty Corporation, 22 A.D.2d 690, 253 N.Y.S.2d 344, 345 (2d Dept.1964), the court held that a reservation made over the phone is held to be a contract made in the state where the operator answering the phone is located.
Summary of this case from King v. Best Western Country InnOpinion
October 13, 1964
In a negligence action by plaintiff Lillian Greenberg to recover damages for personal injury, and by her husband for medical expenses and loss of services, the defendant appeals from an order of the Supreme Court, Kings County, dated May 20, 1964, which denied its motion to vacate and set aside the service of the summons and complaint upon it on the ground that it is a foreign corporation which does not do business in the State of New York and is not subject to process therein. Order reversed, with $10 costs and disbursements; motion granted, without costs; and service of the summons and complaint upon defendant vacated. The defendant operates a resort and hotel in New Jersey. It advertised in New York publications and set forth a New York telephone number, such number also being listed in the New York telephone directories. When a person in New York dialed said number, a direct connection to the defendant in New Jersey was obtained. A few days prior to the accident, the female plaintiff, who resided in and was then in New York, dialed the telephone number, obtained a direct connection to the defendant in New Jersey, spoke to the defendant's reservation clerk and made a reservation for herself and another member of her family, which was confirmed by the reservation clerk. She was injured during her stay at the hotel, as a result of the alleged negligence of the defendant. The reservation, regarded as a contract, was made in New Jersey and not in New York (1 Williston, Contracts [3d ed.], § 82A; Ward Mfg. Co. v. Miley, 131 Cal.App.2d 603). There is no proof that the defendant's agents or employees were physically present in New York. In our opinion the defendant did not have the minimum contacts in New York required for acquisition of jurisdiction over it in personam (cf. Grobark v. Addo Mach. Co., 16 Ill.2d 426; Kropp Forge Co. v. Jawitz, 37 Ill. App.2d 475; Singer v. Walker, 21 A.D.2d 285; Longines-Wittnauer Watch Co. v. Barnes Reinecke, 21 A.D.2d 474, mot. for lv. to app. granted 21 A.D.2d 978). The defendant's failure to make its motion within 30 days after process was allegedly served on its registered agent in New Jersey was not a bar to the granting of the motion (Business Corporation Law, § 307, subd. [c]; Ladd v. Stevenson, 112 N.Y. 325). Beldock, P.J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur. [ 43 Misc.2d 182.]