The following papers, numbered 1 to 4 were read on this motion to dismiss for lack of personal jurisdiction, or, in the alternative, for inconvenient forum:

PapersNumbered

Notice of Motion/Order to Show Cause - Affidavits - Exhibits___1,2__________

Answering Affidavits - Exhibits (Memo)_______________________________3 __________

Replying Affidavits (Reply Memo) ______________________________________________4__________

Cross Motion:[] Yes[ X ] No

Upon the foregoing papers, it is ordered that this motion to dismiss pursuant to CPLR §3211(a)(8) for lack of personal jurisdiction, or in the alternative, to dismiss on the basis of forum non conveniens pursuant to CPLR §327(a) is granted for the reasons set forth below.

Background

Plaintiff Firoozeh Farahmand ("Farahmand"), a Canadian resident, brings this action against defendant Dalhousie University ("Dalhousie"), a Canadian University with its three main campuses located in Halifax, Nova Scotia for: 1) breach of an implied contract; 2) breach of fiduciary duty; 3) tortious interference with prospective business relations; 4) defamation; and [*2]5)intentional and negligent infliction of emotional distress.

Central to Farahmand's complaint is Dalhousie's alleged conspiracy to dismiss Farahmand on the basis of her religion and national origin, Islam and Iran respectively, by falsifying negative evaluation reports. Farahmand claims that, inter alia, she had an offer for an University of Florida residency program withdrawn because Dalhousie allegedly informed the University of Florida of her dismissal from Dalhousie. Farahmand further claims that Harvard and the University of Kentucky denied her admission on the basis of Dalhousie's alleged communication of defamatory information.

Defendant now moves, pursuant to CPLR 3211(8), for an order dismissing the complaint for lack of personal jurisdiction, or, in the alternative, pursuant to CPLR 327(a), on the basis of forum non conveniens.

Discussion

In seeking dismissal based upon lack of personal jurisdiction, defendant asserts that neither CPLR 301, nor CPLR 302, New York's long-arm statute, provide a sufficient basis, to subject it to the jurisdiction of this court. The court rejects plaintiff's arguments in opposition, and, as detailed below, agrees that dismissal is warranted.

The general standard for personal jurisdiction over a foreign entity imposes the requirement of "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice" (International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement, 326 US 310, 316 [1945])(citations omitted); see also World-Wide Volkswagen Corp. v. Woodson, 444 US 286, 291-92 [1980]).

Jurisdiction Pursuant to CPLR 301

The court notes that, in her complaint, plaintiff only asserts as a basis for personal jurisdiction over defendant, CPLR 302, New York's long-arm statute; however, in her opposition plaintiff also asserts personal jurisdiction pursuant to CPLR 301.

CPLR 301 is titled "Jurisdiction over persons, property or status" and provides as follows: "A court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore".

CPLR 301 has been construed to authorize New York courts to exercise jurisdiction over a foreign corporation if it is "engaged in such a continuous and systematic course of doing business' in New York as to warrant a finding of its presence' in this jurisdiction" (Delagi v. Volkswagenwerk A.G. of Wolfsburg, Germany,29 NY2d 426, 430-431 [1972]). The test for "doing business" requires that "[t]he court ... be able to say from the facts that the corporation is present' in the State not occasionally or casually, but with a fair measure of permanence and continuity'" (Landoil Resources Corp. v. Alexander & Alexander Services, Inc.,77 NY2d 28, 33-34 [1990], quoting Tauza v Susquehanna Coal Co., 220 NY 259, 267 [1917]). Here, plaintiff has failed to demonstrate such a "presence" by Dalhousie.

Dalhousie is an educational institution, incorporated in Canada, with its principal campus located in Halifax, Nova Scotia; it has no campus or academic facilities located anywhere outside of Canada. Dalhousie is not authorized to do business in New York, has no offices or academic facilities in New York, does not own or rent real property in New York, or employ individuals in New York. While plaintiff's complaint alleges that defendant "regularly, habitually and materially conducts its core business, academic and other activities in the State of New York", [*3]plaintiff produces no evidence to support this claim. (Complaint, ¶3).

Moreover, plaintiff's allegations that defendant solicited new students, financial contributions, and staff from New York do not satisfy this burden. Id at 3-4. "[M]ere solicitation of business for an out-of-State concern is not enough to constitute doing business in this State" (Miller v. Surf Properties, Inc., 4 NY2d 475 [1958]).

Plaintiff's argument that personal jurisdiction exists because of the presence in New York of the Dalhousie University Foundation, Inc., ("the Foundation"), a separate and distinct not-for-profit corporation, is also unsupported and without merit. As plaintiff has not established that defendant is "doing business" in New York, there is no basis for personal jurisdiction over defendant pursuant to CPLR 301.

Long-Arm Jurisdiction pursuant to CPLR 302

Plaintiff's alternative basis for jurisdiction is CPLR 302, New York's long-arm statute. Pursuant to CPLR 302(a), a court may exercise personal jurisdiction over a foreign defendant if the defendant, inter alia:

1. transacts any business within the state or contracts anywhere to supply goods or services in the state;

In order to be subject to personal jurisdiction pursuant to CPLR 302(a)(1), the causes of action must arise "out of the transaction of business within the State" (McGowan v. Smith, 52 NY2d 268, 271 [1981]). Furthermore, there must be "some purposeful activities' within the State that would justify bringing the nondomiciliary defendant before the New York [*4]courts." Id. Personal jurisdiction can be based upon a single transaction by a defendant in New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claims asserted (see Kreutter v. McFadden Oil Corp., 71 NY2d 460, 467 [1088]; Parke-Bernet Galleries, Inc. v. Franklyn, 26 NY2d 13, 16 [1969]). Here, plaintiff failed to establish a nexus between her claims and the alleged New York activities by defendant.

The allegations that give rise to plaintiff's causes of action do not appear to have any connection with New York. Further, plaintiff has not demonstrated that defendant transacted business with plaintiff within this state, at any time, nor was there a transaction of business within New York between defendant and some other entity that led to any of plaintiff's causes of action. Accordingly, plaintiff has failed to sustain its burden to establish personal jurisdiction in New York over defendant based upon the "transacting business" provision of New York's long-arm statute.

Nor does this court have personal jurisdiction over defendant pursuant to CPLR 302(a)(2) or CPLR 302(a)(3). CPLR 302(a)(2) provides for personal jurisdiction where a party "commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act." For long-arm purposes, "the situs of the injury...is where the event giving rise to the injury occurred, not where the resultant damages occurred." (Marie v. Altshuler, 30 AD3d 271, 272 [1st Dept 2006]). This "clearly applies to... any tort, intentional or unintentional, in which the actionable conduct takes place in New York" (Siegel, New York Practice § 87, at 157 [4th ed]), but does not apply if the alleged tort occurs outside New York, "even though it causes injury within New York. (Id.) Since here plaintiff's claims arise from acts allegedly occurring in Canada, jurisdiction pursuant to CPLR 302(a)(2) is not appropriate. [*5]

Lastly, CPLR 302(a)(3) provides for jurisdiction when a party:

"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 (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."

Here, again, personal jurisdiction fails. Significantly absent is evidence of any activity by Dalhousie in New York, which bears a substantial relationship to the events out of which plaintiff's tort causes of action allegedly arose (McGowan v. Smith, 52 NY2d at 271). Additionally, as stated previously, New York courts generally hold that the situs of an injury for an alleged tort is where the events giving rise to the injury occurred (Marie v. Altshuler, 30 AD3d at 272). As here, the events which are the basis of plaintiff's claims arose in Canada, plaintiff has failed to establish any New York injury.

Further, with respect to CPLR 302(a)(3)(i), while such section was not intended to require as much activity as the CPLR 301 doing business', the courts look to whether or not a foreign corporation derives substantial revenue either as a percentage of gross income or as a gross amount (Siegel, New York Practice § 88, at 159 [4th ed]); Allen v. Canadian General Electric Co., 65 AD2d 39, 43 [3d Dept 1978]). Here, there is no proof that defendant generates substantial income in New York; thus, jurisdiction is inappropriate pursuant to CPLR 302(a)(3) (i). Moreover, plaintiff's conclusory assertion that defendant solicits students in New York without providing any specific dollar amount, is unpersuasive. (Farahmand Complaint at 3-4). 302(a)(3) (ii), is also inapplicable to the facts of this case. [*6]

In view of defendant's lack of minimum contacts with New York, extending personal jurisdiction over it in this State would violate due process, and maintaining this suit would "offend traditional notions of fair play and substantial justice" (see International Shoe Co. v State of Washington, 326 US at 316; World-Wide Volkswagen Corp. v Woodson, 444 US at 291-292).

Forum Non-Conveniens

Even if this Court were to find plaintiff's arguments persuasive with respect to personal jurisdiction over defendant, dismissal is warranted in accordance with CPLR 327(a) as, "in the interest of substantial justice the action should be heard in another forum." "New York courts are not compelled to retain jurisdiction in any case which has no substantial nexus to New York" (Demenus v. Sylvester, 146 AD2d 668 [2d Dept 1989]). In determining whether a case has a substantial nexus to New York and whether dismissal should be granted based upon grounds of forum non conveniens, courts have considered the location of witnesses, parties, documents and relevant evidence. (see Reliance Ins. Co. v. American Elec. Power Co., 224 AD2d 235 [1st Dept 1996]).

Here the circumstances alleged do not justify burdening the New York courts with the resolution of the within out-of-state claims, given that: (1) neither plaintiff nor defendant are New York residents; (2) the alleged claims arose in Canada and Canadian law is likely to apply; and (3) the majority of the witnesses and documentary evidence are located in Canada. (See Richtree Inc. v. Movenpick Holding A.G., 301 AD2d 412 [1st Dept 2003]).

As the Court of Appeals long ago stated, for public policy reasons, "our courts should not be vexed with litigations [sic] between non-resident parties over causes of action which arose outside of our territorial limits" (Robinson v. Oceanic Steam Nav. Co., 112 NY 315, 323-24 [1889]). Thus, dismissal is warranted.

Based upon the above, it is

ORDERED that the motion by defendant to dismiss is granted and the Clerk is directed to enter judgment of dismissal in defendant's favor, without costs; it is further

ORDERED that within 30 days of entry of this order, defendant shall serve a copy upon plaintiff with notice of entry.

Dated: January 3, 2011__________________________

Doris Ling-Cohan, J.S.C.