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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 186
Frank Paterno,
            Appellant,
        v.
Laser Spine Institute, et al.,
            Respondents.




          Timothy G. Griffin, for appellant.
          Joshua R. Cohen, for respondents.




RIVERA, J.:
          Plaintiff Frank Paterno appeals from the dismissal for
lack of personal jurisdiction of his medical malpractice action
against non-domiciliary defendants Laser Spine Institute (LSI),
and various LSI professionals.    We conclude that defendants'

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contacts with New York are insufficient to confer long-arm
jurisdiction under CPLR 302 (a) (1).     We further reject
plaintiff's alternative basis for personal jurisdiction under
CPLR 302 (a) (3) because he suffered his injuries outside the
State.   Therefore, we affirm.


                                  I.
            In May 2008, plaintiff was suffering from severe back
pain.    While on the homepage of a well-known internet service
provider plaintiff discovered an advertisement for LSI, a
surgical facility specializing in spine surgery, with its home
facility and principal place of business in Tampa, Florida.
Plaintiff clicked on the LSI advertisement, and viewed a 5-minute
video presentation of a testimonial from a former LSI patient and
professional golfer, extolling LSI's medical services.       The
advertisement appeared to hold out the promise of relief for
plaintiff's back problems so he communicated with LSI by
telephone and internet to inquire about possible surgical
procedures to alleviate his pain. These would be the first of
plaintiff's several contacts with LSI, which led to his eventual
decision to undergo surgical procedures by LSI medical
professionals in Florida.   Those surgeries are the underlying
basis for plaintiff's action against defendants.
            After his initial inquiries in May 2008, plaintiff
sought a medical assessment of his condition by LSI, and sent to


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LSI's Florida facility certain magnetic resonance imaging (MRI)
films of his back.   LSI then sent plaintiff an e-mail letter,
describing preliminary surgical treatment recommendations and
orders, based on its doctors' professional evaluation of the MRI.
The letter made clear the recommendations and suggested
procedures were not final, and that plaintiff would be "evaluated
by [LSI] surgeons upon arrival so therefore these orders will be
subject to change by the surgeon while in consultation."
           According to plaintiff, on May 30, 2008, the same day
that he received the letter, LSI informed him that there had been
a cancellation, and plaintiff could take the open spot and have
the surgery performed at a significant discount due to the short
notice.   LSI offered a June 9, 2008 surgery date.
           In preparation for his surgery plaintiff had several
additional e-mail contacts with LSI from June 2nd through June
6th.   These communications were intended to address registration
and payment issues, and to generally facilitate plaintiff's
arrival at LSI's Florida facility.     For example, plaintiff sent
his completed registration and private insurance forms, and
engaged in correspondence with LSI related to payment
arrangements to be made upon his arrival in Florida.    LSI sent
plaintiff a list of hotels in Tampa that offered discounted rates
to LSI patients.
           Apart from these administrative matters, plaintiff
forwarded to LSI his blood work, which had been completed in New


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York.   He also attempted to schedule a conference call between
his New York-based doctor, Dr. Dimatteo, and LSI defendant Dr.
Perry. After plaintiff was unable to reach Dr. Perry, an LSI
doctor called Dr. Dimatteo the following day and briefly
discussed plaintiff's scheduled surgery.
           On June 6th, plaintiff traveled from New York to Tampa,
Florida, and on June 9th, he underwent surgery at the LSI
facility, performed by defendant LSI surgeon Dr. Kevin Scott.
Plaintiff experienced extreme pain following the surgery and
complained to LSI staff who advised him that this was due to the
procedure and could last for two weeks.    Plaintiff underwent a
second surgical procedure at LSI on June 11th, this time
performed by defendant LSI surgeon Dr. Vernon Morris. He again
experienced severe pain after the surgery.
           For two weeks following his return to New York on June
12th, plaintiff contacted the LSI physicians on a daily basis to
discuss his medical status, and to complain about his post-
operative pain. LSI doctors and staff addressed his request for
pain medication by calling prescriptions into local pharmacies in
plaintiff's home city, which he then filled.
           In mid-July, plaintiff was still in severe pain and
went to New York-based physicians to discuss his medical status
and the results of the out-of-state surgeries.   He underwent an
MRI, which according to one of his New York-based doctors
revealed the same disc herniations the doctor had observed prior


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to the surgery.    In response to plaintiff's request for
consultation with LSI, LSI physicians held a conference call with
this New York-based doctor to discuss plaintiff's condition.
             After further telephone and e-mail communications with
LSI, and after plaintiff demanded that LSI address his condition,
plaintiff returned to Florida on August 6th where he underwent a
third surgery, this time performed by defendant LSI surgeon Dr.
Craig Wolff.    As before, plaintiff was in severe pain following
the surgery, and as before only days after the procedure he
returned to his home in New York State.
             For approximately the next three months, until October
31, 2008, plaintiff claims to have communicated daily with LSI
staff via text messages, e-mails and telephone calls.    He also
spoke directly by telephone with defendant Dr. Wolff, regarding
his back pain and headaches.    Dr. Wolff discussed ways to
alleviate the pain, and ordered an MRI which was performed in New
York.   Dr. Wolff also spoke by telephone with another of
plaintiff's New York-based doctors concerning plaintiff's
condition.    When plaintiff's condition did not improve, Dr. Wolff
told him he could return to LSI for another surgical procedure to
address what appeared to be fluid accumulation from a spinal dura
leak.   LSI offered to fly plaintiff to Florida at LSI's expense.
After several consultations with New York-based doctors,
plaintiff underwent another surgery, but this time in New York,
performed by a New York-based doctor not connected with LSI.


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             Plaintiff thereafter commenced this medical malpractice
action in New York against LSI and several LSI doctors, including
the surgeons who operated on him.       Defendants moved to dismiss
for lack of personal jurisdiction pursuant to CPLR 3111 (a) (8),
and Supreme Court granted the motion.
             The Appellate Division affirmed in a split decision,
concluding that the court lacked personal jurisdiction over LSI
and the doctors because they were not transacting business in New
York within the meaning of CPLR 302 (a) (1), and there was no
personal jurisdiction under CPLR 302 (a) (3) because plaintiff's
injury did not occur in New York. The two dissenting justices
concluded that the contacts demonstrated the "purposeful creation
of a continuing relationship" sufficient to establish
jurisdiction over defendants under CPLR 302 (a)(1).


                                  II.
             Plaintiff argues that New York courts have personal
jurisdiction over defendants under CPLR 302 (a) (1), based on
their purposeful activity, as demonstrated by LSI's active
solicitation of plaintiff to undergo surgery, and defendants' pre
and post surgery contacts related to plaintiff's medical
treatment, including e-mails, letters and the exchange of
documents.    Plaintiff also contends New York courts have personal
jurisdiction over defendants under CPLR 302 (a) (3) because




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defendants committed a tortious act outside New York State which
caused injury to him within New York.

          Defendants argue that their contacts with plaintiff
merely responded to his inquiries or constituted followup to the
surgical procedures, and do not constitute transacting business
in New York State within the meaning of the CPLR so as to confer
personal jurisdiction over the defendants. Furthermore, they
contend that because plaintiff's injuries occurred in Florida,
his reliance on CPLR 302 (3) as an alternative basis of
jurisdiction is without merit.    They also argue that plaintiff
failed to effectuate proper service of process over all the LSI
defendants.

          CPLR 302 (a) (1) provides in relevant part:

          "(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, ...,
          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 ...."
(CPLR 302 [a] [1]).   Whether a non-domiciliary is transacting
business within the meaning of 302 (a) (1) is a fact based
determination, and requires a finding that the non-domiciliary's
activities were purposeful and established "a substantial
relationship between the transaction and the claim asserted"
(Fischbarg v Doucet, 9 NY3d 375, 380 [2007], citing Duetsche Bank

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Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71 [2006]).
Purposeful activities are volitional acts by which the non-
domiciliary "'avails itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and
protections of its laws'" (Fischbarg, 9 NY3d at 380, quoting
McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377, 382 [1967],
and citing Ford v Unity Hosp., 31 NY2d 464, 471 [1973]).     More
than limited contacts are required for purposeful activities
sufficient to establish that the non-domiciliary transacted
business in New York (see e.g. Ehrenfeld v Bin Mahfouz, 9 NY3d
501, 508 [2007]).

          The lack of an in-state physical presence is not
dispositive of the question whether a non-domiciliary is
transacting business in New York.   For "[w]e have in the past
recognized CPLR 302 (a) (1) long-arm jurisdiction over commercial
actors[] using electronic and telephonic means to project
themselves into New York to conduct business transactions"
(Deutsche Bank Sec., Inc., 7 NY3d at 71 [holding that CPLR 302
(a) (1) conferred long-arm jurisdiction over out-of-state
institutional investor who called plaintiff, a New York
securities firm, to make a trade, and the suit arose from that
transaction], citing   Parke-Bernet Galleries v Franklyn, 26 NY2d
13, 308 [1970], and Ehrlich-Bober & Co., Inc. v Univ. of Houston,
49 NY2d 574 [1980]; see Fischbarg v Doucet, 9 NY3d 375 [2007]
[California defendants "transacted business" where they formed an


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attorney-client relationship with plaintiff attorney in New York
through numerous telephone calls, faxes, mail contacts, and e-
mails]; Park-Bernet Galleries, 26 NY2d at 17-18 [California
defendant who actively participated in live auction held in New
York via telephone subject to jurisdiction under CPLR 302 (a) (1)
in an action arising out of that auction]).

          Regardless of whether by bricks and mortar structures,
by conduct of individual actors, or by technological methods that
permit business transactions and communications without the
physical crossing of borders, a non-domiciliary transacts
business when "'on his [or her] own initiative ... [the non-
domiciliary] project[s] himself [or herself]' into this state to
engage in a 'sustained and substantial transaction of business'"
(Fischbarg, 9 NY3d at 382, quoting Parke-Bernet Galleries, 26
NY2d at 17). Thus, where the non-domiciliary seeks out and
initiates contact with New York, solicits business in New York,
and establishes a continuing relationship, a non-domiciliary can
be said to transact business within the meaning of 302 (a) (1)
(Fischbarg, 9 NY3d at 381).

          Plaintiff contends that the totality of defendants's
contacts establish that it conducted business in New York through
its solicitation and several communications related to LSI's
medical treatment of plaintiff.   We disagree.   In order to
satisfy "'the overriding criterion' necessary to establish a
transaction of business" within the meaning of CPLR 302 (a) (1),

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a non-domiciliary must commit an act by which it "purposefully
avails itself of the privilege of conducting activities within
[New York]" (see Ehrenfeld, 9 NY3d at 508, citing McKee Elec. Co.
v Rauland-Borg Corp., 20 NY2d 377, 382 [1967], and Deutsche Bank
Sec., Inc., 7 NY3d 65, 71 [2006]).     Plaintiff here admits that he
was the party who sought out and initiated contact with
defendants after viewing LSI's website.    According to plaintiff,
that website informed viewers about LSI medical services and its
professional staff.   However, he has not asserted that it
permitted direct interaction for online registration, or that it
allowed for online purchase of LSI services (see Halas v. Dick's
Sporting Goods, 105 AD3d 1411, 1412 [4th Dept 2013]; Murphy v.
Cirrus Design Corp., 38 Misc 3d 1227(A) [Sup Ct, Erie County
2013]; Citigroup Inc. v. City Holding Co., 97 F Supp 2d 549, 565
[SDNY 2000]).   Passive websites, such as the LSI website, which
merely impart information without permitting a business
transaction, are generally insufficient to establish personal
jurisdiction (Grimaldi v Guinn, 72 AD3d 37, 48 [2d Dept 2010];
see Benifits By Design Corp. v Contractor Mgmt. Servs., LLC, 75
AD3d 826, 829 [3d Dept 2010]; Am. Homecare Fed'n, Inc. v. Paragon
Scientific Corp., 27 F Supp 2d 109, 114 [D Conn 1998]; Edberg v
Neogen Corp., 17 F Supp 2d 104, 114 [D Conn 1998]; Boris v. Bock
Water Heaters, Inc., 3 Misc 3d 835, 840 [Sup Ct, Suffolk County
2004]; see also Morilla v Laser Spine Inst., LLC, 2010 WL
3258312, *5 [DNJ Aug 16, 2010, No. 2:10-CV-01882 (WHW)] [finding


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LSI website containing "only information and a generic contact
information input form" passive and insufficient to establish
personal jurisdiction]).   Thus, as plaintiff concedes, the mere
fact that he viewed LSI's website in New York is insufficient to
establish CPLR 302(a)(1) personal jurisdiction over defendants.

          Plaintiff argues, however, that LSI did more than just
post an online advertisement.    He alleges that over months, there
were several telephone calls and e-mail communications between
plaintiff and LSI representatives, that he sent MRIs and blood
work to LSI, and that LSI sent prescriptions to his New York-
based pharmacies.   To the extent plaintiff argues that by sheer
volume of contacts, defendants are subject to personal
jurisdiction in New York, we disagree.     As we have stated it is
not the quantity but the quality of the contacts that matters
under our long-arm jurisdiction analysis (Licci v Lebanese Can.
Bank, 20 NY3d 327, 338 [2012]; see also Fischbarg, 9 NY3d at
380).

          Turning to the content and "quality" of defendants'
contacts with plaintiff, it is apparent that they were responsive
in nature, and not the type of interactions that demonstrate the
purposeful availment necessary to confer personal jurisdiction
over these out-of-state defendants.      After plaintiff initially
sought out LSI, LSI responded with information designed to assist
plaintiff in deciding whether to arrange for LSI medical services
in Florida.   For example, after plaintiff sent his MRI for


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evaluation, LSI sent him a letter setting forth a preliminary
evaluation and treatment recommendations.

          Once plaintiff confirmed his interest, and the June 9,
2008 surgery date was set, he fully engaged with defendants in
order to ensure that all pre-surgical matters were completed.
Plaintiff filled out and returned the insurance forms and
attempted to negotiate payment arrangements; he arranged for his
travel and lodging; he completed and sent LSI the necessary
registration forms; he ensured that his bloodwork was sent to LSI
before his arrival in Florida; and he requested that an LSI
doctor speak with his New York-based doctors concerning the
impending surgery at the LSI facility.   As part of the
preparation for plaintiff's arrival, these communications served
the convenience of plaintiff (see Milliken v Holst, 205 AD2d 508,
510 [2d Dept 1994]), and fail to establish that defendants
"avail[ed] [themselves] of the privilege of conducting activities
within the forum State" (see Fischbarg, 9 NY3d at 380, quoting
McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377, 382 [1967],
and citing Ford v Unity Hosp., 31 NY2d 464, 471 [1973]).

          Plaintiff urges us to consider the contacts between
plaintiff and LSI once he returned to New York on June 9th, after
the first two Florida surgeries.   Our long-arm statute requires
that the cause of action arise from the non-domiciliary's actions
that constitute transaction of business. "There must be a
substantial relationship between the transaction and the claim


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asserted"   (Fischbarg, 9 NY3d at 380). Here, plaintiff's claim is
based on the June and August surgeries in Florida.    Contacts
after this date cannot be the basis to establish defendant's
relationship with New York because they do not serve as the basis
for the underlying medical malpractice claim (see Harlow v
Children's Hosp., 432 F 3d 50, 62 [1st Cir 2005] [in most cases,
where the cause of action must arise from the contacts, contacts
after the cause of action arises will be irrelevant]).    Further,
defendants' contacts with New York at the behest of the plaintiff
subsequent to the first two Florida surgeries but before the
third cannot be used to demonstrate defendants actively projected
themselves into New York (see Skrodzi v Marcello, 810 F Supp 2d
501, 510, 512 [EDNY 2011] [defendant's contacts with forum state
arising from initial communication with plaintiff irrelevant for
301 (a) (1) jurisdictional analysis], citing Grimaldi, 72 AD3d at
51, and Zibiz Corp. v. FCN Tech. Solutions, 777 F Supp 2d 408,
421 [EDNY 2011]).   In any event, even considering the defendants'
contacts following the surgeries, they are similar in kind to the
pre-surgery contacts and for the same reasons do not constitute
the transaction of business required by CPLR 302(a)(1).

            It is no longer unusual or difficult, as it may once
have been, to travel across state lines in order to obtain health
care from an out-of-state provider.     It is also not unusual to
expect follow up for out-of-state treatment.    Given this reality,
to find defendants' conduct here constitutes transacting business


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within the meaning of CPLR 302 (a) (1), based on contacts before
and after the surgeries, would set a precedent for almost
limitless jurisdiction over out-of-state medical providers in
future cases.   We do not interpret the expanse of CPLR 302 (a)
(1) to be boundless in application.

          The decision in Etra v Matta (61 NY2d 455 [1984]),
supports our conclusion here.    In Etra the Court held that 302
(a) (1) did not confer personal jurisdiction over an out-of-state
doctor in a medical malpractice action arising from that doctor's
treatment of plaintiffs' decedent.       A Massachusetts doctor was
solicited in Massachusetts by a New York patient and treated the
patient in Massachusetts, but subsequently sent an experimental
drug to New York and acted as a consultant to a New York doctor.
We held that those contacts were insufficient to constitute a
transaction of business for purposes of 302 (a) (1).

          The Appellate Division has also declined to extend
long-arm jurisdiction under 302 (a) (1) to cover out-of-state
medical centers where the contacts were limited or the injury
occurred outside New York.   In O'Brien v Hackensack Univ. Med.
Ctr. (305 AD2d 199 [1st Dept 2003]), a New Jersey hospital
treated a New York resident in New Jersey, referred him to a New
York hospital, prescribed him chemotherapy to be administered in
New York, and regularly communicated with his New York doctors.
According to the First Department, these "sporadic" contacts with
New York were insufficient under 302 (a) (1) because they were


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"not carried out from a permanent location in the state or by
[the hospital's] agents or employees in the State."   In Hermann v
Sharon Hosp. (135 AD2d 682 [2d Dept 1987]), the Second Department
held that 302 (a) (1) did not confer personal jurisdiction over a
Connecticut hospital in a New York plaintiff's medical
malpractice action arising from injuries sustained in the course
of treatment at the hospital. The court reasoned that plaintiff
had not shown his treatment arose from any transaction of
business in New York where the hospital had no offices in New
York and conducted its health-care activities solely in
Connecticut, despite the fact that many of its doctors were
licensed to practice in New York and many of its patients were
New York residents.

           Plaintiff argues that LSI has been found subject to
personal jurisdiction by other courts, and urges us to follow
suit.   He relies on Henderson v Laser Spine Inst. LLC (815 F Supp
2d 352 [D Me 2011]) and Bond v Laser Spine Inst., LLC (2010 WL
3212480, 2010 US Dist LEXIS 82736 [ED Pa, Aug. 11, 2010, No. 10
1086]).   These cases are distinguishable because they both
involve more extensive contacts and personal jurisdiction
statutes that are coextensive with the Federal Due Process
Clause.   In Henderson, unlike here, the court found LSI's website
semi-interactive and nationwide print advertising contributed to
the plaintiff's decision to contact LSI.   In Bond, LSI had a
Philadelphia "consult" office and took a more active role in that


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plaintiff's post surgical treatment.   Moreover, these cases were
decided based on statutes that, unlike 302 (a), permit an
exercise of personal jurisdiction to the full extent of the
Federal Due Process Clause (see Kreutter v McFadden Oil Corp. 71
NY2d 460, 471 [1988] [New York's long-arm statute "does not
confer jurisdiction in every case where it is constitutionally
permissible"]; cf. Morilla, 2010 WL 3258312 at *6 [finding
alleged contacts based solely on LSI's passive website were
insufficient to establish personal jurisdiction under the Federal
Due Process Clause]).

          We also reject plaintiff's alternative basis for
personal jurisdiction asserted under CPLR 302 (a) (3).    This
section provides that New York courts have personal jurisdiction
over a non-domiciliary who "commits a tortious act without the
state causing injury to person or property within the state"
(CPLR 302 [a] [3]). We disagree with plaintiff that the
allegations in his complaint establish that his injury occurred
in New York.   Rather, the situs of the injury in medical
malpractice cases is the location of the original event which
caused the injury, and not where a party experiences the
consequences of such injury (Hermann, 135 AD2d at 683, citing
McGowan v Smith, 52 NY2d 268, 273-274 [1981], and Kramer v Hotel
Los Monteros SA, 57 AD2d 756 [2d Dept 1977]).   Here, the injury
occurred in Tampa, Florida, where plaintiff underwent the
surgeries that are the basis for his medical malpractice claim.


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Therefore, 302(a)(3) cannot be a basis for personal jurisdiction
over defendants.




                                   III.

            Our determination that New York lacks personal
jurisdiction over defendants, makes it unnecessary for us to
consider whether plaintiff effectuated service of process over
defendants.

            Accordingly, the Appellate Division order should be
affirmed, with costs.


*   *   *     *   *   *   *   *     *      *   *   *   *   *   *    *   *


Order affirmed, with costs. Opinion by Judge Rivera. Chief
Judge Lippman and Judges Graffeo, Read, Smith, Pigott and
Abdus-Salaam concur.


Decided November 20, 2014




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