OPINION OF THE COURT
The principal issue in this case is whether the attachment of a nonresident defendant’s liability insurance policy to obtain jurisdiction as sanctioned in Seider v Roth (
On or about February 11, 1975 and June 9, 1975, plaintiff obtained orders of attachment directing levies against each defendant’s respective liability policies. Both policies were issued and delivered in Florida. Defendants’ respective insurance carriers have offices and do business in New York State. These insurers were timely served with copies of the order of attachment and the complaint in the State of New York. Both defendants were persоnally served with a summons and complaint in the State of Florida within 60 days of the granting of the order of attachment. Plaintiffs have sued to recover for injuries, medical expenses, and loss of services allegedly sustained as a result of defendants’ negligence, malpractice, and breach of contract.
Both defendants move for dismissal, summary judgment, and vacation of the order of attachment, claiming that the court lacks jurisdiction over their persons and property. Both defendants had previously interposed these affirmative defenses in their amended answers. While defendant Ferre’s objection to in rem or quasi-in rem jurisdiction (CPLR 3211, subd [a], par 9) is somеwhat inartfully pleaded, the court construes the objection as not waived.
In Shaffer v Heitner (supra), plaintiff, a nonresident of Delaware, commenced a shareholder’s derivative action in Delaware. Simultaneously, he moved fоr an order of sequestration of the Delaware property of the individual defendants. This motion was granted, and the sequestors seized approximately 82,000 shares of Greyhound common stock belonging to 19 of the defеndants and options belonging to another two defendants. The stock was considered to be in Delaware, and so subject to seizure, by virtue of the Delaware Code (tit 8, § 169), which made Delaware the situs of ownership of аll stock in Delaware corporations. Defendant Shaffer and the other defendants asserted that under the rule of International Shoe Co. v Washington (
The court held (Shaffer v Heitner,
The plaintiff in Shaffer v Heitner did not allege that any of the defendants were ever physically present in Delaware and did not identify any act related to the shareholders’ derivative cause of action as having taken placе in Delaware. Plaintiff Heitner contended that defendants’ positions as directors and officers of a corporation chartered in Delaware provided sufficient contacts, ties and relations to give the Delaware courts jurisdiction. The court rejected this argument and similarly rejected the argument that defendants’ entitlement to the benefits provided by Delaware law for corporate officers and directors were sufficient contacts to support jurisdiction. The court held that Delaware’s assertion of jurisdiction over appellants in this case was inconsistent with the constitutional limitation on State power as exрressed in International Shoe Co. v Washington (supra, p 319). ("[the due process] clause does not contemplate that a state may make binding a judgment . . . against an individual or corporate defendant with which the state has no contacts, ties or relations.”) (Shaffer v Heitner,
The principal lesson from Shaffer v Heitner (supra) is that "all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny”. (Shaffer v Heitner, supra, p 212.)
The constitutional issue presents itself as follows: May a State, which has in personam jurisdiction over insurers and is the residеnce of the injured plaintiffs, exercise jurisdiction in a tort case involving incidents which took place in a foreign jurisdiction and which were allegedly caused by residents of that jurisdiction, to secure the proceеds of a liability policy issued in that foreign jurisdiction? (See Minichiello v Rosenberg, 410 F2d 106, 113 [dissenting opn]; Siegel, 1968 Supplementary Practice Commentary to CPLR 5201, McKinney’s Cons Laws of NY, Book 7B.)
Allegations of negligence, malpractice, and breach of contract are the source of the controversy between these parties. The property or debt attached here is "completely unrelated” to the operative facts of plaintiffs’ causes of action (Shaffer v Heitner, supra). Whatever obligаtions to defendants each insurance policy represents, these plaintiffs concede to be the property or debts of the defendant and seek to apply them to the satisfaction of their claims against these defendants (see Shaffer v Heitner, supra, p 199, n 17). As in Shaffer v Heitner (supra) and Harris v Balk (
The "presence” of defendants’ property or debt in this State is purely fortuitous and does not indicate that the defendants have purposefully availed themselves of the privilege of conducting activities within New York, thus invoking benefits and protection of New York’s laws. (Hanson v Denckla, 357 US 235, 253.) The "presence” of defendants’ liability insurance policies alone does not provide sufficient contacts with New York to support jurisdiction of New York’s courts over defendants.
In their affidavits in opposition and memorandum of law, plaintiffs allege the following "contacts” between defendants and New York State:
1. Both plaintiffs are lifelong domiciliaries and residents of New York and defendants knew this when they treated plaintiff, Michael P. Attanasio.
2. The plaintiff, Michаel T. Attanasio, assigned insurance benefits to the defendants, guaranteed payment to the defendants, and the defendants entered into a contract with the plaintiff. Michael E. Attanasio, a New York resident, signed assignmеnt and guarantee documents within the State of New York. A contract was entered into in New York wherein and
3. Correspondence and communications were had between the plaintiff, while in New York, and the defendants.
4. That any and all insurance benefits which were to be paid to the defendants were tо be made from and through the plaintiff’s employment at the General Electric Company of Schenectady, New York.
5. That the insurance companies, which hold the property of the defendants, are agents of the defendants, have contracted to defend and indemnify the defendants and have been served with process in this action, are doing business in New York, have filed with the New York State Department of Insurance and have contracted to defend and indemnify the defendants in New York.
6. That there existed at the time the causes of action herein arose a doctor-patient and a hospital-patient relationship betweеn the defendants and the plaintiffs at times when the plaintiff and his infant son were residents of and located in the State of New York.
7. That defendants committed tortious acts without the State causing injury to persons and property within the State, and defendants should have expected or should reasonably have expected such acts to have consequences in the State, and they derived substantial revenue from interstate commеrce.
The latter "contact” is an insufficient basis for jurisdiction. The injury alleged occurred in the State of Florida with resultant damage in the State of New York. Thus, jurisdiction, pursuant to CPLR 302 (subd [a], par 3, cl [ii]) cannot be obtained (see Black v Oberle Rentals,
The fifth contact, as noted above, is also an insufficient basis for jurisdiction. Plaintiffs have not alleged or sought leave to discover any acts that the insurers performed in New York on behalf of either defendant hospital or defendant doctor. Nor have defendants alleged or sought to discover the extent of any authority given by the defendants to their respective insurers to do or transact business for the defendants in New
The "contacts” recited in 1 above are obviously insufficient. Treatment of or hospitalization of a New York resident is not a purposeful act by which defendants have availed themselves of the privilege of conducting activities within the foreign State, thus invoking the benefits and protections of its laws (see Hanson v Deckla,
Plaintiff’s father’s execution of the assignment contract as noted in No. 2 above is an insufficient contact to suppоrt New York jurisdiction (see Standard Wine & Liq. Co. v Bombay Spirits,
Defendants’ motions are granted. In summary, neither defendant has sufficient contacts in the State of New York to allow its courts to constitutionally exercise jurisdiction whether in personam or quasi in rem.