Frank Paterno, Appellant,v.Laser Spine Institute, et al., Respondents.BriefN.Y.October 15, 2014APL-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 PLAINTIFF-APPELLANT LAW OFFICES OF TIMOTHY G. GRIFFIN Attorneys for Plaintiff-Appellant 77 Pondfield Road Bronxville, New York 10708 914-771-5252 Date Completed: January 13, 2014 To Be Argued By: Timothy G. Griffin Time Requested: 30 Minutes -i- TABLE OF CONTENTS Page PRELIMINARY STATEMENT ............................................................................... 1 STATEMENT OF FACTS ........................................................................................ 2 LEGAL ARGUMENT ............................................................................................. 12 THERE WERE SUFFICIENT CONTACTS AND PURPOSEFUL ACTIVITY ENGAGED IN BY THE DEFENDANTS WITHIN THE STATE OF NEW YORK TO ENABLE THE COURT TO EXERCISE JURIDICTION .................................................. 12 A. There are sufficient purposeful acts of the Respondents which subject them to the jurisdiction of the New York courts .................................................... 12 B. LSI has Been Found Subject to the Jurisdiction of Courts in Other States for Similar Conduct .................................... 25 CONCLUSION ........................................................................................................ 27 -ii- TABLE OF AUTHORITIES Page Cases Apicella v Valley Forge Military Academy & Jr. Coll., 103 AD2d 151................. 17 Best Van Lines, 490 F.3d at 246 .............................................................................. 23 Bond v Laser Spine Inst., LLC (2010 WL 3212480, 2010 US Dist LEXIS 82736 [ED Pa]). ....................................................... 25, 26 Catauro v Goldome Bank, 189 AD2d 747 ............................................................... 16 Farkas v. Farkas, 36 A.D.3d 852 (N.Y. App. Div. 2d Dep't 2007) ......................... 16 Fischbarg v Doucet, 9 NY3d 375 ............................................................................ 16 Grimaldi v. Guinn, 72 A.D.3d 37 (N.Y. App. Div. 2d Dep't 2010) ............ 16, 17, 18 Hanson v Deckla, 357 US 235 (1958) ..................................................................... 22 Henderson v. INS, 157 F.3d 106 (2d Cir. 1998) ...................................................... 23 Henderson v. Laser Spine Inst. LLC, 815 F. Supp. 2d 353 ( D. Me) ...................... 25 International Finance B.V. v. National Reserve Bank, 98 N.Y. 201, 713 N.Y.S. 631 (2002) ...................................................................................... 22 Kreutter v McFadden Oil Corp., 71 NY2d 460 ....................................................... 15 LaMarca v Pak-Mor Manufacturing Co., 95 NY2d 210, 713 NYS2d 304 (2000) ..................................................................................... 22 Longines-Wittnauer Watch Co. v Barnes & Reinecke, Inc., 15 NY2d 443, 261 NYS2d 8 (1965) cert denied 382 US 905 .......................... 21 McGee v International Life Ins. Co., 355 US 220 [1957] ....................................... 22 McGowan v Smith, 52 NY2d 268 ........................................................................... 16 -iii- McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377 ......................................... 16 Multi-Modal v Anglia North America, Inc., 227 AD2d 600 ................................... 16 Nemetsky v Banque de Development de la Republique Du Niger, 65 AD2d 748, affd. 48 NY2d 962 ..................................................................... 17 Parke-Bernet Galleries v Franklyn, 26 NY2d 13 ..................................................... 15 Reiner & Co v Schwartz, 41 NY2d 648 .................................................................. 15 SAS Group, Inc. v Worldwide Inventions, Inc., 245 F. Supp 2d 543 (SDNY 2003) .................................................................................................... 21 Statutes CPLR § 302 .............................................................................................................. 14 CPLR §302(a) .................................................................................................... 14, 18 CPLR § 302(a)(1) ......................................................................................... 15, 16, 22 CPLR § 302(a)(3) ..................................................................................................... 23 CPLR § 302(a)(3)(ii) ................................................................................................ 24 CPLR § 3111(a)(8) ................................................................................................... 11 -1- STATE OF NEW YORK COURT OF APPEALS ---------------------------------------------------------------X FRANK PATERNO, APL 2013-00327 Westchester Co. Index No.: Appellant, 22125/2010 App. Div. Second Dept. -against- Docket No.: 2011-04654 LASER SPINE INSTITUTE, CRAIG WOLFF, M.D., KEVIN SCOTT, M.D., ROBERT GRUBER, D.O., VERNON MORRIS, M.D., AND PETER HOROWITZ, M.D., Respondents. --------------------------------------------------------------X Preliminary Statement This action is for medical malpractice. Frank Paterno, the plaintiff- appellant, (hereinafter “Paterno” or “Appellant”) hereby appeals the Decision and Order of the Supreme Court of the State of New York, Appellate Division: Second Judicial Department, dated October 16, 2013. The Decision and Order affirmed the March 25, 2011 order of the Supreme Court, Westchester County (Nicholas Colabella, J.), granting the motion of the respondents Laser Spine Institute (hereinafter “LSI”), Craig Wolff, M.D., Kevin Scott, M.D., Robert Gruber, D.O., Vernon Morris, M.D. and Peter Horowitz, M.D. (collectively the “Individual Respondents”) to dismiss the action on the ground of lack of long-arm jurisdiction. -2- Paterno is a resident of the State of New York. The respondent LSI is a surgical center located within the state of Florida. The Individual Respondents are physicians licensed to practice medicine in Florida. All surgical procedures at issue in this litigation took place in Florida. Paterno asserts herein that all of the Respondents engaged in purposeful activities within New York both directly through interaction with Paterno as well as his New York physicians and through the website maintained by the Respondents. Paterno further asserts that the Decision and Order is incorrect and the Appellate Division, Second Judicial Department erred on both the law and the facts. Paterno asserts that the Decision and Order should be reversed in its entirety. STATEMENT OF FACTS In the spring of 2008, Paterno was suffering from severe back pain. He learned of LSI in May, 2008. (R 46) 1 LSI advertised on the front page of American Online’s (“AOL”) website home page. In that advertisement, LSI posted a five (5) minute video presentation of golf professional Peter Jacobson giving credible, persuasive and comprehensive testimony of had he had two surgeries with LSI in three days and that he returned to compete on the PGA Tour in ten (10) days. 1 Referenced to (R ____) are to specific pages of the Record on Appeal. -3- In direct response to this advertisement, Paterno contacted LSI by telephone and internet to inquire of the available surgical procedures and to get an evaluation of his personal medical condition in order to determine his suitability for surgery at LSI and by the Individual Respondents. (R 46) Dr. Vitto Dimatteo was a treating physician of Paterno in New York. On May 29, 2008, Paterno emailed Dr. Dimatteo and inquired if he would review the LSI website and get his opinion and participate in a telephone call with an LSI physician to discuss the particular procedures proposed by LSI. (R 46) Dr. Dimatteo and Paterno participated in a telephone conference call with Mr. Andrew Vaught, who identified himself as a patient advocate at LSI. Prior to the conference call Paterno had sent his MRI films to LSI for review. Mr. Andrew Vaught, in the telephone call with Paterno and his physician, Dr. DiMatteo, acknowledged receipt of the films. (R 46-47) On May 30, 2008, Paterno received two emails from Mr. Vaught with attachments containing the private insurance forms and a letter setting forth findings of the LSI physician’s review of his MRI films which listed the supposed abnormalities and the surgery recommendations. (R 46-47, R 74) Later, on that same date, Paterno was again contacted by Mr. Vaught by telephone. In that conversation, Paterno was advised that LSI had a cancellation -4- and if Paterno was willing to travel to Tampa on short notice, LSI could perform the surgical procedure. (R 46-47) Vaught, on behalf of LSI, offered June 9, 2008 as a date for surgery. If Paterno was able to make it on that day, LSI would perform the surgery at a significant discount. On June 2, 2008, Paterno completed the private insurance form that Paterno received from Andrew Vaught and forwarded it to LSI. (R 47, R 81) Paterno then contacted LSI and attempted to renegotiate the payment arrangements concerning the surgery. Also on that date Paterno received an email reply from Mr. Vaught stating that the arrangement on payments could be signed upon his arrival on the day of surgery. Mr. Vaught also provided to Paterno a list of hotels in Tampa Florida that offered LSI patients a discount. (R 86-92) On June 3, 2008, Paterno received, by email, a thirty (30) page registration form that needed to be completed prior to surgery at LSI. (R 47, R 113) This form to Paterno in New York and was sent by Victoria Soroko, the LSI Scheduling Assistant. Paterno replied by email to Ms. Soroko acknowledging receipt of her form and Paterno raised a few questions. This form was completed by Paterno in New York and forwarded to LSI in Florida. Paterno then was requested by another representative of LSI to send his “blood work”. Later that same day, June 3, 2008, Victoria, an additional LSI -5- representative, called Paterno back to discuss and answer the questions that Paterno raised. One of the questions on the registration form was how Paterno heard of LSI. Paterno checked off the box internet and related to her the compelling story of Peter Jacobson, the golf professional, the led Paterno to ultimately considering surgery. Paterno attempted to schedule a conference call between his New York physician, Dr. Dimatteo, and the LSI Physician Dr. Perry on June 3, 2008, but Dr. Perry of LSI was not available. (R 48) On June 4, 2008, the following day, Paterno was advised by Dr. Dimatteo that a physician at LSI had contacted him, by telephone in New York, on Paterno’s behalf, and briefly discussed Paterno’s pending surgery. Paterno also had his blood work completed at the office of his family physician in White Plains, New York and the results were sent to LSI at LSI’s request. On June 6, 2008, Paterno left his home in New Rochelle, New York and travelled to the LSI facility in Tampa, Florida for surgery. (R 48) On June 9, 2008, Paterno had his initial surgical procedure at LSI. Dr. Kevin Scott was the surgeon. Following the surgery, Paterno immediately felt pain down his right leg. Paterno did not have this pain prior to the surgery. Paterno was -6- advised by the LSI staff that this pain may be from the epidural and that it could last for two (2) weeks. (R 48) On June 11, 2008, Paterno underwent his second surgery. Dr. Vernon Morris at LSI was the surgeon. (R 48) On June 12, 2008, Paterno departed Tampa, Florida in severe pain and returned to New York. (R 48) From the period June 12, 2008 through June 26, 2008, Paterno called the physicians at LSI from his residence in New York on a daily basis and had discussions with them concerning his medical status. (R 49) Paterno advised the physicians of the constant pain that he was suffering and Paterno requested medication for the pain. Physicians and staff from LSI contacted by telephone the local pharmacies that Paterno used in New Rochelle, New York and prescribed pain medication for Paterno. (R 49) Paterno filled these prescriptions at the local pharmacies. The prescriptions were prescribed by the physicians at LSI, in Florida, ordered by telephone, and filled at local pharmacies in New Rochelle, New York. On July 8, 2008, Paterno scheduled an appointment with Dr. Bradley Cash in Eastchester, New York. (R 49) Dr. Cash referred Paterno to Dr. Jack Stern in White Plains, NY for an opinion on his current physical condition and the results of the surgery that Paterno had at LSI. -7- On July 14, 2008, Paterno was examined by Dr. Stern who assisted LSI with an MRI request. (R 49) Dr. Stern compared his pre-surgery MRI to his post surgery MRI. Dr. Stern observed disc herniations from the pre-surgery study and confirmed that the same herniations existed post surgery. At Paterno’s request, Dr. Stern and physicians associated with LSI engaged in a conference call to discuss the results of Paterno’s surgery. As a result of that conference call LSI agreed to fly Paterno back to Tampa, at its cost and expense, and at no cost to Paterno for a corrective surgical procedure. During this time period, July, 2008 through August 3, 2008, Paterno participated in numerous telephone calls and email exchanges with Cyndi Nation who was head of Patient Advocacy/Relations at LSI. (R 49-50) Paterno demanded that LSI provide the most experienced surgeon to handle his corrective surgery when he returned to Tampa. Ms. Nation advised Paterno that Dr. Craig Wolff was the most experienced surgeon and he would perform the corrective surgery. On August 6, 2008, Paterno had corrective surgery which was performed by Dr. Craig Wolff at the LSI facility in Tampa, Florida. (R 50) Post surgery, Paterno was advised by Dr. Wolff that “he removed a bone chip on the nerve, left over from Dr. Scott’s first surgery.” (R 50) Following this surgery, Paterno was also in severe pain. -8- Paterno remained in his hospital, in constant pain until Paterno left Tampa again on August 9, 2008. (R 50) During the period August 9, 2008 through and including October 31, 2008, Paterno communicated almost daily with Cyndi Nation at LSI via text messages, phone calls and emails. (R 50) These emails advised Ms. Nation concerning the symptoms, headaches and confusion Paterno was suffering. Paterno also advised her that Paterno was frustrated that Paterno was not received return telephone calls to address the pain that Paterno was suffering. On August 18, 2008, Paterno had a telephone call with Dr. Wolff’s assistant nurse named Sherri concerning the pain that he was suffering. (R 50) She advised Paterno to take the pain medication that had been prescribed by LSI and filled at local pharmacies in New York. On August 26, 2008, in addition to the severe low back pain and leg pain, Paterno suddenly started getting severe headaches. (R 50-51) On August 27, 2008, Paterno contacted his LSI surgeon Dr. Wolff by telephone and explained the symptoms. (R 50-51) Dr. Wolff ordered an MRI to be performed at Highfield Open MRI of Tarrytown, New York. The MRI showed a collection of fluid surrounding the surgical area. Following that conversation with Dr. Wolff, Paterno visited Dr. Bradley Cash in White Plains again. (R 51) During his visit, Dr. Cash consulted with Dr. -9- Stern and they both determined that the fluid was from a possible dura leak. 2 Thereafter from August 27, 2008 through September 22, 2008, Paterno made multiple phone calls to LSI, received multiple phone calls from LSI, and sent and received numerous text messages to LSI employees. (R 51) The culmination of these calls and text messages resulted in a conference call between Dr. Wolff and Dr. Bradley Cash. Dr. Wolff reviewed the MRI films again on August 28, 2008 and concluded with Dr. Cash that Paterno had a dura leak. (R 51) Dr. Wolf offered Paterno the opportunity to return to LSI for the second time to undergo another procedure where they would address the dura leak. On August 29, 2009, Paterno again spoke with Cyndi Nation of LSI and LSI again offered to fly Paterno to Tampa, at LSI’s expense, to address the problem. Dr. Wolff said that the additional procedure would cause additional pain and would delay the healing process. Paterno could not tolerate more pain and Paterno decided to wait to see if the pain subsided. Dr. Wolff advised Paterno the lay flat for 24-48 hours. Paterno did and the pain subsided somewhat. On September 7, 2008 Paterno emailed Trey Traveisa, the President of LSI and explained his predicament. (R 51, R 125) Mr. Traveisa replied and advised Paterno that the physicians were evaluating his case and he would follow up with 2 A watertight sac of tissue (dura mater) covers the spinal cord and the spinal nerves. -10- him. On September 10, 2008, Mr. Traveisa responded directly to Paterno and stated that nothing was wrong and invited that Paterno call him on his cell phone. (R 52, R 128) Paterno did call him on his cell phone. On September 11, 2008, Paterno visited Dr. Steven Landau in White Plains, New York. (R 52) At the time his neck was swollen and Paterno was worried that it had something to do with his cervical spine. Dr. Landau contacted another Orthopedist who confirmed that the swelling was probably pressure from his dura leak. On that same day Paterno emailed and called Mr. Trey Traveisa and related the substance of his medical visit. (R 52, R 127) During the period from September 11 through September 30, 2008, Paterno made numerous attempts to get further information from LSI. Paterno emailed Trey Traveisa, and Cyndi Nation and requested follow up calls with Dr. Wolff. (R 52-53) Paterno requested that his MRI films that were taken by LSI be sent to Paterno so that Paterno could arrange for a consultation with a local physician. In addition, Paterno requested that they fax the reports and the new surgery recommendations to Dr. Cash as prescribed and recommended by Dr. Wolff for the dura leak. (R 52-53, R 130) On September 30, 2008, Paterno scheduled an appointment with Dr. Debbie Petrucci in New York. (R 53) She reviewed all the films that Paterno had in his possession including the MRI films provided by LSI. Dr. Petrucci did not -11- recommend that Paterno have any more surgeries. Following that appointment Paterno contacted Dr. Frank Cammisa and requested a consultation. Dr. Cammisa is affiliated with the Hospital of Special Surgery in New York. From September through December, 2008, Paterno made multiple attempts to obtain his medical records from LSI. (R 53) On October 8, 2009, Dr. Cammisa referred Paterno to Dr. Heisie who scheduled a CT Mylogram. (R 53) The CT scan revealed a large pseudomeningocele and the removal of the entire facet bone at L4/L5 causing severe instability. It also revealed impingement of the L/5 nerve root. The pseudomeningocele never healed and the pain worsened and on April 3, 2009 Paterno underwent a third surgical procedure under the care of Dr. Cammisa in New York to correct the condition caused by the surgical procedures taken at LSI. (R 53) Paterno commenced the underlying action for medical malpractice in the State of New York. In this proceeding Paterno asserts that the conduct of the Respondents deviated from accepted medical practice and was negligent, resulting in severe injury to him. The defendant-respondents moved to dismiss the complaint on the basis CPLR § 3111(a)(8) on the grounds that the Court lacks personal jurisdiction over the Respondents in within matter, and the Supreme Court, Westchester County granted the Defendants’ motion to dismiss the complaint for lack of personal -12- jurisdiction on March 25, 2011. The Appellate Division: Second Judicial Department affirmed the order of the Supreme Court, Westchester County on October 16, 2013, with the Honorable Judges Thomas Dickerson and Priscilla Hall dissenting. This appeal followed. LEGAL ARGUMENT THERE WERE SUFFICIENT CONTACTS AND PURPOSEFUL ACTIVITY ENGAGED IN BY THE DEFENDANTS WITHIN THE STATE OF NEW YORK TO ENABLE THE COURT TO EXERCISE JURIDICTION A. There are sufficient purposeful acts of the Respondents which subject them to the jurisdiction of the New York courts. The Respondents sought dismissal of the complaint on the grounds that they did not transact business in or, with respect to the physicians, are not licensed to practice medicine in the State of New York. The Respondents assert that they generally do not do business in the State of New York which would subject the Respondents to the jurisdiction of the Courts of the State of New York. It is respectfully submitted that facts of this matter clearly and unequivocally establish that the Respondents did conduct business within the State of New York. LSI and its employees actively solicited Paterno to come to their Florida facility to -13- have surgery; conducted extensive pre-surgical patient review prior to Paterno travelling to Florida; interacted with Paterno’s physicians prior to his surgery; solicited Paterno’s private medical information to be sent to it prior to Paterno’s arrival in Florida; LSI representatives engaged in numerous telephone calls and other forms of electronic communications with Paterno and his physicians within the state of New York both prior to the surgery and subsequent to the surgery; LSI physicians and employees actively assisted Paterno in connection with the corrective surgical procedures that Paterno underwent; LSI prescribed medications from Florida to New York pharmacies; LSI physicians ordered medical procedures from Florida to be performed in New York ( MRIs) and directly consulted with New York physicians in connection with corrective surgical procedures. 3 It is submitted that these solicitations and interactions by and between LSI and Paterno standing alone would be sufficient for this Court to exercise 3 The Court should be aware that subsequent to the Appellant’s surgery, LSI has maintained a presence within the State of New York. LSI has not only solicited customers in New York through advertisements online, but LSI conducted informational seminars within the state of New York, as recently as November 2010, at which potential patients could: “1. A board certified physician will host an educational lecture pertaining to the services LSI offers. 2. Patients who bring their most recent MRI films, CD, reports or CT scans will have the opportunity to privately meet with a physician or surgeon. This doctor will perform a review of your most recent medical records to determine if LSI’s endoscopic spinal procedures can benefit you. This consultation allows each person to receive individual attention to discuss findings, surgical recommendations and any individual medical inquiries that you may have. 3. Patient advocates will be available to discuss any additional questions or concerns that you may have. This one on one meeting may include discussions relevant to insurance questions, scheduling processes and what the next step may be for you.” -14- jurisdiction over the Respondents. Representatives of LSI communicated with Mr. Paterno and his physicians in New York frequently by telephone, email, and other electronic means. In fact, Dr. Wolff, a defendant herein, contacted Highfield Open MRI of Tarrytown, New York and ordered an MRI for Mr. Paterno. Clearly this is a purposeful activity within the State of New York by the Respondents. Further, physicians at LSI contacted local pharmacies in New York State and ordered prescriptions on Paterno’s behalf, which were subsequently filled by Paterno. There is also an extensive email history between Mr. Paterno and representatives of LSI concerning his initial surgical procedures, his follow up surgery and the poor results from the surgical procedures. (R 112-158) In addition, Mr. Paterno’s physicians in New York consulted with representatives of LSI on numerous occasions, both prior to the initial surgery and subsequent to the surgical procedures. CPLR §302(a) governs personal jurisdiction over non-domiciliaries. That section provides in pertinent part: § 302. Personal jurisdiction by acts of non-domiciliaries: (a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non- domiciliary, or his executor or administrator, who in person or through an agent: 1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or -15- 2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or 3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he: (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or 4. owns, uses or possesses any real property situated within the state. CPLR 302(a)(1) authorizes the court to exercise jurisdiction over non- domiciliaries for tort and contract claims arising from a defendant's transaction of business in this State. It is a "single act statute" and proof of one transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters New York, so long as the defendant's activities here are purposeful and there is a substantial relationship between the transaction and the claim asserted Kreutter v McFadden Oil Corp., 71 NY2d 460, 466; Reiner & Co v Schwartz, 41 NY2d 648, 651-652; Parke-Bernet Galleries v Franklyn, 26 NY2d 13, 16-17. The Court of Appeals has also previously determined that "[p]urposeful activities are those with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and -16- protections of its laws" Fischbarg v Doucet, 9 NY3d 375, 380, quoting McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377, 382. The Court's determination of whether the Respondents have engaged in sufficiently purposeful activity to confer long-arm jurisdiction is based on an examination of the totality of the circumstances. Multi-Modal v Anglia North America, Inc., 227 AD2d 600; Catauro v Goldome Bank, 189 AD2d 747.The Supreme Court of the State of New York, Appellate Division, Second Department has also noted that “[w]hether a non-domiciliary has engaged in sufficient purposeful activity to confer jurisdiction in New York requires an examination of the totality of the circumstances.” See Farkas v. Farkas, 36 A.D.3d 852, 853 (N.Y. App. Div. 2d Dep't 2007) (Emphasis Supplied). The Appellate Division, Second Department has also stated that the “purposeful creation of a continuing relationship has been a contributing factor in finding sufficient contacts to justify the exercise of long-arm jurisdiction” See Grimaldi v. Guinn, 72 A.D.3d 37, 44 (N.Y. App. Div. 2d Dep't 2010). With respect to "substantial relationship," the Court of Appeals has declared that even if the defendant has engaged in purposeful acts in New York, there must be a "substantial relationship" between those acts and the transaction upon which the plaintiff’s cause of action is based. McGowan v Smith, 52 NY2d 268. An essential criterion for long-arm jurisdiction under CPLR 302(a)(1) is that the cause -17- of action "arise" out of the business transacted in New York Apicella v Valley Forge Military Academy & Jr. Coll., 103 AD2d 151, 154; Nemetsky v Banque de Development de la Republique Du Niger, 65 AD2d 748, affd. 48 NY2d 962. Here it is respectfully submitted that the “totality of the circumstances” warrants the exercise of jurisdiction over the Respondents. It is submitted that the majority court in the decision below focused the analysis too narrowly on the AOL website which initially attracted Paterno to LSI. It is submitted that this Court should look beyond the AOL website to the totality of events which clearly indicate that the Respondents engaged in numerous purposeful acts within the State of New York. Indeed, both the majority and the dissent, point to Grimaldi v. Guinn, Grimaldi v. Guinn, 72 A.D.3d 37, 44 (N.Y. App. Div. 2d Dep't 2010). There the Appellate Division for the Second Department found that an out-of-state Pennsylvania mechanic had sufficient contacts with New York and was subject to personal jurisdiction within the State of New York based on the deployment of a passive website when looked at in conjunction with the “number, nature, and timing of all of the contacts involved, including the numerous telephone, fax, e- mail, and other written communications with the plaintiff in New York” See Grimaldi v. Guinn, 72 A.D.3d at 51. As Judge Dickerson notes, there were less contacts with New York in Grimaldi than here. He states: -18- “The contacts described above demonstrate the “purposeful creation of a continuing relationship with the plaintiff…Indeed these contacts were more extensive than those at issue in Grimaldi v. Guinn, in which this Court concluded that, based on the deployment of a passive website, coupled with “the number, nature and timing of all of the contacts involved, including the numerous telephone, fax, e-mail and other written communications with eh plaintiff in New York” the defendant Guinn had sufficient contact with New York State to confer jurisdiction over him.” (R 217) Similarly, here, the Respondents have purposefully created a continuing relationship with the Plaintiff in the State of New York based on their continuing relationship within New York. LSI and the Individual Respondents have collectively engaged in numerous telephone, email, and text message communications with the plaintiff in New York, have regularly communicated with plaintiff’s New York-based physicians and doctors, and have prescribed medications and ordered medical procedures (bloodwork) and diagnostic tests (MRIs) to be performed in New York State. It is submitted that the defendants have engaged in a course of activity that clearly and unequivocally satisfies the jurisdictional requirements of CPLR 302(a). There can be no doubt that the defendants transacted business within the State of New York. LSI advertised it surgical services in New York on its website. Thereafter, LSI directly solicited Mr. Paterno to promptly schedule a surgical procedure at LSI at a substantial discount. Prior to the surgical procedure Mr. -19- Paterno emailed representatives of LSI. Mr. Paterno had extensive communications with representatives of LSI prior to his surgery. In summary those communications prior to his first surgical procedure are as follows: o On May 29, 2008, he had a telephone call with Mr. Andrew Vaught, who identified himself as a patient advocate at LSI. Mr. Vaught of LSI acknowledged receipt of the MRI films that Mr. Paterno had sent to him. (R 46) o On May 30, 2008, Mr. Paterno received two emails from Mr. Vaught with attachments containing the private insurance forms and a letter setting forth findings of the LSI physician’s review of his MRI films which listed the supposed abnormalities and the surgery recommendations. (R 46-47, R 74) He was also contacted by Mr. Vaught and was advised that LSI had a cancellation and if he was willing to travel to Tampa on short notice, LSI proposed June 9, 2008. (R 47) o On June 2, 2008, Mr. Paterno completed the private insurance form that Paterno received from Andrew Vaught of LSI. (R 47) He also attempted to negotiate the payment arrangements on those dates. He received an email reply from Mr. Vaught that the arrangement on payments could be signed upon his arrival on the day of surgery and was provided by Mr. Vaught with a list of hotels in Tampa Florida that offered LSI patients -20- a discount. (R 81) On June 3, 2008, he received via email a thirty (30) page registration form from Victoria Soroko, the LSI Scheduling Assistant. He completed the form and returned it to LSI. (R 84-112) o On June 4, 2008 Mr. Paterno was advised by his local physician that a physician at LSI had contacted him and briefly discussed his pending surgery. (R 48) He also forwarded his blood work to LSI at LSI’s request. o Between June 6, 2008 and June 12, 2008, he travelled from his home in New Rochelle, New York to the LSI facility in Tampa, Florida for surgery. (R 48) o On June 9, 2008, Mr. Paterno had his first surgery at LSI with Dr. Kevin Scott. (R 48) o On June 11, 2008, Mr. Paterno underwent a second surgical procedure with Dr. Vernon Morris at LSI. (R 48) o On June 12, 2008, he departed Tampa, Florida in severe pain. (R 48) Prior to the surgery, it is clear that LSI was transacting business within the State of New York with respect to the preparations that were conducted for Mr. Paterno’s surgery. LSI tendered a questionnaire and it was returned to LSI by Mr. Paterno. LSI consulted with Mr. Paterno’s local physician. LSI obtained copies of Mr. Paterno’s blood work. Certainly these are “purposeful” acts which warrant the exercise of jurisdiction by the Court. -21- Paterno also underwent corrective surgery. During this time, following a discussion with his New York physician, Paterno, was flown back to Tampa, Florida at the expense of LSI to have the initial procedure corrected. Further the litany of email communications and telephonic communications between LSI and its representatives and Paterno and his physicians clearly subjects LSI and the Individual Defendants to the jurisdiction of this Court. There is also no question that the conduct of LSI constitutes the transaction business within the State of New York. To determine whether a party has "transacted business" in New York a court must consider "the totality of circumstances when determining the existence of purposeful activity" SAS Group, Inc. v Worldwide Inventions, Inc., 245 F. Supp 2d 543, 548 (SDNY 2003). Thus, it has been held that the statutory test may be satisfied by a showing of other purposeful acts performed by the defendant in New York in relation to the contract, albeit preliminary or subsequent to its execution, even when the last act marking the formal execution of a contract, may not have occurred within New York. See Longines-Wittnauer Watch Co. v Barnes & Reinecke, Inc., 15 NY2d 443, 457, 261 NYS2d 8 (1965), cert denied 382 US 905. The facts here also satisfy the “substantial relationship” test. This Court has held that there must be a "substantial relationship" between those acts and the transaction upon which the plaintiff’s cause of action is based. This is an action for -22- medical malpractice for the surgical procedures which were conducted by LSI and the named physicians upon Mr. Paterno. The physicians are employees or are otherwise affiliated with LSI. There is no question that LSI and its agents transacted business within the state of New York. Once a court determines that defendant has transacted business pursuant to CPLR §302(a)(1), then it must determine whether the exercise of jurisdiction comports with due process. International Finance B.V. v. National Reserve Bank, 98 N.Y. 201, 713 N.Y.S. 631 (2002); LaMarca v Pak-Mor Manufacturing Co., 95 NY2d 210, 713 NYS2d 304 (2000). Due process is not offended "[so] long as the party avails itself of the benefits of the forum, has sufficient minimum contacts with it and, should reasonably expect to defend its action there [...] even if not present in the state (McGee v International Life Ins. Co., 355 US 220, 222-223 [1957]). To satisfy the minimum contacts requirement, it is essential that there be "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v Deckla, 357 US 235, 253 (1958). The cause of action in this suit plainly arises from Defendant's transaction of business with its New York client, Paterno. "[A] suit will be deemed to have arisen out of a party's activities in New York if there is an articulable nexus, or a -23- substantial relationship, between the claim asserted and the actions that occurred in New York." Best Van Lines, 490 F.3d at 246 (citing Henderson v. INS, 157 F.3d 106, 123 (2d Cir. 1998)) It is apparent that the defendants have satisfied the provisions of CPLR 302(a)(3) in that they have committed a tortuous act without the state causing injury to a person within the state. It is apparent that LSI solicited Paterno for surgery in Florida and thereafter performed medical activities, including without limitation, consultations, prescribing prescriptions and ordering medical tests in New York State. Prior to the surgery, LSI solicited Paterno’s business. LSI even encouraged Paterno to arrive at the LSI facility sooner because it had a cancellation. It promised Paterno, if he came earlier, he would have his surgery performed at a discounted price. (R 46-47) Subsequent to the surgery, when problems developed, LSI representatives had conferences with Paterno’s New York physicians. Following those discussions, LSI offered to, and ultimately did, fly Paterno to Tampa, Florida, at its expense for corrective surgery. Following the corrective surgery, LSI actively monitored Paterno’s post-surgical status in New York and, inter alia, prescribed pain medication for him. (R 49-50) Prior to the Paterno surgery, LSI was actively soliciting residents of New York state for surgical procedures. Currently, LSI is soliciting potential clients -24- from New York State. Without question LSI could reasonably anticipate their actions, whether successful or unsuccessful, would have consequences in the state of New York. If the original AOL website was passive, the subsequent actions on the part of LSI were active and focused on the surgical and recovery process for Paterno. Here, the negligence of LSI and its physicians has had severe consequences in the State of New York: Mr. Paterno was severely injured and disabled by the negligence of LSI and its physicians. LSI should not now be permitted to avoid liability for the injuries which were admittedly caused to Paterno on the basis of lack of contacts with the State of New York. There is no question that pursuant to CPLR 302(a)(3)(ii) that LSI “expects or should reasonably expect that act to have consequences in the state and derives substantial revenue for interstate or international commerce.” LSI conducts seminars for its services in the following states: New York, Florida, Pennsylvania, Arizona, Texas, New Jersey, Oregon, Ohio and California. It clearly derives substantial revenue from interstate commerce. There is no question that the string of email communications with Paterno and his physicians by representatives of LSI subjects LSI and the individual defendants to the jurisdiction of New York courts. The emails are voluminous and appear in the record on pages R 112 through R 158. -25- B. LSI has Been Found Subject to the Jurisdiction of Courts in Other States for Similar Conduct A finding by this Court that jurisdiction may be conferred on the Respondents is also in accord with two recent federal district court decisions in which the Laser Spine Institute was found to be subject to personal jurisdiction in states outside of Florida where it had no established physical presence. In Henderson v. Laser Spine Inst. LLC, 815 F. Supp. 2d 353 ( D. Me) and Bond v Laser Spine Inst., LLC (2010 WL 3212480, 2010 US Dist LEXIS 82736 [ED Pa]). Here, the majority decision distinguished Henderson on the grounds that the present record does not contain any evidence that LSI solicited the plaintiff’s business other than the passive AOL website. (R 206). In Bond, the majority noted that there was a greater interaction between LSI and Mr. Bond and his physicians. The Court is respectfully directed to the holding in Bond. There the interaction between LSI and Mr. Bond and his physicians is extremely similar to the activities between LSI and Paterno and his physicians here. As Judge Dickerson notes in the dissent (R 219): The minimum contacts found sufficient in Bond included the following: “LSI communicated directly with Mr. Bond while Mr. Bond was in Pennsylvania via Dr. Michael Perry, and encouraged Mr. Bond to travel to LSI’s facility in Tampa for -26- surgery. LSI assisted Mr. Bond in making his travel plans to got to LSI in Tampa for surgery. Additionally. LSI staff spoke with Mr. Bond on the phone repeatedly after surgery while he was on the phone after the surgery while he was in Pennsylvania, diagnosed his post-surgery pain as ‘part of the healing process’ prescribed steroids for him and call in the prescription to this pharmacy, advised him to see a neurosurgeon at Bryn Mawr Hospital and advised the Bryn Mawr Hospital emergency rook technician to prescribe more steroids. Moreover, the LSI doctor who advised the Bryn Mawr Hospital emergency room technician, Dr. Vernon Morris, is advertised on the LSI website as a ‘ senior member of the LSI surgical team and ‘lead[er of] the Pennsylvania LSI surgical team (Bond v. Laser spine Inst., LLC 2010 WL3212480, *9, 2010 US Dist Lexis 82736, * 26-27 [citations omitted]). It is submitted that the activities of LSI in Bond closely resemble the activities of LSI at issue here. Indeed, absent the consultation in the emergency room, LSI and its physicians, including leading members of the LSI team (Dr. Vernon Morris) participated in the same exact activities. In Henderson and Bond the District Courts found that LSI purposefully availed itself to the jurisdiction of the forum states finding minimum contacts sufficient to support jurisdiction. So too, here, there are sufficient minimum contacts to warrant the exercise of jurisdiction over LSI and the Individual Respondents. It is respectfully submitted that the Court below focused its inquiry too narrowly on the AOL website and did not consider the totality of the acts of LSI in connection with the pre-surgical, surgical and post surgical procedures concerning Paterno. The “totality of circumstances” here clearly indicate an active and -27- involved process by LSI in New York State prior to and subsequent to the surgery. Without question there are sufficient minimum contacts sufficient to support jurisdiction over LSI in this proceeding. Conclusion For the reasons set forth herein it is respectfully submitted to this Court that the decision and order of the Appellate Division, dated October 16, 2013, be reversed in its entirety. Dated Bronxville, New York January 13, 2014 Respectfully Submitted, Law Offices of Timothy G. Griffin By:___________________________ Timothy G. Griffin 77 Pondfield Road Bronxville, New York 10708 (914) 771-5252