Supreme Court, Richmond County, April 22, 2022

Callahan & Fusco, L.L.C., Roseland, New Jersey (Christopher Smith Del Bove of counsel), for FedEx Ground Package System, Inc., defendant.

David S. Kritzer & Associates, Smithtown (David Scott Kritzer of counsel), for [*2]Penske Truck Leasing Corporation and another, defendants.

Cipriani & Werner, P.C., Iselin (Francis James Leddy of counsel), for Z & D Tour, Inc., defendant.

Krause & Glassmith, LLP, New York City (Andrew W. Padover of counsel), for plaintiff.

This is a combined decision and order on motion sequence Nos. 001, 002, 003, and 004. It is hereby ordered that motion sequence No. 001 is granted, and plaintiff's complaint as to defendant FedEx Ground Package is dismissed with prejudice, and it is further ordered that motion sequence No. 002 is granted, and plaintiff's complaint as to defendant United Parcel Service, Inc., is dismissed with prejudice, and it is further ordered that motion sequence No. 003 is denied, without prejudice to renew, and it is further ordered that motion sequence No. 004 is granted, and plaintiff's complaint as to defendant Penske Truck Leasing Corporation is dismissed with prejudice.

Oral argument was heard by the court on motion sequence Nos. 001, 002, and 003 on April 4, 2022. Motion sequence No.{**75 Misc 3d at 585} 004 was filed on April 7, 2022, and plaintiff and defendant Penske Truck Leasing Corporation requested that the court render its decision on motion sequence No. 004 on submission alone, as the arguments for and against the motion were made on the record, sounding in similarity with motion sequence No. 002.

This case arises from a multivehicle accident that occurred on January 5, 2020, in the State of Pennsylvania. Plaintiff was a passenger on a bus operated by defendant Z & D Tour, Inc. (Z & D), that was traveling on the Pennsylvania Turnpike/Interstate 70 in Mount Pleasant Township, Pennsylvania. The bus driver lost control of the bus, causing it to roll onto its side and come to a rest, blocking all lanes of westbound travel as well as the shoulder of the [*3]Pennsylvania Turnpike. As a result of the bus laying on its side, blocking all lanes of travel, as well as the shoulder, a tractor trailer owned by defendant FedEx Ground Package System, Inc. (FedEx Ground), collided with the bus. In addition, and subsequent thereto, a tractor trailer owned by defendant Penske Truck Leasing Corporation (Penske), and leased by defendant United Parcel Service, Inc. (UPS), struck the rear of the FedEx Ground tractor trailer. Plaintiff's complaint alleges that the accident caused her to sustain severe and permanent personal injuries.

A. Plaintiff

Plaintiff filed this action on December 20, 2021, in New York State Supreme Court, County of Richmond, where the plaintiff resides.

B. Defendant Z & D Tour, Inc.

Defendant Z & D is a domestic profit corporation, organized under the laws of the State of New Jersey, with a principal place of business in Rockaway, New Jersey. Z & D has registered, pursuant to Business Corporation Law §§ 1301 and 1304, with the New York State Secretary of State as an out-of-state corporation authorized to do business in New York. Z & D owns and operates a brick-and-mortar storefront located at 59 Canal Street, New York, New York. Z & D sells tickets for and charters buses that transport patrons to and from the State of New York and the State of Ohio, from a dedicated intercity bus stop (with authority to post signage and use of the bus stop{**75 Misc 3d at 586} granted by the New York City Department of Transportation) in front of its office located at 59 Canal Street, New York, New York.

C. Defendant FedEx Ground Package

FedEx Ground is incorporated under the laws of the State of Delaware, and maintains a principal place of business in Moon Township, Allegheny County, Pennsylvania. The tractor operated by FedEx Ground on the date of the accident did not depart from or travel through the State of New York, and its destination was not New York.

D. Defendant Penske Truck Leasing Corporation

Penske is a Delaware business corporation that maintains a corporate office and principal place of business in Reading, Pennsylvania.

E. Defendant United Parcel Service, Inc.

UPS is a foreign corporation organized under the laws of the State of Ohio, with its principal place of business located in Atlanta, Georgia.

A. General Personal Jurisdiction and Specific Jurisdiction

Plaintiff bears the ultimate burden of demonstrating "satisfaction of statutory and due process prerequisites" to the exercise of general personal jurisdiction over defendants (Stewart v Volkswagen of Am., 81 NY2d 203, 207 [1993]; see Archer-Vail v LHV Precast Inc., 168 AD3d 1257 [3d Dept 2019]). However, that burden does not entail making a prima facie showing of personal jurisdiction at this stage of the litigation (see Peterson v Spartan Indus., 33 NY2d 463 [1974]). Rather, for its claims to survive a motion pursuant to CPLR 3211 (a) (8), plaintiff need only show that it has made a "sufficient start" at demonstrating jurisdiction to warrant discovery (Gottlieb v Merrigan, 119 AD3d 1054 [3d Dept 2014]). This showing may be made "by reference to pleadings, affidavits, and other suitable documentation" (Avilon Auto. Group v Leontiev, 168 AD3d 78, 89 [1st Dept 2019]).

Under CPLR 301, "[a] court may exercise such jurisdiction over persons, property, or [*4]status as might have been exercised heretofore." This section preserves the power of the New York courts to exercise general personal jurisdiction (see Pichardo v Zayas, 122 AD3d 699 [2d Dept 2014]). However, any exercise of such jurisdiction over a foreign corporation on the basis of{**75 Misc 3d at 587} CPLR 301 must comport with due process requirements (Fernandez v DaimlerChrysler, AG., 143 AD3d 765, 766 [2d Dept 2016], appeal dismissed 28 NY3d 1129 [2017], cert denied 583 US —, 138 S Ct 145 [2017]).

Prior to the United States Supreme Court's decision in Daimler AG v Bauman (571 US 117 [2014]), a foreign corporation was amenable to suit in New York under CPLR 301 if it had engaged in such a continuous and systematic course of doing business here that a finding of its presence in this jurisdiction was warranted (Aybar v Aybar, 169 AD3d 137, 143 [2d Dept 2019]). Following Daimler AG, however, "general [personal] jurisdiction over a foreign corporation . . . exists only if the corporation is 'essentially at home in the forum State' typified by 'the place of incorporation and principal place of business' " (Motorola Credit Corp. v Standard Chartered Bank, 24 NY3d 149, 160 n 4 [2014] [citations omitted]; see Aybar, 169 AD3d at 144 ["the paradigm bases for general jurisdiction are the place of incorporation and principal place of business"]; accord State of New York v Vayu, Inc., 195 AD3d 1337, 1338 [3d Dept 2021]).

To determine whether a foreign corporate defendant's affiliations with the state are so continuous and systematic as to render it essentially "at home," Daimler advised that

"the general [personal] jurisdiction inquiry does not 'focu[s] solely on the magnitude of the defendant's in-state contacts[,]' . . . [but] instead calls for an appraisal of a corporation's activities in their entirety, nationwide and worldwide. A corporation that operates in many places can scarcely be deemed at home in all of them" (Daimler AG v Bauman, 571 US at 139 n 20; see BNSF R. Co. v Tyrrell, 581 US —, —, 137 S Ct 1549, 1559 [2017]).

The Daimler Court suggested that Perkins v Benguet Consol. Mining Co. (342 US 437 [1952]) exemplified the "exceptional case" in which a corporate defendant's operations in the forum state were so substantial and of such a nature as to render the corporation "at home" in that state (see Daimler AG v Bauman, 571 US at 129). In Perkins, the defendant was incorporated in the Philippine Islands, where it owned and operated certain mines (342 US at 439). Its operations were completely halted during the Japanese occupation of the islands in World War II. During that interim, the president of the company, who was also the general manager and principal stockholder, returned to his home in Ohio, where he maintained an office and conducted the corporation's affairs (see id. at 447-448). The{**75 Misc 3d at 588} Supreme Court held that Ohio courts could exercise general jurisdiction over the corporation without offending due process (see id. at 448). The Supreme Court later noted that "Ohio was the corporation's principal, if temporary, place of business so that Ohio jurisdiction was proper even over a cause of action unrelated to the activities in the State" (Keeton v Hustler Magazine, Inc., 465 US 770, 779 n 11 [1984]).

A New York court may exercise personal jurisdiction over a nondomiciliary who, either in person or through his or her agent, "transacts any business within the state or contracts anywhere to supply goods or services in the state" (Urfirer v SB Bldrs., LLC, 95 AD3d 1616, 1617 [2012], quoting CPLR 302 [a] [1]). In determining whether long-arm jurisdiction has been acquired over a nondomiciliary, the court must undertake a two-part inquiry: First, it must be determined whether our long-arm statute (CPLR 302) confers jurisdiction over the defendants, in light of their contacts with this state. The defendant must have purposefully availed itself of the privilege of conducting activities within the forum state by either transacting business in New York or contracting to supply goods or services in New York. For specific jurisdiction to attach, "there must be a 'relatedness between the transaction and the legal claim such that the latter [*5]is not completely unmoored from the former' " (Lowy v Chalkable, LLC, 186 AD3d 590, 592 [2020]). Second, the claim must arise from that business transaction or from the contract to supply goods or services (D&R Global Selections, S.L. v Bodega Olegario Falcon Pineiro, 29 NY3d 292, 297 [2017]). Ultimately, as the party seeking to assert jurisdiction, it is plaintiff's burden to demonstrate a proper basis for long-arm jurisdiction (see Gottlieb v Merrigan, 170 AD3d 1316 [2019]; Andrew Greenberg, Inc. v Sirtech Can., Ltd., 79 AD3d 1419, 1420 [2010]). Satisfaction of the second prong requires that there be an "articulable nexus" or a "substantial relationship" between a defendant's New York activities and the cause of action sued upon (Qudsi v Larios, 173 AD3d 920, 923 [2d Dept 2019]; see Skutnik v Messina, 178 AD3d 744, 745 [3d Dept 2019]). "Due process requires that a nondomiciliary have 'certain minimum contacts' with the forum and 'that the maintenance of the suit does not offend traditional notions of fair play and substantial justice' " (Williams v Beemiller, Inc., 33 NY3d 523, 528 [2019], quoting International Shoe Co. v Washington, 326 US 310, 316 [1945]). If either the statutory or constitutional prerequisite is lacking, the action may not proceed (id.).{**75 Misc 3d at 589}

A. Defendant Z & D Tour, Inc.

[1] To determine whether Z & D is subject to the general personal jurisdiction, and/or specific conduct-linked jurisdiction of the State of New York, the court must employ the two-prong test. Z & D is a New Jersey corporation that conducts business in New York. A discussion of the scope and character of the business is appropriate to determine whether Z & D is "at home" in New York for the purpose of imposing general personal jurisdiction. Z & D maintains a brick-and-mortar office location in New York State, particularly, at 59 Canal Street, New York, New York, where it engages in the sale of tickets for bus tours that transport individuals from New York to other states. The bus stop is directly in front of the office where an individual can purchase the ticket for the bus tour. In fact, Z & D's name appears on a New York City Bus Stop sign post, along side another sign that says "Kentucky, Ohio."

There is evidence that Z & D applied to the New York City Department of Transportation and made a plea to the local community board for the authority to use and post signage at this bus stop. Z & D offers regular and frequent bus transport from the Canal Street bus stop to Ohio and Kentucky. When a person purchases a ticket for bus service from Z & D, they are engaging in a contract for services. The service provided is a bus tour to a particularized destination. The expectation of the purchaser/passenger is that they will board the bus at the Canal Street bus stop and arrive safely at the final destination. Naturally, it is reasonable to expect that the bus would have to stop along the way for refueling, and for the bus driver to take a break, depending on the extent of the journey. Nonetheless, the contract is complete upon the delivery and arrival of the passenger at the agreed upon destination at the time of the purchase of the bus ticket. Z & D engages in a systematic course of doing business in New York. Z & D has entrenched itself so deeply in New York that it has engaged with the local municipality to obtain rights and privileges one would expect an "at home" corporation to have and maintain. Z & D does not just conduct business in New York. New York is the major hub for bus transport. Z & D may be a New Jersey corporation, but it appears to be at home in New York based upon the foregoing. The exercise of general personal jurisdiction over Z & D would not offend due process, as it maintains an office, and conducts its affairs from New York.{**75 Misc 3d at 590}

As to specific jurisdiction, there must be a relatedness between the transaction and the [*6]legal claim, such that the latter is not completely unmoored from the former. Here, the transaction is a contract for services, to wit: the purchase of a bus ticket to transport an individual from New York to Ohio. The court looks to plaintiff's complaint and finds that the relevant claim against Z & D is for negligence in the operation, control, maintenance, supervision, and repair of the bus that Z & D used to provide the service contracted for. Moreover, Z & D admits in its own papers that the proximate cause of the accident is solely due to the negligence of its driver, who lost control of the bus, causing it to roll and thereafter rest in a position where it blocked all lanes of travel and the shoulder of the roadway. Thereafter, and as a result, defendant FedEx Ground's vehicle collided with the bus, and the UPS vehicle collided with the FedEx Ground vehicle. Plaintiff contracted with Z & D for the service of transportation from New York to Ohio. It is of no moment that the accident happened in the State of Pennsylvania, under this claim, as the contract for the provided service occurred in New York, and transpired between a New York resident, and a New Jersey corporation that was "at home" in New York, based upon the continuous, systematic, and regular way that it conducted its business of bus transport. Further entrenching itself in the state by contracting with the municipality for a grant of authority (limited by the laws of the City and State of New York), Z & D utilizes and maintains a bus stop location with signage on a New York City owned and operated bus stop pole and sign, permanently affixed to the sidewalk. This was a regular bus route for Z & D that was used multiple times per day. These facts cannot be ignored in determining whether Z & D was "at home" in New York State, including the continuous and systematic nature of Z & D's conduct within the state. Z & D holds itself out as a New York corporation, in the manner and frequency it conducts business in New York. Z & D enjoyed the benefits and protection of the laws of the State of New York, including the right to resort to its courts for the enforcement of its rights. There is no doubt that New York is indeed a "surrogate principal place of business" for Z & D, and that the facts exemplify an "exceptional case," as provided for by Daimler AG and its progeny.

This court finds it quite curious that Z & D failed to address these facts in its opposition to plaintiff's motion. Further, Z & D barely broaches the facts and issues raised by plaintiff in{**75 Misc 3d at 591} her reply papers. This court finds that Z & D's contacts with New York State are far more than "minimum contacts," and that the maintenance of the suit in New York does not offend traditional notions of fair play and substantial justice. Based upon the foregoing, defendant Z & D's motion to dismiss pursuant to CPLR 3211 (a) (8) is denied, without prejudice to renew.

B. Defendants FedEx Ground Package, Penske Truck Leasing, and United Parcel Service, Inc.

Using the two-prong test to determine whether jurisdiction exists, the court finds that FedEx Ground, Penske, and UPS are not incorporated in New York and do not maintain a principal place of business in New York. FedEx Ground is a Delaware corporation that maintains its principal place of business in Allegheny County, Pennsylvania. Penske is a Delaware business corporation that maintains a corporate office and principal place of business in Reading, Pennsylvania.

[2] Plaintiff has failed to plead facts which establish that this is an exceptional case (as she has done so with Z & D), such that FedEx Ground, Penske, and UPS's business transactions within New York would render them "at home" and of an exceptional nature, for the purposes of general personal jurisdiction, pursuant to Daimler AG and its progeny. FedEx Ground, Penske, and UPS [*7]conduct business in every state of the union, and this court cannot, without specific facts, contradict the spirit of general jurisdiction which can only be exercised in forums in which the foreign defendant is found to be "at home." It is well settled law that the registration to do business, and the designation of an agent within the state for the purpose of acceptance of service, does not constitute consent to New York's general personal jurisdiction.

To satisfy the second prong of the analysis, as to specific jurisdiction, New York State courts have held that there must be an "articulable nexus" or "substantial relationship" between a defendant's business activities in New York and the cause of action sued upon (Qudsi, 173 AD3d at 923, citing D&R Global Selections, S.L. v Bodega Olegario Falcon Pineiro, 29 NY3d 292 [2017]). Here, the multivehicle accident on the Pennsylvania Turnpike in no way arose from, let alone had a substantial relationship with any FedEx Ground, Penske, or UPS business transaction within the State of New York, and plaintiff has not alleged as such. The facts of this case are substantially similar to those presented to the Second Department in Santiago v{**75 Misc 3d at 592}Highway Frgt. Carriers, Inc. (153 AD3d 750 [2d Dept 2017]), where a New York plaintiff brought suit in Nassau County based upon an accident that took place in Virginia between plaintiff's vehicle and a tractor trailer. The defendant truck driver was a resident of New Jersey, and the defendant trucking company was both incorporated and had its principal place of business in Pennsylvania (id.). In upholding the trial court's dismissal for lack of personal jurisdiction, the Second Department rejected plaintiff's argument that jurisdiction existed under CPLR 302 (a) (1) of New York's long-arm statute, because the accident happened in Virginia, and the defendant trucking company's activities in New York did not bear a "substantial relationship" (Zapata v Training, 2020 NY Slip Op 32034[U],{**75 Misc 3d at 2} *2-3 [Sup Ct, Bronx County 2020]) to the subject matter of the underlying action. As was the result in Santiago and Zapata, there is no specific jurisdiction under CPLR 302 (a) (1) over FedEx Ground, Penske, and UPS in connection with the subject matter of plaintiff's complaint.

With respect to specific jurisdiction under CPLR 302 (a) (3), the statute requires that the nondomiciliary defendant have "commit[ted] a tortious act without the state causing injury to person or property within the state" (CPLR 302 [a] [3]). To determine whether an injury to a person "within the state" has occurred, New York courts apply the "situs of injury" test. That is, the situs of injury is where "the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred" (USA Sevens LLC v World Rugby Ltd., 191 AD3d 620, 621 [1st Dept 2021]; U.S. Immigration Fund LLC v Litowitz, 182 AD3d 505 [1st Dept 2020]). In applying the "situs of injury" test this court recognizes that the place where plaintiff sustained her injuries is where the accident occurred, not where plaintiff resided or experienced the consequences of, or received care for the resulting injuries (Zapata, 2020 NY Slip Op 32034[U], *2-3; accord Santiago, 153 AD3d at 752; Bloomgarden v Lanza, 143 AD3d 850 [2d Dept 2016]). Here, plaintiff's complaint makes clear, and no party disputes, that the accident, or the original event that caused the injuries, occurred in Westmoreland County, in the Commonwealth of Pennsylvania. As such, this court may not exercise personal jurisdiction over FedEx Ground, Penske and UPS pursuant to CPLR 302 (a) (3).

For the foregoing reasons, defendant FedEx Ground's motion to dismiss plaintiff's complaint (mot seq No. 001) is granted.{**75 Misc 3d at 593} Defendant Penske's motion to dismiss plaintiff's complaint (mot seq No. 004) is granted. Defendant UPS's motion to dismiss plaintiff's complaint (mot seq No. 002) is granted.

Ordered that motion sequence No. 001 is granted, and plaintiff's complaint as to defendant FedEx Ground Package is dismissed with prejudice, and it is further ordered that motion sequence No. 002 is granted, and plaintiff's complaint as to defendant United Parcel Service, Inc., is dismissed with prejudice, and it is further ordered that motion sequence No. 003 is denied, without prejudice to renew, and it is further ordered that motion sequence No. 004 is granted, and plaintiff's complaint as to defendant Penske Truck Leasing Corporation is dismissed with prejudice.