ARROYO v. MOUNTAIN SCHOOL (2009)

Order, Supreme Court, New York County (Carol Edmead, J.), entered April 16, 2009, which, insofar as appealed from, denied defendants' motion to dismiss the complaint for lack of personal jurisdiction, unanimously reversed, on the law, without costs, and the motion granted. The clerk is directed to enter judgment accordingly.

Plaintiff, a New York resident who was a student at defendant Mountain School, was injured in a bicycle accident at the school's premises in Vermont. The Mountain School is a program of defendant Milton Academy, which is located in Massachusetts.

Defendants are not subject to general jurisdiction pursuant to the “solicitation plus” doctrine (see e.g. Apicella v. Valley Forge Military Academy & Jr. Coll., 103 A.D.2d 151, 478 N.Y.S.2d 663 [1984]; Weil v. American Univ., 2008 WL 126604, 2008 U.S. Dist. LEXIS 1727 [S.D.N.Y.2008]; Krepps v. Reiner, 414 F.Supp.2d 403 [S.D.N.Y.2006] ). Milton Academy advertises neither on the radio nor on TV in New York, visits New York only occasionally, and held only three alumni-related events in New York in 2007 and three in 2008. The fact that it offers its students bus service to New York-with stops in Connecticut-on five holidays is not dispositive (see Meunier v. Stebo, Inc., 38 A.D.2d 590, 328 N.Y.S.2d 608 [1971] ). Unlike the defendant in Kingsepp v. Wesleyan Univ., 763 F.Supp. 22 [S.D.N.Y.1991], Milton has issued no bonds in New York and owns no real property in New York. Furthermore, there was no evidence that Milton sent representatives to 44 secondary schools in New York State per year or had more than $14 million in a New York bank account (cf. 763 F.Supp. at 27).

Even if, arguendo, Milton engaged in “substantial solicitation” (Pacamor Bearings v. Molon Motors & Coil, 102 A.D.2d 355, 357, 477 N.Y.S.2d 856 [1984] ), it did not engage in sufficient “activities of substance in addition to solicitation” (Laufer v. Ostrow, 55 N.Y.2d 305, 310, 449 N.Y.S.2d 456, 434 N.E.2d 692 [1982] ). CityTerm is a program of nonparty Masters School, not of defendants. “A business relationship with a New York entity does not provide a sufficient basis for jurisdiction at least in the absence of a showing that that company has become an agent or division of the company over which the plaintiff seeks to exercise personal jurisdiction” (Landoil Resources Corp. v. Alexander & Alexander Servs., 918 F.2d 1039, 1046 [2d Cir.1991] ). Plaintiff, who bears the burden of proving jurisdiction (see e.g. Copp v. Ramirez, 62 A.D.3d 23, 28, 874 N.Y.S.2d 52 [2009], lv. denied 12 N.Y.3d 711, 2009 WL 1543926 [2009] ), did not show that the Masters School was defendants' agent, much less a division of defendants.

The fact that Milton had approximately $14 million (less than 10% of its endowment) invested with New York firms as of June 30, 2006 does not subject it to general jurisdiction here. “[T]he investment of money in New York cannot alone be considered a form of ‘doing business' for the purpose of CPLR § 301 ․; ‘if it were, then almost every company in the country would be subject to New York's jurisdiction’ ” (Weil, 2008 WL 126604 at *4, 2008 U.S. Dist. LEXIS 1727 at *14, quoting Schenker v. Assicurazioni Generali S.p.A., Consol., 2002 WL 1560788 at *5, 2002 U.S. Dist. LEXIS 12845 at *17 [S.D.N.Y.2002]; see also Nelson v. Massachusetts Gen. Hosp., 2007 WL 2781241, *31, 2007 U.S. Dist. LEXIS 70455, *96 [S.D.N.Y.2007], affd. 299 Fed.Appx. 78 [2d Cir.2008] ).

Similarly, the fact that Milton has a New York bank account for the purpose of receiving wire transfers, which funds are then transferred to a Morgan Stanley account in Boston, does not subject it to general jurisdiction (see In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, 2003 WL 1807148, *5, 2003 U.S. Dist. LEXIS 5575, *18 [S.D.N.Y.2003]; see also Krepps, 414 F.Supp.2d at 407). Defendants' ordinary business is educating students, which they do in Massachusetts and Vermont; their “maintenance of a bank account in New York is only incidental to” that business (Weinstock v. Le Sport, 194 A.D.2d 400, 401, 598 N.Y.S.2d 511 [1993] ).

Defendants are not subject to specific jurisdiction under CPLR 302(a)(1). Even if defendants transacted business within New York, “plaintiff's ․ injury and the tort action based on it cannot be said to have arisen directly out of this” transaction (Holness v. Maritime Overseas Corp., 251 A.D.2d 220, 224, 676 N.Y.S.2d 540 [1998]; see e.g. Diskin v. Starck, 538 F.Supp. 877, 879-880 [E.D.N.Y.1982]; Meunier, 38 A.D.2d at 590-591, 328 N.Y.S.2d 608). Defendants' duty of care to plaintiff arose in Vermont, not in New York (see e.g. Brandt v. Toraby, 273 A.D.2d 429, 430-431, 710 N.Y.S.2d 115 [2000]; Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317, 321-322 [2d Cir.1964] ).