[*1]
Stein v Osei
2007 NY Slip Op 52083(U) [17 Misc 3d 1120(A)]
Decided on October 4, 2007
Supreme Court, Rockland County
Weiner, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through October 31, 2007; it will not be published in the printed Official Reports.


Decided on October 4, 2007
Supreme Court, Rockland County


Tracy Stein, as Executrix of the Estate of Allan Stein, and Tracy Stein, Individually, Plaintiffs,

against

Clement Osei, M.D., Rockland Pulmonary & Medical Associates, P.C., Stephen Klein, M.D., James Seibold, M.D., Vivian Hsu, M.D., Defendants.




8564/06



Joseph M. Lichtenstein, P.C.

Attorney for Plaintiff

Burrell, Regenstreich & Booker, LLC

Attorneys for Defendants

Alfred J. Weiner, J.



The underlying issue involves the Defendants' alleged medical malpractice and the subsequent wrongful death of Plaintiff's decedent. It is undisputed that there is another action pending among the same parties in the Superior Court of the State of New Jersey, Middlesex County.

Defendants Vivian Hsu, M.D. and James Seibold, M.D. contend that Plaintiff's complaint should be dismissed for lack of in personam jurisdiction pursuant to CPLR §3211(a)(8) or, in the alternative, that this action should be stayed and Plaintiffs enjoined from taking any further steps in [*2]this action because of the pendency of the prior New Jersey action. CPLR §3211(a)(4)

In support of their motion, Defendants contend they treated Plaintiff's decedent only at Robert Wood Johnson University Hospital located in the State of New Jersey and that no treatment was provided in the State of New York. As a consequence, they contend, New York lacks personal jurisdiction of them and Plaintiffs' complaint should, therefore, be dismissed.

Plaintiffs oppose the motion and contend that New York's "Long Arm" statute (CPLR §302[a]) permits the courts of New York to exercise personal jurisdiction of the Defendants. Plaintiffs state that Defendants may be sued in New York State because they committed a tortuous act "...without the State causing injury to a person....within the state..." and that they engaged in a persistent course of conduct that derived revenue from within the state and, further, because Defendants should have reasonably expected that their acts in the State of New Jersey would have consequences within New York State.

Plaintiffs also contend that Defendants wrote prescriptions for the testing of Plaintiffs' decedent which Defendants knew, or should have known, would be conducted in New York State. Plaintiffs further state that Defendants received and reviewed the results of those medical tests; they regularly communicated with physicians in New York State regarding Plaintiff's decedent and that they also participated in a plan of care concerning Plaintiffs' decedent, as well. The actions of the Defendants, Plaintiffs contend, had a very real and significant impact on the medical care Plaintiffs' decedent received in New York and that it was largely due to the departures from standards of care in directing the New York team of physicians, that Plaintiffs' decedent's lung cancer went undiagnosed and untreated until it was too late for anyone to help him.

Section 302(a)(3) of the Civil Practice Law and Rules, the provision of New York's long-arm statute at issue here, permits a court to exercise personal jurisdiction over a non-domiciliary who:

"3. commits a tortious act without the state causing injury to person or property within the state... 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;"


In Ingraham v. Carroll, 90 NY2d 592, 1997, with facts similar to the facts here, the Court of Appeals held that New York courts lacked personal jurisdiction under long-arm statute in a medical malpractice action against a physician who saw a patient in Vermont on referral from a New York clinic and who allegedly failed to diagnose the patient's cancer [*3]while it was still at a treatable stage. The Court of Appeals determined there was no jurisdictional basis in New York because the Plaintiff in that action could not establish that the Vermont physician was engaged in interstate commerce. However, this Court finds that Ingram is clearly distinguishable in that, here, Plaintiff's contend - and it is not refuted - Defendants regularly solicited business in New York, "...wrote prescriptions for medical testing to be conducted in New York, reviewed and commented on that testing, and participated in a treatment plan in New York among New York physicians with the patient being treated in New York,..." thereby establishing a persistent course of conduct in New York State and, in effect, engaging in interstate commerce. CPLR §302(a)(3)(I).

The Court finds that Plaintiffs have met their burden of establishing that New York State's "long-arm statute" (CPLR §302[a]) confers jurisdiction upon this Supreme Court. Accordingly, the Defendants' motion for dismissal based upon a lack of in personam jurisdiction pursuant to CPLR §3211(a)(8) is, therefore, DENIED.

As to the New Jersey action, the Plaintiffs contend that New York was Plaintiff's first choice of forum and the appropriate one, and the subsequent New Jersey action was commenced only when Plaintiff realized that Defendants would contest jurisdiction in New York.[FN1]

Although Defendants state there is a chronological priority of the New Jersey action, the exhibits attached to Defendants' motion papers do not support such claim. The New York Summons indicates that it was filed on October 16, 2006 [FN2]and the New Jersey Summons indicates that it was filed on November15, 2006 [FN3] No explanation has been offered by Defendant for this apparent contradiction. Furthermore, Defendants have not met their burden and established that because "...there is another action pending between the same parties for the same cause of action in a court of [another] ... state..." this Court should consider the dismissal or staying of the New York action pursuant to CPLR §3211(a)(4).

Consequently, the Court finds that Defendants have failed to establish that they are entitled to a dismissal or staying of this action based upon there being another action pending between the same parties for the same cause of action in another court. CPLR §3211(a)(4).

Dated: New City, NY

October 4, 2007 [*4]

E N T E R:

_____________________

Hon. Alfred J. Weiner

Justice of the Supreme Court

Footnotes


Footnote 1: Plaintiff anticipates that the New Jersey action will be dismissed because of numerous procedural and substantive impediments to the survival of the complaint in New Jersey.

Footnote 2: Exhibit "A"

Footnote 3: Exhibit "B"