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finding no discernable effort on the part of a German manufacturer who was neither registered nor authorized to do business in New York, had no property, bank accounts, offices, or employees in New York and had sold the product in question to a Massachusetts company
Summary of this case from Hamilton v. Accu-TekOpinion
January 24, 1991
Appeal from the Supreme Court, Albany County (Prior, Jr., J.).
During the course of her employment, plaintiff injured her hand when she caught it in a meat packaging machine manufactured by defendant Kramer Grebe, GMBH Company, KG (hereinafter Kramer). Plaintiff instituted suit against Kramer and defendant T.W. Kutter, Inc. (hereinafter Kutter). After discovery, Kramer, a West German corporation, moved for summary judgment for lack of personal jurisdiction.
Supreme Court without explanation denied Kramer's motion and sua sponte ordered it to answer nine additional interrogatories directed at the jurisdiction issue. Kramer appeals. We agree with Kramer's contention that plaintiff has failed to meet her burden of establishing that Kramer is subject to this State's long-arm jurisdiction (see, Connell v Hayden, 83 A.D.2d 30, 34) and we therefore reverse.
Courts may exercise personal jurisdiction over a foreign corporation which: "commits a tortious act without the state causing injury to person or property within the state * * * if [the corporation] expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce" (CPLR 302 [a] [3] [ii]). At issue is whether Kramer reasonably could have expected its allegedly tortious foreign act to have New York consequences (see, Allen v Auto Specialties Mfg. Co., 45 A.D.2d 331, 333; Tracy v Paragon Contact Lens Labs., 44 A.D.2d 455, 458). Plaintiff suggests that an admission made by a Kramer employee during his deposition, that he "presumed" that Kramer products were sold in New York, demonstrates that Kramer both anticipated and intended its product for New York consumption. This same employee, however, acknowledged that he had no personal knowledge of the sales aspects of his employer's business. Moreover, Kramer's business manager stated, in response to plaintiff's interrogatories, that Kramer sold all of its products in the United States to Kutter, a Massachusetts corporation, and that he was unaware of the number of those products Kutter ultimately sold to New York vendees.
It is settled that the mere presence of the allegedly defective product in this State is not, in and of itself, sufficient to establish jurisdiction (see, World-Wide Volkswagen Corp. v Woodson, 444 U.S. 286, 287, 299). Moreover, it is not enough that a defendant foresaw the possibility that its product would find its way here; foreseeability must be coupled with evidence of a purposeful New York affiliation, for example, a discernible effort to directly or indirectly serve the New York market (Martinez v American Std., 91 A.D.2d 652, 653-654, affd 60 N.Y.2d 873; see, McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C302:24, at 113).
It is undisputed that Kramer had no direct contacts with New York. It is a West German corporation which sells all of its products to a company located in Massachusetts. The latter company then sells these products throughout the states (cf., Tonns v Spiegel's, 90 A.D.2d 548, 549; Prentice v Demag Material Handling, 80 A.D.2d 741, 742). Additionally, Kramer is neither registered nor authorized to do business in New York, and it has no property, bank accounts, offices or employees located within this State's boundaries. Accordingly, it is not subject to suit here (see, Martinez v American Std., supra).
Lastly, we note that the record is devoid of any support for plaintiff's belated suggestion that Kutter acted as Kramer's agent.
Order reversed, on the law, without costs, motion granted, summary judgment awarded to defendant Kramer Grebe, GMBH Company, KG, and the complaint and all cross claims against said defendant dismissed. Casey, J.P., Mikoll, Yesawich, Jr., Levine and Mercure, JJ., concur.