CPLR R. 3211(a)(8)the court has not jurisdiction of the person of the defendant
CPLR § 302 Personal jurisdiction by acts of non-domiciliaries
(a)(3)(ii)
(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:
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
(ii)
expects or should reasonably expect the act to have consequences in the
state and derives substantial revenue from interstate or international
commerce
Vaichunas v Tonyes, 2009 NY Slip Op 03159 (App. Div., 2nd, 2009)
The plaintiff was injured as she exited a jitney bus operated by the
defendant, a non-New York domiliciary, in Atlantic City, New Jersey.
Contrary to the plaintiff's contention, neither the fact that she is a
New York resident (see Fantis Foods v Standard Importing Co., 49
NY2d 317, 326), nor the fact that she sought and obtained medical
treatment in New York, provided a basis for the exercise of personal
jurisdiction over the defendant. Pursuant to the portion of the New
York long-arm statute relied upon by the plaintiff, CPLR 302(a)(3),
personal jurisdiction over a nondomiciliary may be exercised when the
defendant, inter alia, "commits a tortious act without the state
causing injury to person or property within the state." "The situs of
the injury is the location of the original event which caused the
injury, not the location where the resultant damages are subsequently
felt by the plaintiff (see, McGowan v Smith, 52 NY2d 268, 273-274)" (Herman v Sharon Hosp., 135 AD2d 682, 683; see Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793; Marie v Altshuler, 30 AD3d 271, 272-273; Polansky v Gelrod, 20 [*2]AD3d 663, 665; Carte v Parkoff, 152 AD2d 615, 616).Accordingly, we affirm the granting of the defendant's, in
effect, renewed motion pursuant to CPLR 3211(a)(8) to dismiss the
complaint for lack of personal jurisdiction, albeit on a basis slightly
different from that relied upon by the Supreme Court. The situs of the
plaintiff's injury was Atlantic City, New Jersey. Given that the injury
occurred in New Jersey, and involved a nondomiciliary, it was not
necessary to consider whether the additional aspects of CPLR
302(a)(3)(ii) were met (see Siegel, NY Prac § 88, at 164 [4th ed]).
The bold is mine.
bruteforcelawyer.com 