Paterno v. Laser Spine Institute
973 N.Y.S.2d 681
N.Y. App. Div.2013Background
- New York plaintiff Frank Paterno viewed an AOL advertisement for Laser Spine Institute (LSI) and, after emailing/telephoning LSI and sending MRI films from New York, traveled to Tampa, Florida for three surgical procedures in June–August 2008.
- Post‑surgery, Paterno had extensive communications with LSI by phone, email, text while in New York; LSI physicians called a New York physician, ordered an MRI in New York, and called in prescriptions filled in New York.
- Paterno alleges malpractice, negligent hiring/supervision, and lack of informed consent; he sued LSI and Florida physician defendants in New York.
- Defendants moved to dismiss for lack of personal jurisdiction under CPLR 302 (a)(1) (transacting business) and 302 (a)(3) (tortious act outside the state causing injury within the state).
- Supreme Court granted dismissal; the Appellate Division majority affirmed, holding LSI’s internet ad/website was passive and the out‑of‑state contacts were insufficiently purposeful to constitute transacting business in New York; the alleged injury’s situs was Florida, so CPLR 302 (a)(3) did not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants "transacted business" in NY under CPLR 302(a)(1) | LSI solicited Paterno via AOL ad; extensive phone/email/text communications, coordination with NY physicians, NY testing and prescriptions show purposeful availment | LSI is a Florida business with a passive website; communications were incidental, surgeries occurred in Florida, no NY office or continuous business in NY | No. Website passive; communications and ancillary acts were insufficiently purposeful to constitute transacting business in NY |
| Whether CPLR 302(a)(3) applies (tortious act outside state causing injury within state) | Post‑surgery injury manifested in NY; ongoing post‑op treatment/communications in NY caused injury there | The original tort (alleged malpractice) occurred in Florida where surgeries were performed; situs of injury is the place of the original event | No. Situs of initial injury is Florida, so 302(a)(3) is inapplicable |
| Whether Zippo/interactive‑website principles and other forum contacts create jurisdiction | Internet solicitation combined with follow‑up communications and NY‑focused post‑op care created a substantial relationship to NY | LSI’s website was passive and the other contacts did not project LSI into NY to invoke NY law protections | The majority: Zippo passive‑site + communications here are not enough; dissent: totality of contacts could satisfy purposeful availment |
| Whether federal LSI decisions elsewhere (Maine, Pa.) require a different outcome | Paterno cites federal cases holding LSI subject to jurisdiction in other states as persuasive | Defendants argue other courts applied different statutes/coextensive due‑process standards and had different factual contacts | The majority: those federal decisions are distinguishable and not controlling under NY’s narrower long‑arm framework |
Key Cases Cited
- Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460 (Court of Appeals 1988) (defines transacting business and purposeful availment under CPLR 302(a)(1))
- Fischbarg v. Doucet, 9 N.Y.3d 375 (Court of Appeals 2007) (focus on quality/nature of contacts and ongoing professional commitment for long‑arm jurisdiction)
- Grimaldi v. Guinn, 72 A.D.3d 37 (App. Div. 2010) (passive websites generally insufficient; passive site plus substantial additional contacts can support jurisdiction)
- Kimco Exch. Place Corp. v. Thomas Benz, Inc., 34 A.D.3d 433 (App. Div. 2006) (facsimile of contracts and few follow‑up calls insufficient for transacting business)
- McGowan v. Smith, 52 N.Y.2d 268 (Court of Appeals 1981) (situs of injury is where original event causing injury occurred)
- International Shoe Co. v. Washington, 326 U.S. 310 (U.S. Supreme Court 1945) (minimum contacts and due‑process framework for personal jurisdiction)