YACONE v. EXCALIBRE MOTOR LINES (2002)

 Plaintiffs commenced this negligence action seeking damages for injuries sustained by plaintiff Michael Yacone in 1996 when his vehicle collided with a vehicle owned by defendant Excalibre Motor Lines (Excalibre) and driven by defendant Neville Wright in the Province of Ontario, Canada.   Supreme Court properly granted defendants' motion to dismiss the complaint based on lack of personal jurisdiction.   Contrary to plaintiffs' contention, Excalibre, a Canadian corporation in the business of transporting freight, is not subject to personal jurisdiction in New York pursuant to CPLR 301.  “A foreign corporation is amenable to suit in New York courts under CPLR 301 if it has engaged in such a continuous and systematic course of ‘doing business' here that a finding of its ‘presence’ in this jurisdiction is warranted” (Landoil Resources Corp. v. Alexander & Alexander Servs., 77 N.Y.2d 28, 33, 563 N.Y.S.2d 739, 565 N.E.2d 488;  see Laufer v. Ostrow, 55 N.Y.2d 305, 309-310, 449 N.Y.S.2d 456, 434 N.E.2d 692;  McGowan v. Smith, 52 N.Y.2d 268, 272, 437 N.Y.S.2d 643, 419 N.E.2d 321).   The test is whether “the aggregate of the corporation's activities in the State [are] such that [the corporation] may be said to be present in the State not occasionally or casually, but with a fair measure of permanence and continuity” (Laufer, 55 N.Y.2d at 310, 449 N.Y.S.2d 456, 434 N.E.2d 692 [internal quotation marks omitted];  see International Shoe Co. v. State of Washington, 326 U.S. 310, 317-318, 66 S.Ct. 154, 90 L.Ed. 95;  Landoil Resources Corp., 77 N.Y.2d at 33-34, 563 N.Y.S.2d 739, 565 N.E.2d 488;  Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915).   In addition, “the quality and nature of the corporation's contacts with the State [must be] sufficient to make it reasonable and just according to traditional notions of fair play and substantial justice that it be required to defend the action here” (Laufer, 55 N.Y.2d at 310, 449 N.Y.S.2d 456, 434 N.E.2d 692 [internal quotation marks omitted] ).

 In this case, Excalibre did not own property in New York, none of its employees resided in New York, and it made no deliveries in New York. In addition, Excalibre did not advertise in New York and had no bank accounts in New York. Although Excalibre's vehicles traveled over New York roads, that travel constituted only 2.36% of the total miles traveled by the vehicles in 1996.   Thus, the court properly concluded that Excalibre's occasional presence in New York is insufficient to subject Excalibre to personal jurisdiction in New York (see Swindell v. Florida East Coast Ry. Co., 42 F Supp 2d 320, 323 324, affd. 201 F.3d 432;  William Sys. v. Total Frgt. Sys., 27 F.Supp.2d 386, 388;  Mullins v. Hak, 674 F.Supp. 997, 999;  Glacier Refrig. Serv. v. American Transp., 467 F.Supp. 1104, 1106-1107).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: