Frank Paterno, Appellant,v.Laser Spine Institute, et al., Respondents.

Brief

N.Y.October 15, 2014

APL-2013-00327 Westchester County Clerk’s Index No. 22125/10 Appellate Division - Second Department Docket Number 2011-04654 Court of Appeals STATE OF NEW YORK FRANK PATERNO, Plaintiff-Appellant, against LASER SPINE INSTITUTE, CRAIG WOLFF, M.D., KEVIN SCOTT, M.D., ROBERT GRUBER, D.O., VERNON MORRIS, M.D. and PETER HOROWITZ, M.D., Defendants-Respondents. >> >> BRIEF FOR DEFENDANTS-RESPONDENTS DECORATO COHEN SHEEHAN & FEDERICO, LLP Attorneys for Defendants-Respondents 810 Seventh Avenue, 41st Floor New York, New York 10019 212-742-8700 Of Counsel: Joshua R. Cohen Amanda L. Tate Date Completed: February 27, 2014 To Be Argued By: Joshua R. Cohen Time Requested: 30 Minutes i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii COUNTER QUESTIONS PRESENTED .................................................................. 1 COUNTER PRELIMINARY STATEMENT ........................................................... 1 COUNTER STATEMENT OF FACTS .................................................................... 4 A. Lack of Personal Jurisdiction due to Lack of Long-Arm Jurisdiction .... 4 B. Lack of Personal Jurisdiction Due to Improper Service ........................13 C. Proceedings of the Lower Court ............................................................16 LEGAL ARGUMENT .............................................................................................19 POINT I RESPONDENTS DID NOT TRANSACT BUSINESS IN NEW YORK .........................................................................19 A. Email and telephonic communications with New York do not amount to a transaction of business ............................................19 B. Respondents did not transact business in New York by solicitation through a passive website ..............................................28 C. Respondents did not “purposefully avail” themselves of the benefits of the forum State of New York ....................................32 POINT II THE SITUS OF THE INJURY IS FLORIDA - APPELLANT’S NEW YORK RESIDENCY ALONE IS NOT SUFFICIENT TO ESTABLISH JURISDICTION ..............................36 ii POINT III RESPONDENTS WERE NEVER PROPERLY SERVED ..........................38 CONCLUSION ........................................................................................................42 iii TABLE OF AUTHORITIES Federal Cases Bond v. Laser Spine Institute, LLC, 2010 U.S. Dist. LEXIS 82736, 2010 WL 3212480 (E.D., Pa., 2010) ............................................................. 34, 36 Henderson v. Laser Spine Institute, LLC, 815 F. Supp. 2d 353, 2011 U.S. Dist. LEXIS 110951 (D., Me., 2011) ........................................... 35, 36 Maranga v. Vira, 386 F. Supp. 2d 299 (S.D.N.Y., 2006) ........................................20 Skrodzki v. Marcello, 810 F. Supp. 2d 501, 2011 U.S. Dist. LEXIS 92963 (E.D.N.Y., 2011) .............................. 20, 29, 30, 31 Zibiz Corp. v. FCN Tech. Solutions, 777 F. Supp. 2d 408, 2011 U.S. Dist. LEXIS 21738 (E.D.N.Y., 2006) .................................................29 Zippo Mfg. Co. v. Zippo DOT Com, Inc., 952 F. Supp 1119, 42 U.S.P.Q.2D (BNA) 1062 (W.D. Pa., 1997) .............................................. 30, 31 State Cases Appicella v. Valley Forge Military Academy, et al., 103 A.D.2d 151, 478 N.Y.S.2d 663 (2d Dep’t., 1984) .....................................................................28 Broman v. Stern, 172 A.D.2d 475, 567 N.Y.S.2d 829 (1 st Dept. 1991) .......................................................................40 Davidson Extrusions, Inc. v. Touche Ross & Co., 131 A.D.2d 421, 516 N.Y.S.2d 230 (2d Dep’t., 1987) .....................................................................28 DeGroat v. Kralik, 224 A.D.2d 688, 638 N.Y.S.2d 716 (2d Dep’t., 1996) .....................................................................40 Espy v. Giorlando, 85 A.D.2d 652445 N.Y.S.2d 230 (2d Dep’t., 1981) aff’d 56 N.Y.2d 640, 436 N.E.2d 193, 450 N.Y.S.2d 786 (1982)........... 39, 40, 41 Etra v. Matta, 61 N.Y.2d 455, 436 N.E.2d 3, 474 N.Y.S.2d 687 (1984) ............................................................................... 23, 35 iv Fantis Food, Inc. v. Standard Importing Co., Inc., 49 N.Y.2d 317, 402 N.E.2d 122 ,425 N.Y.S.2d 783 (1980) ................................37 Farkas v. Farkas, 36 A.D.3d 852, 830 N.Y.S.2d 220 (2d Dep’t., 2007) .....................................................................34 Grimaldi v. Guinn, 72 A.D.3d 37, 895 N.Y.S.2d 156 (2d Dep’t., 2010) ........................................................ 28, 29, 31 Hermann v. Sharon Hosp., 135 A.D.2d 682, 522 N.Y.S.2d 581 (2d Dep’t., 1987) .....................................................................22 Ingraham v. Carroll, 90 N.Y.2d 592, 687 N.E.2d 1293, 665 N.Y.S.2d 10 (1997) ........................................................................... 19, 34, 35 J.E.T. Advertising Associates, Inc. v. Lawn King, Inc., 84 A.D.2d 744, 443 N.Y.S.2d 745 (2d Dep’t., 1981) .................................... 32, 33 Katz & Assoc. Corp. v. Midland Rushmore, LLC, 90 A.D.3d 977, 937 N.Y.S.2d 236 (2d Dep’t., 2011) ...........................................20 Kimco Exchange Place Corp. v. Thomas Benz, Inc., 34 A.D.3d 433, 824 N.Y.S.2d 353 (2d Dep’t., 2006) .............................. 19, 32, 33 Lang v. Wycoff Heights Medical Center, 55 A.D.3d 793, 866 N.Y.S.2d 313 (2d Dep’t., 2008) .....................................................................20 McGowan v. Smith, 52 N.Y.2d 268, 419 N.E.2d 321, 437 N.Y.S.2d 643 (1981) ..........................................................37 O’Brien v. Hackensack University Medical Center, 305 A.D.2d 199, 760 N.Y.S.2d 425 (1st Dep’t., 2003) ..................... 20, 21, 22, 24 Polansky v. Gelrod, 20 A.D.3d 663, 798 N.Y.S.2d 762 (3d Dep’t., 2005) .....................................................................37 Shea v. Kralik, 220 A.D.2d 750, 633 N.Y.S.2d 178 (2d Dep’t., 1995) .....................................................................40 State Statutes CPLR § 302 ..............................................................................................................37 v CPLR § 302(a) ............................................................................................ 13, 16, 19 CPLR § 302(a)(1) .................................................................................. 19, 22, 28, 29 CPLR § 302(a)(3) ........................................................................................ 17, 37, 38 CPLR § 308(2) ...................................................................................... 14, 15, 40, 41 CPLR § 311 ..............................................................................................................14 CPLR R. 318 ......................................................................................... 15, 39, 40, 41 CPLR R. 3211(a)(8) .................................................................................................14 Other Authorities Siegel N.Y. Prac. § 88 at 164 ...................................................................................38 COUNTER QUESTIONS PRESENTED Q: Did the lower courts properly find that the respondents’ contacts with the Forum State did not constitute transacting business, such that there was no basis for long-arm jurisdiction over the nondomiciliary respondents? Q: Did the lower courts properly find that respondents did not engage in purposeful activities, such that they did not avail themselves of the benefits and protections of the Forum State’s laws and found an insufficient basis to confer long-arm jurisdiction? Q: Did the lower courts properly dismiss appellant’s complaint for lack of personal jurisdiction pursuant to the long-arm statute, CPLR § 302(a), where the surgery that is the subject of the alleged malpractice was performed in the State of Florida and the respondents are domiciliaries of the State of Florida? A: Respondents respectfully submit that the above questions should be answered in the affirmative. COUNTER PRELIMINARY STATEMENT This is an action sounding in medical malpractice that was dismissed, upon motion, prior to an Answer being filed by the defendant-respondents (hereinafter “respondents”), Laser Spine Institute, LLC, Craig Wolf, M.D., Kevin Scott, M.D., Robert Gruber, D.O., Vernon Morris, M.D. and Peter Horowitz, M.D. Based upon the allegations set forth in the Summons & Complaint, plaintiff-appellant 2 (hereinafter “appellant”) a resident of New York State, contends that respondents, an institutional facility known as Laser Spine Institute (hereinafter “LSI”), and the foregoing individual respondent physicians were negligent in the performance of spinal surgeries, which took place in the State of Florida, from June of 2008 through August of 2008. It is without dispute that during all relevant time periods regarding the allegations of negligence, the institutional defendant maintained an actual and principal place of business in Florida and was duly organized and existing as a limited liability company, under the laws of the State of Florida. (R. 26-27). 1 It is further without dispute that respondent physicians are duly licensed to practice medicine in and maintained respective medical offices and residences in the State of Florida only, not in New York. (R. 26-29). This action was improperly commenced in the Supreme Court, Westchester County, by the filing of the Summons & Complaint on or about September 10, 2010. Due to lack of personal jurisdiction, as properly noted by the Appellate Division, Second Department, respondents did not reach the threshold “minimum contacts” level needed to confer personal jurisdiction, pursuant to the long-arm statute, because respondents did not purposefully avail themselves of the benefits of New York State through sufficient purposeful activity. (R. 201-202). 1 The numbers in the parenthesis followed by “R.” will reference pages in the Record on Appeal. 3 Moreover, the totality of the circumstances did not provide a basis for imposing long-arm jurisdiction over the respondents. (R. 202). Respondents’ communications, in the form of email and telephone conversations, with the appellant, while the appellant was in New York, were not considered “business” activity and not sufficiently “purposeful” under a long-arm jurisdictional analysis. (R. 203). Of import, it is incontestable that the treatment that is the subject matter of this lawsuit was rendered solely in the State of Florida. Any incidental contacts related to that care following appellant’s surgeries were insufficient to confer personal jurisdiction pursuant to the long-arm statute. In addition to moving for dismissal at the trial court for lack of personal jurisdiction, pursuant to the long-arm statute of the CPLR, respondents also moved for dismissal for lack of personal jurisdiction based upon improper service. While the lower courts did not render a determination regarding the improper service provision of the motion for dismissal, in light of the finding that long-arm jurisdiction was not conferred, respondents continue to maintain that they were improperly served with process; therefore personal jurisdiction cannot be conferred. 4 COUNTER STATEMENT OF FACTS A. Lack of Personal Jurisdiction due to Lack of Long-Arm Jurisdiction In 2008, LSI was a surgical facility having its main office location and principal place of business in Tampa, Florida. (R. 15, 26, 40-41). In 2008, LSI did not have any offices, surgical locations, clinics, or other facilities where it offered services in New York. (R. 15, 17, 26). 2 In 2008, the five individual respondents were medical doctors duly licensed to practice medicine in the State of Florida, and are domiciliaries of the State of Florida. (R. 19). All individual respondents maintain Florida residences as their principal homes. (R. 19). In 2008, none of the individual respondents maintained a license to practice medicine in the State of New York and as such, did not render medical services in New York in the instant matter. (R. 19-20). In or around May of 2008, appellant, a New York domiciliary was perusing the homepage of the-then popular America Online (hereinafter “AOL”), when he came across brief video footage that provided information regarding respondents’ services. (R. 46). Appellant stated that the video footage included a professional golfer, Peter Jacobsen 3 , though does not indicate that appellant himself was a 2 The foregoing is true as to LSI at present date, though is not relevant for the analysis of long- arm jurisdiction in the case at bar, as the allegations of purported malpractice occurred in 2008. 3 “Jacobson” is erroneously spelled in Appellant’s Brief (R. 46). 5 golfer, nor would be influenced in any particular way by this individual, based upon appellant’s background, or current medical condition. (R. 46). Appellant next initiated contact with LSI, both by telephonic means and through the internet, to purportedly obtain insight into his current medical condition, from an out-of-state provider that had never rendered treatment to appellant. (R. 46). Importantly, LSI never contacted appellant to solicit him as a client. Eager to proceed with the LSI services, appellant then contacted his primary care physician in New York, Dr. Vitto Dimatteo to request that Dr. Dimatteo review LSI’s website and participate in a telephone communication with LSI. (R. 46). On or about May 30, 2008, following appellant’s initial inquiry regarding spinal surgery, and only after appellant provided respondents with copies of his MRI imaging, a representative of LSI sent a responsive email to appellant. (R. 79). The email included two electronic attachments that were previously discussed via telephonic conversation, which was initiated by appellant. (R. 79). The attachments consisted of an unsigned letter from patient coordinator Andrew Vaught, clearly delineating that the “surgery order” will not be determined until the appellant undergoes a full physical examination with the surgeons in Florida. (R. 6 76, 78). 4 The second attachment was a generic insurance form, advising any potential surgical candidate of the fees and out-of-pocket expenses associated with undergoing a procedure with LSI. (R. 77). Neither, the email, nor the attachments directly solicited, encouraged or coerced appellant from undergoing a surgical procedure in Florida. Upon reviewing the generic insurance form, appellant, in an attempt to renegotiate the surgical price, then, once again, initiated contact with LSI for a second time, by sending an email on June 2, 2008 indicating a portion of the form had been revised and inquiring about hotel recommendations. (R. 47, 75). Just three days after appellant’s initial contact with respondents, appellant again reached out to LSI. (R. 74-75). Following a direct request from appellant, the representative on behalf of LSI then provided appellant with a document listing area hotels and advising appellant that the procedure pricing would not be agreed upon until the “surgical order” was issued, which would not be until appellant was examined by the physicians in Florida. (R. 75) 5 . Appellant was again made aware that the “surgery 4 It must be noted the Record on Appeal is erroneously bound and pg. “78” should directly follow pg. “76.” 5 Of import, appellant repeats and reiterates the same exact emails throughout multiple pages of the Record on Appeal. Specifically, appellant includes the same emails on pages 74 and 79, as well as pages 75 and 80-81. While it is not for respondents to determine appellant’s rationale for the binding of the Record on Appeal, it must be noted because the Record on Appeal as bound is misleading as to the amount of emails from LSI to appellant prior to the surgery he underwent in June of 2008. 7 order” would not be determined until after he arrived in Florida, as it was reiterated, in bold, in the correspondence that was attached to the email from the Patient Advocate, Andrew Vaught. (R. 76). Appellant also acknowledged and affirmed that payment arrangements would be executed upon appellant’s arrival to Florida, therefore, any business transacted was done so in Florida, not New York. (R. 47). On or about June 3, 2008, appellant again reached out to LSI, specifically to Victoria Soroko, in connection with a pre-registration from provided by LSI to flesh out “concerns” regarding purported medical clearance. (R. 114). Moreover, appellant contends he spoke with an individual by the name of “Jeff” (no surname included) who purportedly indicated appellant’s blood work would be needed and appellant should send the blood work to LSI. (R. 114). Of note, the Record is devoid of any written communication, from “Jeff” or respondents or any agent/employee of respondents requiring that appellant obtain blood work and send to LSI. In a separate June 3, 2008 email communication, once again initiated by appellant, appellant requests that LSI coordinate a phone call with appellant’s primary care physician who has “followed [his] back issue” and one of the doctor’s at LSI. (R. 115). As a response to appellant’s request, appellant received a communication from a representative of LSI indicating that appellant would need 8 to coordinate his primary care physician’s schedule and then again contact LSI. Appellant subsequently did so and received a response from LSI that a phone call with a physician from the facility would likely be manageable. (R. 115, 117). 6 Though appellant contends that his primary care physician, Dr. Dimatteo advised someone from LSI reached out to Dr. Dimatteo on June 4, 2008, there is nothing in the Record to reflect that the foregoing actually occurred, but for the self-serving affidavit executed by appellant. Approximately one week following appellant contacting LSI, appellant left his home in New York and traveled to Florida to have spinal surgery performed. (R. 48). Prior to appellant’s initial surgery, the contact with LSI to appellant was responsive in nature and limited to a mere handful of emails on two different dates, May 30 th and June 2 nd . (R. 74-75, 82). In total, those individuals with an LSI email address only sent seven emails, three of which were one sentence or less, all of which were responsive in nature, to appellant prior to the performance of spinal surgery on June 9, 2008. (R. 74-75, 82, 115, 117). On or about June 9, 2008 and June 11, 2008, appellant underwent spinal surgery at LSI in Tampa, Florida. (R. 48). Appellant subsequently returned to New York, purportedly in “constant pain.” (R. 49). Appellant informed LSI of his 6 Once again, it must be pointed out that appellant continues to mislead the Court by including the same email in multiple pages of the Record on Appeal. Pages 115 and 116 are identical emails, as are pages 117 and 118. It must be noted that these emails are merely duplicative and do not indicate the respondents communicated to appellant double the amount of instances than is factually correct. 9 pain, for which medication was filled in a New York pharmacy. (R. 49). Subsequently, in or around July 14, 2008, appellant presented to a host of New York practitioners, inclusive of a physiatrist and neurologist in connection with his purported pain, who performed tests, including an MRI. (R. 49). At appellant’s request, a conference call was held between New York physician Dr. Stern, and LSI. (R. 49). Three weeks later, on or about August 6, 2008, appellant returned to the State of Florida to undergo further surgery at LSI. Appellant subsequently returned to New York, on or about August 9, 2008. (R. 50). The next sporadic email communication from LSI to appellant as evidenced in the Record, is not until August 18, 2008, nearly two and a half months from the last LSI email to appellant. (R. 119). Prior to the August 18 th email, the last email sent from LSI was on June 3 rd , before appellant underwent the initial surgeries at LSI. (R. 118- 119). Moreover, all emails exchanged with appellant are from representative of LSI, not physician respondents. It must be pointed out that appellant’s contention that any of the physician respondents directly ordered any pain medication or radiology studies is communicated via a third-party; that being a representative of LSI. (R. 121-122). The third-party directives are not of a continuous nature and the subject-matter of the emails are not volitional acts that led to availing respondents of invoking benefits of the Forum State. 10 Further, Dr. Wolff “ordering” of one single MRI at Highland Open MRI in New York is mischaracterized. As set forth in an email from a representative of LSI, Dr. Wolff purportedly gave clearance for a “pre-authorization for a LS MRI.” (R. 121-122). This was post-surgical follow-up care and not related to transacting business or availing respondents of the benefits of the Forum State. The remainder of appellant’s treatment took place in New York, with New York physicians. (R. 50-53). Appellant did not undergo treatment in Florida following August 6, 2008. The “numerous” email communications that appellant contends were executed by respondents simply do not exist. Appellant’s attempts to bolster the purported number of communications by duplicating pages in the Record on Appeal will not change that figure. (See, Footnotes “6” and “7”). These emails in no way support the position that respondents projected themselves into New York to purposefully avail themselves of this State’s benefits, or to solicit business from a New York patient, since the emails were communicated after the performance of the surgeries. Further, the emails were responsive in nature, in the vein of follow- up medical treatment and as such; do not rise to the threshold level of “minimum contacts” necessary to confer long-arm jurisdiction. Moreover, the “numerous” telephonic communications that appellant purports existed prior to the surgery cannot amount to more than a handful. There 11 simply is not proof of LSI purportedly thrust itself, or its employees, into the forum state of New York for purposeful availment, which includes solicitation or transaction of business. In fact, as will be fully set forth herein, any business that was transacted between appellant and respondents was done so in the State of Florida, not New York. Therefore, the proper venue for this lawsuit was Florida. Additionally, and without support in the Record, appellant claims respondents’ derive substantial revenue from conducting seminars in the State of New York. (See, “Appellant’s Brief,” pgs. 13 and 24). In 2008, respondents did offer seminars in isolated geographic locations that were not in New York. (R.181-182, 184-188). Prior to and including the time period at issue, respondents never held seminars in New York, nor advertised their services targeted to the Forum State. However, it is undisputed that appellant did not attend any such seminar in any of those foreign jurisdictions. (R. 8). Importantly, respondents did not hold any seminars in New York in 2008. (R. 181-82, 184-88). Moreover, the two seminars conducted in New York were held in November of 2010, two years after the surgeries at issue. (R. 159-164). Appellant’s misguided attempt to imply that LSI’s subsequent seminars in New York is equivalent to respondents’ deriving substantial revenue in 2008 (the only relevant time period in questions”) is a futile and losing argument with no basis in the Record or law. 12 The contacts that ensued prior to the appellant undergoing the June 9, 2008 surgery do not rise to the level of “minimum contacts” that is required by statute to confer long-arm jurisdiction over respondents. This is evidenced by the fact that appellant did not even have a surgeon that was assigned to his case prior to appellant even setting foot in the State of Florida. Moreover, there was no contract, written or oral, that was entered into prior to plaintiff leaving New York and entering Florida. That, perhaps the most obvious component to a transaction of business, did not occur until the plaintiff entered the foreign jurisdiction of Florida. Importantly, appellant’s surgeries at issue were performed in the State of Florida; therefore, the situs of the injury was a foreign jurisdiction. (R. 48, 50). Though appellant had ample opportunity to undergo surgical procedures in New York, as evidenced by his follow-up treatment from a variety of specialists, inclusive of Dr. Jack Stern (neurologist); Dr. Steven Landau (internal medicine); Dr. Debra Petrucci (neurology/general surgery) and Dr. Frank Cammisa (orthopaedic surgery/orthopaedic spinal surgery), appellant nevertheless actively sought treatment in a location where he was required to travel to by plane for his surgeries. (R. 49, 52-53). As such, appellant had a choice as to whether to undergo surgery in New York or Florida, but actively sought out a foreign jurisdiction. 13 Respondents cannot be thrust into the category of purposefully availing themselves of benefits of the forum state, New York, where it is clear that appellant was the precipitator of the contact. Appellant, by virtue of engaging in perusal of the AOL Homepage, discovered a link to LSI that was not specifically directed towards appellant, nor did he claim appealed to his likeness, and clicked on the link, which provided information regarding respondents’ services. From there, it was appellant’s own active conduct that caused him to undergo treatment, by choice, in the foreign jurisdiction of Florida. As will be fully set forth herein, respondents are not amenable to personal jurisdiction, pursuant to the long-arm statute of the CPLR, § 302(a), as they did not transact business purposefully and continuously in the State of New York and it would be against the traditional notions of fair play and substantial justice, which are the underpinnings of constitutional due process. B. Lack of Personal Jurisdiction Due to Improper Service Both the trial court and Appellate Division, Second Department, did not reach a determination as to whether service was proper because the lower courts did not confer jurisdiction pursuant to the long-arm statute. In addition for lack of long-arm jurisdiction, there is no personal jurisdiction over respondents due to improper service of process. 14 Appellant commenced this action in New York State by filing a Summons & Complaint on or about September 10, 2010 (R. 25-37). On September 22, 2010, appellant then served the respondents with Summons & Complaint improperly. (R. 20-24). 7 Although apparently services was made upon an individual of suitable age and discretion, there was no follow-up mailing to the respondent-physicians, as required by CPLR § 308(2), nor was there an affidavit of service for LSI contained in the Record on Appeal, as it was never served. (R. 169-174). Subsequently, on October 22, 2010, respondents served appellant with a pre- answer motion to dismiss, pursuant to CPLR R. 3211(a)(8), for appellant’s failure to obtain personal jurisdiction over respondents. (R. 12-24). Respondents’ motion was, in part, grounded in the legal principles set forth in CPLR § 311, wherein respondents asserted that personal jurisdiction was not conferred because of defective service of process. (R. 20-24). Respondents argued that since LSI, a limited liability company duly licensed in the State of Florida pursuant to the Florida Department of State Division of Corporations (R. 40-44), was not served pursuant to CPLR § 311, which governs service upon foreign corporations, the court could not confer jurisdiction over LSI. (R. 20-24). Appellant never served LSI with process, as there is no affidavit of service indicating the foregoing included in the Record on Appeal. (R. 169-173). 7 Respondents point out that the Record is erroneously bound, as R. 21 is out of order and where “R. 20-24” is cited, it must be read without R. 21. 15 Even if the trial court had found appellant did serve LSI, service was defective, as it was not made upon an officer, director, managing or general agent, cashier or any other agent authorized to accept service, nor was it made upon the registered agent for service of process, C T Corporation System. (R. 20-24, 38- 41). Notably devoid from the Record on Appeal is any affidavit of service as to respondent LSI. (R. 169-173). As such, there is no proof of any service upon LSI. As to the respondent-physicians, appellant improperly served Lora Lamb, a medical records clerk at LSI, as she was not a designated agent to accept service of process on behalf of the respondent-physicians, pursuant to CPLR R. 318. (R. 38- 39). To be a designated as an agent for service, there must be a writing that is executed and acknowledged, filed with the County Clerk in the county for which principal to be served resides. N.Y. CPLR R. 318. As affirmed by Ms. Lamb, she was not designated or authorized to accept service of any of the respondent- physicians. (R. 38-39). Therefore, respondent-physicians were not properly served pursuant to the statutory prerequisites set forth in the CPLR. Likewise, even if Ms. Lamb was found to be a person of suitable age and discretion, service is still improper, as no follow-up mailing of the Summons and Complaint was provided to the respondent-physicians, pursuant to CPLR 308(2). (R. 169-174). 16 C. Proceedings of the Lower Court After submission of appellant’s opposition and respondents’ reply affirmation at the trial court level, the Honorable Nicolas Colabella issued a Decision & Order, dated March 25, 2011, dismissing appellant’s complaint for lack of long-arm jurisdiction, pursuant to CPLR § 302(a). (R. 7-9). The trial court determination was then upheld by the Appellate Division, Second Department, in an Opinion and Order dated October 16, 2013. (R. 197-208). Significantly, the Appellate Division, Second Department reasoned that respondents did not conduct purposeful activities in New York, thus did not invoke the benefits and protections of its laws, so as to sustain a substantial relationship between the transaction and claim asserted. (R. 202). Moreover, the Appellate Division, Second Department found that the “many communications” between the parties, which mostly derived from the appellant, were all related to the surgeries that occurred in Florida, therefore could not provide a sufficient basis for personal jurisdiction under the long-arm statute. (R. 203). The Appellate Division determined that LSI did not project itself into New York in such a manner that it availed itself of the benefits and protections of New York law. (R. 203). It was of no merit that appellant executed paperwork in New York and provided the paperwork to the facility in Florida, prior to his surgery. (R. 203). 17 Additionally, the Appellate Division further held that appellant’s own activities within New York, such as providing respondents with lab work, consultations with New York physicians and filling prescriptions did not demonstrate that respondents transacted business within New York. (R. 204). In fact, the Appellate Division reasoned that the holdings in prior case law “predate[s] the advent of the internet does not alter the still-valid premise that the mere solicitation of business in this State does not amount to the transaction of business herein.” (R. 204-205). Of further import, the Appellate Division, Second Department, correctly held that CPLR 302(a)(3), which applies where a nondomiciliary “commits a tortious act outside of the state…causing injury to a person within the state,” must be analyzed by determining the location of the original event which caused the injury, not where the resultant damages are felt. (R. 205). As such, the Appellate Division, Second Department declined to even advance the analysis to prong (i) and prong (ii) of CPLR § 302(a)(3), since it determined that the situs of appellant’s surgeries was Tampa, Florida, and the foregoing prongs are only applicable to injuries that occur in New York. (R. 205). The Appellate Division also pointed out that it was of no merit that appellant purportedly sustained injuries in New York, as that was not enough to confer personal jurisdiction pursuant to the long- arm statute. (R. 205). 18 Moreover, the Appellate Division was able to distinguish the instant matter with other cases where the institutional respondent is also a defendant, most importantly pointing out that the other matters are venued in Federal Court, wherein the long-arm statutes “extend to the fullest extent permitted by the Due Process Clause of the United States Constitution,” thereby allowing the courts to base minimum contacts on the “most minimum contact,” allowing for a long-arm statute with full extension. (R. 207). While the Appellate Division did not rule on the aspect of respondents’ motion that alleged lack of personal jurisdiction, due to improper service, respondents point out that should this Honorable Court confer personal jurisdiction, pursuant to New York’s long-arm statute, this matter must nevertheless remain dismissed, based upon appellant’s failure to properly serve process. 19 LEGAL ARGUMENT POINT I: RESPONDENTS DID NOT TRANSACT BUSINESS IN NEW YORK A court may exercise personal jurisdiction over a nondomiciliary defendant, pursuant to CPLR § 302(a), where the alleged tortfeasor: transacts any business within the state or contracts anywhere to supply goods or services in the state. N.Y. CPLR § 302(a)(1). When determining what activities constitute “regularly do[ing] or solicit[ing] business,” or defining a “persistent course of conduct” the courts have held that test requires something more than a “one-shot” single transaction and can be defined as a “regular course of conduct.” Ingraham v. Carroll, 90 N.Y.2d 592, 597, 687 N.E.2d 1293, 665 N.Y.S.2d 10 (1997). Of import, in defining what constitutes “transact[ing] business” courts have stated that an entity transacts business when it “purposefully avails itself the benefits and privileges of the forum state.” Kimco Exchange Place Corp. v. Thomas Benz, Inc., 34 A.D.3d 433, 434, 824 N.Y.S.2d 353 (2d Dep’t., 2006). Where sufficient contacts are not established, due process would be offended if they [defendants] were made subject to New York’s jurisdiction. Id. A. Email and telephonic communications with New York do not amount to a transaction of business. Courts have consistently held that to confer long-arm jurisdiction, pursuant to CPLR § 302(a), the business that is transacted in New York must not be 20 “occasionally or casually,” but with a fair measure of “permanence and continuity.” Katz & Assoc. Corp. v. Midland Rushmore, LLC, 90 A.D.3d 977, 979, 937 N.Y.S.2d 236 (2d Dep’t., 2011). Courts have also recently declined to confer personal jurisdiction over defendants wherein a contract between a nondomiciliary defendant and a New York plaintiff was executed by telephonic and email communications. Skrodzki v. Marcello, 810 F. Supp. 2d 501, 514, 2011 U.S. Dist. LEXIS 92963 (E.D.N.Y., 2011); See also, Maranga v. Vira, 386 F. Supp. 2d 299, 306 (S.D.N.Y., 2006) (Holding, “communications into New York will only be sufficient to establish personal jurisdiction if they were related to some transaction that had its center of gravity inside New York, into which a defendant projected himself”). The Appellate Division, Second Department has held that “purposeful activities” are those in which a defendant, through volitional acts, avails itself of the privilege of conducting activities in the forum state.” Katz & Assoc. Corp. v. Midland Rushmore, LLC, 90 A.D.3d 977, supra; See also, Lang v. Wycoff Heights Medical Center, 55 A.D.3d 793, 794, 866 N.Y.S.2d 313 (2d Dep’t., 2008); O’Brien v. Hackensack University Medical Center, 305 A.D.2d 199, 199-200, 760 N.Y.S.2d 425 (1 st Dep’t., 2003). In O’Brien, a New York patient commenced a medical malpractice action against a New Jersey hospital that solicited New York patients. Id. Further, the 21 New Jersey medical center had an affiliation with a New York hospital regarding referrals made to New York doctors for laboratory work and examinations. Id. In that case, decedent was prescribed chemotherapy by one of the New Jersey physicians, which was administered in New York, and the treatment continued by telephone calls, mail and faxes between the defendant physicians in New Jersey and the New York physicians. Id. at 200. In O’Brien, the Appellate Division held that the defendants’ conduct was not enough to confer long-arm jurisdiction over the defendants. Id. It held that the solicitation of business was not sufficient, as it was not supplemented by a business transaction occurring in New York, nor was it accompanied by a fair measure of the defendants’ permanence and continuity in New York. O’Brien v. Hackensack University Medical Center, 305 A.D.2d at 201. Further factors that the court in O’Brien analyzed when determining if defendants’ had sufficient presence to in New York justify long-arm jurisdiction was whether defendants maintained: an office, telephone line or mailing address in New York or whether defendants were licensed to do business in New York. Id. at 200-201. It is without dispute that respondents did not maintain an office, telephone line or mailing address in New York, nor were the physician respondents licensed to practice medicine in the Forum State, during the relevant time period. 22 Since the defendants in O’Brien did not maintain an office or telephone line or mailing address in New York, nor any other point of contact in furtherance of solicitation with New York, the court did not confer long-arm jurisdiction over the New Jersey hospital and physicians. Id. at 201; See also, Hermann v. Sharon Hosp., 135 A.D.2d 682, 683, 522 N.Y.S.2d 581 (2d Dep’t., 1987) (Finding, plaintiff was unable to establish a basis for jurisdiction pursuant to CPLR 302(a)(1), where a Connecticut Hospital did not maintain an office in New York and was licensed and conducted its health-care activities solely in the State of Connecticut). In Hermann, where a New York plaintiff sought treatment at a Connecticut Hospital, and allegedly sustained injuries while undergoing treatment in the out-of- state facility, the Appellate Division, Second Department did not find that defendant hospital was transacting business in New York, even where certain defendant physicians were licensed in New York and where “a sizeable portion” of its patients reside in New York. Id. The Second Department held that notwithstanding some of the defendant-physicians’ New York licensures, in addition to the New York patient-base, defendants were not amenable to long-arm jurisdiction because plaintiff failed to show his treatment at the hospital arose out of any transaction of business by the hospital in New York State. Id. 23 In Etra v. Matta, this Court held that a nondomiciliary physician who rendered treatment to a New York plaintiff in Massachusetts, and then followed up with New York providers by written and telephonic communications, “did not fall within the contemplation of the statute, so as to confer personal jurisdiction over the physician.” Etra v. Matta, 61 N.Y.2d 455, 458-459, 436 N.E.2d 3, 474 N.Y.S.2d 687 (1984). In Etra, decedent, who suffered from a heart condition, sought treatment from a Massachusetts physician, underwent treatment in a Massachusetts hospital and was supplied with medication from the Massachusetts physician upon his return to New York. Etra v. Matta, 61 N.Y.2d 455 at 457-458. Moreover, the Massachusetts physician referred decedent to a New York doctor and acted as consultant with respect to the medication regimen. Id. at 458. Notwithstanding the out-of-state physician’s contacts with New York, inclusive of telephonic and written communications, this Court held that the Massachusetts physician was not transacting business in New York and was not subject to long-arm jurisdiction. Id. at 458-59. This Court held: …Viewing the totality of [the physician’s] contacts with [New York] in the form of written and telephonic communications and the additional provision of the experimental drug, we believe them to be too insubstantial to amount to such a transaction of business subjecting the doctor to jurisdiction in this forum. Id. [emphasis added]. 24 Similarly to the holdings in Etra and O’Brien, supra, in the case at bar, respondents’ contacts with New York, in the form of: communications with New York physicians; prescribing pain medication for appellant that was filled in a New York pharmacy and MRI order for plaintiff in New York, are too insubstantial to warrant a transaction of business subjecting respondents to jurisdiction in New York. Of note, appellant cannot point to any substantive proof in the Record, other than a self-serving affidavit, that any of the respondents actually ordered an MRI, filled a prescription or spoke to any New York physicians, in connection with appellant’s care and treatment. Moreover, in the case at bar, unlike in Etra, respondents did not act as consultants to the New York physicians, nor was appellant referred to any of the New York physicians by respondents. Even if that were the case, the holding in Etra makes clear that those contacts, of prescribing medicine and acting as a consulting physician, are too insubstantial to reach the threshold of transacting business in New York. As such, there is no basis for long-arm jurisdiction over respondents. The pre-surgical contacts via telephone and electronic means cannot be deemed as transacting business, as respondents do not maintain a regional surgery center in New York, an office or telephone line in the forum state, nor any other point of contact in New York. (R. 17). The isolated contacts, which were simply 25 responses to appellant’s inquires seeking a surgical procedure in the State of Florida, are an insufficient as a matter of law to confer jurisdiction over respondents. Appellant’s inquiry of his primary care physician in New York, Dr. Dimatteo, to contact the nondomiciliary defendants in Florida, is illustrative of appellant’s proactive desire to have the surgeries performed. (R. 46, 115-116). It was the appellant who was interjecting himself into the respondents’ forum state of Florida by initiating contact via email and telephonic means, not the converse. Moreover, the email communications that appellant classifies as “voluminous” are all dated subsequent to the surgeries, which certainly cannot serve to support the theory that respondents were soliciting business in New York, as they were executed following the performance of the surgeries. (R. 119-157). Also, subsequent post-surgical contact must not be misconstrued as a “transaction of business,” as this will create a slippery-slope with regard to treatment of a patient in a foreign jurisdiction. Patient follow-up cannot be classified as a “transaction of business” or as a form of bait to lure out-of-state nondomiciliary physicians or institutions into the realm of jurisdiction under New York law. To set a precedent such as this would inject fear into out-of-state practitioners and ultimately cause harm to a patient seeking treatment outside of New York. A nondomiciliary physician would fear that he will be haled into court 26 in a foreign jurisdiction for providing follow-up care to a patient that the physician did not solicit. It must be respectfully pointed out that the Dissenting Opinion of the Appellate Division, Second Department, repeatedly indicates that respondents contact appellant via email to advise that a spot had opened up and that LSI would perform the surgery at a significant discount, if appellant would fly to Florida during a certain date range. (R. 209, 215-216). To that end, the Dissent reasoned that this potential economic consideration, in the form of a potential discount offer by respondent, could be deemed a transaction of business, such that LSI was purposefully availing itself of the benefits of the forum state. The Record on Appeal is devoid of any indication that the foregoing was transcribed in writing, let alone in an email. In fact, not one single email from Andrew Vaught (a then employee of LSI) indicates an offer of a discount or a cancellation. The Dissent extrapolated that information based upon the self-serving affidavit of appellant. (R. 47). The record merely states appellant was “contacted” by LSI, though no proof is submitted in connection with the foregoing assertion. Thus, this cannot be construed as an example of respondents transacting business in the forum state of New York. 27 Regardless of appellant’s claim of a discounted transaction, the only such transaction regarding the surgical fee occurred in Florida, after appellant was evaluated by a physician and the type of surgery was selected. Moreover, the Dissent overinflates the nature of contact between respondents and appellant. The Dissent mentions respondents ordered “MRIs” (R. 216), though this is simply factually inaccurate. As referenced above, the imaging study that was purportedly ordered by Dr. Wolff (again, no direct evidence in the record that this was done, other than through an email from a third-party), was a “pre-authorization for an LS MRI.” (R. 121). This is one single pre-authorization for a radiology study. Further, the Dissent suggests respondents filled “prescriptions” in New York. (R. 216). This is again misleading, as the only evidence that respondent filled pain medication, one time, is from an email communication from a third-party who did not execute the purported ordering of the prescription. There were not multiple instances of ordering radiological studies or filling of prescriptions, such that would rise to the level of “minimum contacts” as the Dissent suggests. The notion that any of the above contacts, involving electronic or telephonic communication constitutes “preparation” for spinal surgeries that took place in Tampa, Florida is far-reaching and does not rise to the threshold of transacting business. These communications are too attenuated in nature to rise to the level of 28 transacting business under the long-arm statute. Therefore, there is no basis for long-arm jurisdiction over the respondents pursuant to CPLR § 302(a)(1). B. Respondents did not transact business in New York by solicitation through a passive website. Appellant contends that by advertising on its website, respondents’ solicited business, such that it equated to a course of conduct which would constitute transacting business under the purview of the long-arm statute. It is well-settled law that mere solicitation through advertisement is not enough to confer personal jurisdiction. Davidson Extrusions, Inc. v. Touche Ross & Co., 131 A.D.2d 421, 423, 516 N.Y.S.2d 230 (2d Dep’t., 1987). A defendant does not transact business by virtue of the placing of an advertisement in a trade journal which is nationally circulated or by receiving phone calls from overseas by plaintiff, in response to the advertisement. Id. Further, weekly print advertisements placed in the New York Times, by a Pennsylvania school, did not constitute transacting business in New York to confer long-arm jurisdiction. Appicella v. Valley Forge Military Academy, et al., 103 A.D.2d 151, 154, 478 N.Y.S.2d 663 (2d Dep’t., 1984). In an effort to properly analyze long-arm jurisdiction with the advent of the Internet, another medium to potentially advertise, the courts have created a category of websites known as “passive websites,” which are defined as “websites that do little more than make information available to those who are interested.” Grimaldi v. Guinn, 72 A.D.3d 37, 48, 895 N.Y.S.2d 156 (2d Dep’t., 2010). The 29 Appellate Division, Second Department held that most courts would find it unreasonable to assert personal jurisdiction over a foreign company where the website was accessible to the general public, but could not be used to purchase services or goods. Id. Courts have recently held that a website that only provides information about an item for sale and contact information for the seller, without any ability to directly purchase the items through the website is considered “passive” and therefore insufficient to demonstrate the website operator has purposefully availed itself of the privilege of conducting activities within New York. Skrodzki v. Marcello, 810 F. Supp. 2d 501 at 515, supra; See also, Zibiz Corp. v. FCN Tech. Solutions, 777 F. Supp. 2d 408, 2011 U.S. Dist. LEXIS 21738 (E.D.N.Y., 2006) (Holding, “Internet websites that are not of a commercial nature and do not permit the purchase of products online are not sufficient to confer personal jurisdiction pursuant to CPLR 302(a)(1)”). In Skrodzki, the Court did not find that the respondent transacted business in New York, where plaintiff initiated contact to respondent via respondent’s website and following contract negotiations that took place over email and telephone communications. Skrodzki v. Marcello, 810 F. Supp. 2d 501 at 515. The court held, “The fact that the contact took place via email, for which the medium was a desktop computer, does not mean that the Defendants transacted business through 30 the website.” Id. Of import, the court went onto state that the fact that the website “equally targeted New York consumers and all other consumers throughout the world means, by definition, that they are not directly soliciting New Yorkers.” Id. Even more compelling, the court held the foregoing principle to be “especially true where the Plaintiff located the product and engaged initial communications with the Defendants through an advertisement on a third-party website.” Id. at 517. As recently as 1997, courts defined the Internet as “a global super-network of over 15,000 computer networks used by over 30 million individuals, corporations, organizations and educational institutions worldwide.” Zippo Mfg. Co. v. Zippo DOT Com, Inc., 952 F. Supp 1119, 1123, 42 U.S.P.Q.2D (BNA) 1062 (W.D. Pa., 1997). Nearly ten years later, during the time that appellant was perusing the Internet, the numbers indicated in Zippo were archaic, as the Internet is ever- evolving. Nevertheless, the Zippo Court correctly recognized different categories of conducting business on websites, which can be classified on a spectrum; one end involving business that is performed over the internet, which is defined as the knowing and repeated transmission of computer files over the Internet, while the other end involves a defendant posting information on an Internet website, which is simply accessible to those in a foreign jurisdiction. Zippo Mfg. Co. v. Zippo DOT Com, Inc., 952 F. Supp. 1119, 1124. The Zippo Court defined a passive website as 31 one which does little more than make information available to those who are interested, and is not grounds for personal jurisdiction. Id. While a “middle ground” was identified, the court held the exercise of jurisdiction in those cases would be determined by examining the level of interactivity and commercial nature of the exchange of information that occurred on the website. Id. In the case at bar, appellant does not contend that he actually visited LSI’s website, but rather, “learned of LSI through the front page of AOL’s homepage,” a third-party website. While appellant contends he viewed a “five minute video presentation” on behalf of LSI, the Record on Appeal is devoid of evidence that he actually visited LSI’s website. Assuming arguendo that appellant, did, in fact, peruse LSI’s website in 2008 prior to undergoing spinal surgery, the Record is also without any evidence that this website allowed for potential surgical candidates to schedule appointments, fill out applications, or purchase any surgery. As such, any website maintained by LSI must be categorized as passive in nature, and as such, cannot to confer personal jurisdiction. See, Skrodzki v. Marcello, 810 F. Supp. 2d 501, supra, Grimaldi v. Guinn, 72 A.D.3d 37 & Zippo Mfg. Co. v. Zippo DOT Com, Inc., 952 F. Supp. 1119, supra. Even the Dissent in the Appellate Division, Second Department Opinion agrees, “Otherwise, the record is devoid of evidence concerning the nature of LSI’s website from which to reach any conclusion concerning that website’s 32 degree of interactivity. Therefore, on this record, there is no basis to conclude that LSI’s website could be characterized, under the Zippo continuum, as anything other than a passive website.” (R. 215). As such, respondents did not transact business in New York by solicitation through LSI’s website and there is no basis for long-arm jurisdiction. C. Respondents did not “purposefully avail” themselves of the benefits of the forum State of New York. New York courts have denied long-arm jurisdiction even where nondomiciliary defendants faxed executed contracts to a New York plaintiff, in addition to executing multiple phone calls to New York. Kimco Exchange Place Corp. v. Thomas Benz, Inc., 34 A.D.3d 433 at 434, supra. See also, J.E.T. Advertising Associates, Inc. v. Lawn King, Inc., 84 A.D.2d 744, 745, 443 N.Y.S.2d 745 (2d Dep’t., 1981) (Holding that a contract being negotiated by telephone or mail, outside of New York, does not constitute a purposeful activity nor a transaction of business connecting defendant with the matter at suit, therefore does not confer jurisdiction). The Kimco Court did not consider the act of faxing a contract, which by definition incorporates legal consideration, sent to plaintiff by a nondomiciliary defendant, coupled with phone calls between the parties, to rise to the level of a transaction of business, but rather classified the foregoing as “mere attempts to contact the plaintiff.” Id. 33 Further, the Kimco Court pointed out that defendants were not seeking to take advantage of a field that was specific to New York (in connection with plaintiff’s service of nationally marketing a property owned by defendants), but rather, desired a nationwide market. Id. The Appellate Division, Second Department, held that since the defendants did not have sufficient contacts with New York and did not avail themselves the benefits of the instant forum, due process would be offended if they were subjected to long-arm jurisdiction. Id. at 435. In the case at bar, the Record on Appeal is devoid of any indication that respondents reasonably expected to be haled into a New York court to defend their actions, after performing spinal surgeries on the appellant in Tampa, Florida. There are simply not enough contacts to sustain an adequate nexus such that the respondents would reasonably expect defend their actions in a New York forum. Moreover, respondents did not purposefully avail themselves of the benefits and protections of New York state laws, since, as of 2008, they had not interjected themselves in the forum state in any way. 8 This is further supported, and conceded by appellant, that the pricing of the surgery would not be negotiated until appellant 8 Although appellant indicates LSI now advertises in New York by way of seminars, and therefore should reasonably expect to be “haled into court” in the Forum State, it is undisputed and without support in the Record that any of the seminars occurred in New York in 2008. In a misguided effort to cure a defect in his argument, appellant wrongly attempts to relate back a purported subsequent derivation of revenue to the relevant time period of 2008. Any purported revenue that LSI sustained or should have expected post-2008 is not relevant to the long-arm jurisdiction analysis. 34 entered the State of Florida, therefore there was no intention on the part of respondents to engage in business activity in New York. (R. 47, 75). This Court did not find a basis for jurisdiction over a Vermont physician who treated a patient in Vermont, resulting in the patient’s death in New York, due to the fact that the defendant’s business operations were “of local character.” Ingraham v. Carroll, 90 N.Y.2d 592 at 599, supra. This Court did not confer jurisdiction since the defendant rendered medical services wholly within his own state, such that he could not be classified as engaging in interstate commerce, or deriving revenue from interstate commerce. Id. [emphasis added]. While this Court acknowledged that it is not uncommon for a local physician to treat a nonresident patient, it held, “the diversity of a defendant-physician’s patient pool, without more cannot convert an otherwise local practice to an interstate business activity,” availing defendant of the benefits of the forum state. Id. at 600. The courts must look at a totality of the circumstances to determine whether a defendant has engaged in sufficient purposeful activity to confer personal jurisdiction. Farkas v. Farkas, 36 A.D.3d 852, 852, 830 N.Y.S.2d 220 (2d Dep’t., 2007). The instant matter must be contrasted with Bond v. Laser Spine Institute, LLC, 2010 U.S. Dist. LEXIS 82736, 2010 WL 3212480 (E.D., Pa., 2010), which conferred personal jurisdiction over respondent in the Commonwealth of 35 Pennsylvania wherein it was determined that respondent had sufficient contacts with the foreign jurisdiction, under Pennsylvania law. Of note, respondent was involved in postsurgical treatment, which was executed while appellant was seeking treatment at a facility in the Commonwealth of Pennsylvania. Id. at 3-4. Moreover, the respondent physician who was advising the Emergency Department Nurse at a facility in Pennsylvania regarding treatment of appellant was portrayed on respondent’s website as “a senior member of the LSI surgical team and a leader of the Pennsylvania surgical team.” Id. at 27. Henderson v. Laser Spine Institute, LLC, 815 F. Supp. 2d 353, 2011 U.S. Dist. LEXIS 110951 (D., Me., 2011) can be distinguished from the case at bar in that personal jurisdiction was conferred over respondent in Maine where the record supported a finding that respondent telephoned appellant multiple times, in addition to initiating multiple emails to appellant, in connection with an effort for appellant to obtain reimbursement from his insurance company. Id. at 361. Moreover, in Henderson, the record was replete with evidence that appellant spoke to multiple individuals at LSI, which included patient financial services, the Vice President of Medical Operations and another LSI employee who provided itemized bills to appellant, which was a result of a lawsuit that was pending regarding appellant’s insurance company disclaiming coverage for appellant’s surgical procedures. Id. 36 In the instant matter, none of the respondent physicians are even licensed to practice medicine in the State of New York, nor did appellant contend that he reviewed information on LSI’s website or “five minute video presentation” on a third-party website that would allow him to draw that conclusion. Furthermore, in the case at bar LSI did not contact appellant regarding pending lawsuits or directly with appellant to address any insurance complications. Further, it is notable to mention that the foregoing cases that conferred personal jurisdiction over respondent were venued in jurisdictions where personal jurisdiction was extended to the fullest extent permitted by the federal Constitution. Both Pennsylvania and Maine’s constitutional personal jurisdiction analysis is painted with a broader stroke, using a much larger brush than that of New York. The level of contact that was present in both Bond v. Laser Spine Institute, LLC, 2010 U.S. Dist. LEXIS 82736, supra and Henderson v. Laser Spine Institute, LLC, 815 F. Supp. 2d 353, supra, simply does not exist in the case at bar, and as such, personal jurisdiction pursuant to the long-arm statute cannot be conferred. POINT II THE SITUS OF THE INJURY IS FLORIDA - APPELLANT’S NEW YORK RESIDENCY ALONE IS NOT SUFFICIENT TO ESTABLISH JURISDICTION When undertaking statutory analysis of the third prong of the long-arm statute, this Court has looked to the situs of the occurrence of the injury to 37 determine if the injury occurred within the state. McGowan v. Smith, 52 N.Y.2d 268, 273-274, 419 N.E.2d 321, 437 N.Y.S.2d 643 (1981). This Court did not extend long-arm jurisdiction where the plaintiff was injured in a location outside of New York; the situs of the injury being Canada. Id. In following precedent, this Court has also held, “the residence of the injured party in New York is not sufficient enough to satisfy the clear statutory requirement of an injury within the state…we see no reason for ignoring the plain language of CPLR 302 and reaching a contrary conclusion.” Id. at 274-75, citing, Fantis Food, Inc. v. Standard Importing Co., Inc., 49 N.Y.2d 317, 326, 402 N.E.2d 122 ,425 N.Y.S.2d 783 (1980) (Holding, “The residence or domicile of an injured party within a State is not a sufficient predicate for jurisdiction, which must be based upon a more direct injury within the State and a closer expectation of consequences within the State than the loss resulting from the fact that the injured person resides or is domiciled there”); See also, Polansky v. Gelrod, 20 A.D.3d 663, 664-665, 798 N.Y.S.2d 762 (3d Dep’t., 2005) (Holding, “the situs of the injury is where the critical events took place, not where the resulting loss occurred”). The analysis under (i) and (ii) of CPLR § 302(a)(3) need not be extended, due to the fact that the situs of the injury in the case at bar was the location of the surgeries, which occurred in Tampa, Florida. It is of no consequence that appellant 38 was purportedly injured in New York State. Siegel N.Y. Prac. § 88 at 164 (4 th ed). “With respect to subparagraphs (i) and (ii), it has been held that the original injury must occur in New York. If the injury occurs outside of New York and just manifests itself in New York, or it has its greatest consequences in New York, the statute is not satisfied [to confer personal jurisdiction]. Id. As such, respondents need not further belabor the point that they did not regularly do or solicit business, or engage in a persistent course of conduct, or derive substantial revenue from the New York State, nor should respondents reasonably expect to have consequences in New York or derive substantial revenue from interstate commerce. As such, long-arm jurisdiction, pursuant to CPLR § 302(a)(3) cannot be conferred. POINT III RESPONDENTS WERE NEVER PROPERLY SERVED Should this Court find that jurisdiction over respondents is proper pursuant to the long-arm statute of the CPLR, appellant never obtained personal jurisdiction over respondents, as service of process on the respondents was defective. Respondent LSI was never served with a Summons and Complaint, and the Record on Appeal is without an affidavit of service indicating it was. (R. 169-173). As such, the court never had jurisdiction over LSI and the action as to LSI must remain dismissed. 39 As to the respondent-physicians, the affidavits of service claim that they were served by service on an “authorized entity,” by delivering a copy of the, “30- Day Summons, Verified Complaint and Certificate of Merit with the date and hour of service endorsed thereon by me, to: Lora Lamb as Medical Records Specialist … who stated they are authorized to accept service” for the respondent physicians. (R. 169 - 173). To be an “authorized agent” to accept service of process for a person, the authorization must be “in writing, executed and acknowledged in the same manner as a deed” and “filed in the office of the clerk of the county in which the principal to be served resides.” CPLR R. 318. Appellant has failed to show, as a matter of law, that Lora Lamb is an authorized agent to accept service on behalf of the respondent-physicians. The Record on Appeal is absent of any showing that the respondent-physicians designated Lora Lamb as an authorized agent to accept service of process, as set forth in a writing, executed and acknowledged in the same manner as a deed, and filed in the county clerk’s office in Tampa, Florida. Moreover, Ms. Lamb has attested that she is not an authorized agent to accept service for the respondent- physicians. (R. 38 - 39). It is well settled that for an individual to be an authorized agent for service of the person to be served, the formalities of CPLR R. 318 must be followed. Espy 40 v. Giorlando, 85 A.D.2d 652, 652 445 N.Y.S.2d 230 (2d Dep’t., 1981) aff’d 56 N.Y.2d 640, 436 N.E.2d 193, 450 N.Y.S.2d 786 (1982); See also, DeGroat v. Kralik, 224 A.D.2d 688, 638 N.Y.S.2d 716 (2d Dep’t., 1996); Shea v. Kralik, 220 A.D.2d 750, 751 633 N.Y.S.2d 178 (2d Dep’t., 1995); Broman v. Stern, 172 A.D.2d 475, 476 567 N.Y.S.2d 829 (1 st Dept. 1991) (Holding, “In general, representations made by an individual who accepts the service of process are not binding on the defendant in the absence of proof that the defendant himself knew of such representations”). In Espy, a process server claimed service on a physician defendant by service of process upon “Ms. ‘Jean Smith,’ nurse authorized to accept on his behalf.” In that action, it was “undisputed that the service was made upon a nurse who held herself out to be an authorized agent of the physician defendant.” Espy, supra at 652. This Court held that even though the nurse represented to the process server that she was authorized to accept service, the formalities of CPLR R. 318 were not complied with and personal jurisdiction was not conferred. Id. Specifically, there was no proof of a written designation by the physician of Nurse Smith as an agent, nor was any writing delineating same filed with the clerk of the county where the physician resided or had his principal office. Id. This Court further held in Espy that service was not proper pursuant to CPLR §308(2) as there was no follow-up mailing to the defendant’s last known 41 residence. Id. at 653. Thus, even if the nurse was considered someone of suitable age and discretion, the requirements of substitute service under CPLR §308(2) were not met. In the case at bar, the Record is absent of any proof that the respondent- physicians designated Ms. Lora Lamb as an agent for service of process in writing, executed and acknowledged in the same manner as a deed and filed with the county clerk where respondent-physicians reside or in Tampa, Florida, where they have their principal place of business. Even assuming appellant’s process server’s statements that Ms. Lamb advised that she was an authorized agent to accept service for the respondent- physicians, such statements are legally insufficient to designate her as an agent pursuant to CPLR R. 318. As such, service on Lora Lamb as an alleged agent for the respondent-physicians was defective, as a matter of law, and the court lacks jurisdiction over them. Even if appellant now argues that Ms. Lamb was of suitable age and discretion to accept service of process, there was no follow-up mailing as required by CPLR § 308(2). (R. 169-173). Therefore, service of process is insufficient pursuant to CPLR § 308(2) and personal jurisdiction cannot be conferred over the respondent-physicians. 42 CONCLUSION Based upon the foregoing, respondents’ respectfully request that the Opinion & Order of the Appellate Division, Second Department, be affirmed in its entirety and the action remain dismissed, together with such other, further and different relief that this Honorable Court may deem just, proper and equitable. Dated: New York, New York February 27, 2014 Respectfully submitted, DeCorato, Cohen, Sheehan & Federico, LLP By:________________________ AMANDA L. TATE Attorneys for Respondents LASER SPINE INSTITUTE, LLC, CRAIG WOLFF, M.D., KEVIN SCOTT, M.D., ROBERT GRUBER, D.O., VERNON MORRIS, M.D. and PETER HOROWITZ, M.D 810 Seventh Avenue, 41 st Floor New York, New York 10019 (212) 742-8700 Of Counsel Joshua R. Cohen, Esq. Amanda L. Tate, Esq.