author: Rivera, J.

text:
    [23 NE3d 955, 998 NYS2d 688]
    The People of the State of New York, Appellant, v Tyrone Sweat, Respondent.
    Argued September 16, 2014;
    decided October 28, 2014

      POINTS OF COUNSEL

      Frank A. Sedita, III, District Attorney, Buffalo (Nicholas T. Texido and Donna A. Milling of counsel), for appellant.
    County Court’s finding of contempt was primarily remedial instead of punitive. Thus, criminal prosecution of defendant was not barred by the Double Jeopardy Clause. (Blockburger v United States, 284 US 299; People v Vasquez, 89 NY2d 521; People v Colombo, 31 NY2d 947; People v Wood, 95 NY2d 509; Menna v New York, 423 US 61; People v Matra, 42 AD2d 865; Matter of Capio v Justices of Supreme Ct., Kings County, 41 AD2d 235, 34 NY2d 603; People v Ruggiano, 39 AD2d 113; Hicks v Feiock, 485 US 624; United States v Winter, 70 F3d 655.)

      The Abbatoy Law Firm, PLLC, Rochester {David M. Abbatoy of counsel), and John R. Nuchereno, Buffalo, for respondent.
    County Court found respondent in criminal contempt and held him in custody to punish respondent for obstructing the proceedings and impairing the court’s authority. Therefore, criminal prosecution of respondent for the same conduct was properly barred by the Double Jeopardy Clause in the courts below. (Matter of Rubackin v Rubackin, 62 AD3d 11; Matter of McCormick v Axelrod, 59 NY2d 574; Matter of Sentry Armored Courier Corp. v New York City Off-Track Betting Corp., 75 AD2d 344; People v Ruggiano, 39 AD2d 113; Blockburger v United States, 284 US 299; Matter of Douglas v Adel, 269 NY 144; Matter of Rotwein [Goodman], 291 NY 116; People v Colombo, 31 NY2d 947; Matter of Capio v Justices of Supreme Ct., Kings County, 34 NY2d 603; People v Boston, 3 Misc 3d 1107[A], 2004 NY Slip Op 50484[U].)
   OPINION OF THE COURT

Rivera, J.

The People appeal from an order of the Erie County Court dismissing, on double jeopardy grounds, an information charging defendant Tyrone Sweat with two counts of criminal contempt in the second degree (Penal Law § 215.50 [4]). We hold that where a court subjects a defendant to conditional imprisonment in an attempt to compel defendant to testify, and does not otherwise adjudicate defendant to be in criminal contempt or impose punishment that is criminal in nature, double jeopardy will not bar a subsequent prosecution for contempt under the Penal Law. Accordingly, we reverse.

I

On the morning of February 23, 2012, defendant refused to testify at the trial of his brother, Michael Sweat, in Erie County Court. Defendant had previously testified at a grand jury proceeding against his brother and received transactional immunity. Thus, defendant could claim no Fifth Amendment privilege against testifying at trial. When the Assistant District Attorney asked defendant to explain the grounds for his refusal, he replied “I don’t want to, so I don’t.” The court explained transactional immunity and informed defendant that the law required him to testify, but defendant continued to refuse.

The court also warned defendant that if he refused to testify the People would likely seek contempt, to which the People stated “[wje’ll ask that [defendant] be cited for civil contempt and confined until he agrees to testify or until the end of the proceeding, and also we’ll charge him with criminal contempt for refusing to be sworn and testify.” The court then inquired of defendant if he understood the consequences of his actions and defendant indicated that he did. The court then cited defendant for contempt and ordered him to be taken into custody. Referring to the People’s future actions against defendant, the court stated that it “[m]ight be a good idea to give [defendant] a lawyer if you’re going to charge him with a criminal charge,” to which the People agreed.

Later that same day, during the court’s afternoon session, assigned counsel appeared on behalf of defendant and advised the court that he had discussed the matter with defendant, and that defendant still refused to testify. The court called defendant to the courtroom, explained to defendant once more that he had immunity and was obliged to speak, and again asked him if he refused to do so. Defendant reiterated that he was unwilling to testify. The court pressed the issue and asked if defendant had any explanation for his refusal to testify. Defendant stated he had nothing to say and just did not want to testify.

The court then declared:

“I find you’re in contempt in my immediate view and presence for engaging in conduct which has obstructed and threatened to obstruct these proceedings and impair its authority — my authority to preside over these proceedings and, therefore, I will issue a mandated commitment. And he’ll be taken into custody. . . . [Depending on how long this goes and where we are from here and whether or not the People bring any charge of criminal contempt, we’ll proceed further with this matter within the next day or so.”

The court immediately inquired about the criminal charges, and the People informed the court that they intended to “file the criminal charges before the end of the trial.” The court remarked that “obviously, you don’t stay in jail forever on a contempt proceeding.” The court informed defendant that he was going to be confined until the proceedings were completed, when there would be a “determination at that point as to what punishment, if any, [would] be meted out.” The court also advised defendant’s counsel, in defendant’s presence, that if defendant needed to speak with counsel, and counsel needed to communicate with the court, that counsel should “feel free to do so.”

The next day, before continuing with the trial of defendant’s brother, the court confirmed with counsel that defendant still refused to testify. Counsel so confirmed, and the People requested that the court produce defendant to establish his refusal on the record. Upon defendant’s return to the courtroom, the court again asked defendant if anything had changed since the previous day and whether he was still refusing to testify. After defendant confirmed he would not testify, he was taken back into custody.

That same day, Michael Sweat’s trial ended in an acquittal. Upon hearing from the People that no criminal charges had been filed against defendant, the court immediately executed an order releasing defendant from custody.

Less than a month later the People charged defendant by information in Buffalo City Court with two counts of criminal contempt in the second degree (Penal Law § 215.50 [4]), stemming from his refusal to testify at his brother’s trial. As relevant to this appeal, defendant moved, inter alia, to dismiss on double jeopardy grounds.

City Court granted the motion and dismissed the charges, finding County Court’s prior contempt determination to be criminal in nature as having been made during the course of a criminal trial and necessarily imposed under the Judiciary Law’s criminal contempt provision. The contempt adjudication and the charges under the Penal Law having been based on the same conduct, City Court determined the charges were therefore barred by double jeopardy.

Erie County Court, then sitting as the intermediate appellate court, affirmed. County Court described the contempt proceedings as a “hybrid combination of both criminal and civil characteristics,” but found that the proceedings were criminal in nature because the court ordered defendant’s confinement, and in so doing relied on language found in the criminal contempt provisions of the Judiciary Law (see Judiciary Law § 750 [A] [1]).

A Judge of this Court granted the People leave to appeal (21 NY3d 1010 [2013]). We now reverse.

II

The People argue that defendant was neither tried nor prosecuted, but instead was “temporarily held in contempt” for the remedial purpose of coercing defendant to testify in court. Therefore, the court’s summary contempt proceeding does not constitute punishment for double jeopardy purposes, or bar prosecution for criminal contempt under the Penal Law.

Defendant responds that the court exercised its authority under the criminal provisions of the Judiciary Law to hold him in criminal contempt. He further argues that his confinement, pursuant to the court issued mandate of commitment, constitutes punishment for obstructing the court’s proceedings and impairing its authority. Therefore, the contempt is criminal in nature and his prosecution under Penal Law § 215.50 is barred by double jeopardy.

Essentially the People and defendant dispute whether the purpose for the court’s contempt finding and defendant’s confinement was to punish defendant for his refusal to testify at his brother’s trial. While the People base their argument on the character of the contempt and its intent to compel a defendant’s obedience to the law, the defendant relies on a narrow interpretation of the Judiciary Law which ignores the purpose of the contempt. Under defendant’s approach, contempt is criminal in nature by the mere fact of a court’s invocation of language found in the law’s criminal contempt provisions, regardless of actions by the court indicating the contempt was intended to be remedial. We reject the defendant’s invitation to read the statute in a way that undermines settled constitutional principles, and agree with the People that defendant’s confinement did not constitute punishment for double jeopardy purposes.

m

This appeal illustrates the confusion attendant to the proper legal characterization of a contempt determination under our Judiciary Law. That confusion is compounded when, as in the case before us, a defendant is also prosecuted for criminal contempt under the Penal Law. The opinions of the City Court and County Court, as well as the arguments propounded by the People and defendant, illustrate the challenges faced by those seeking to bring coherence to this area of the law. The courts and the parties here struggled with whether the contempt determination was more appropriately labeled “civil” or “criminal.” As we discuss below, for purposes of a double jeopardy analysis, labels are not dispositive; what matters is the “character and purpose” of the actions of the court imposing contempt. As explained by the United States Supreme Court, “[t]he test may be stated as: what does the court primarily seek to accomplish by imposing sentence?” (Shillitani v United States, 384 US 364, 370 [1966].)

We begin our discussion with a brief description of the law, specifically the relevant contempt provisions of the Judiciary and Penal Laws, and select judicial decisions, including decisions from the Supreme Court of the United States, explicating the proper approach to constitutional limitations on contempt proceedings.

A. Judiciary Law Article 19

Article 19 of the Judiciary Law authorizes a court to punish a person for “criminal” or “civil” contempt, and permits adjudication and sentence by way of summary proceeding. The court determines which provisions of the Judiciary Law apply and which to invoke based on the contemnor’s conduct and the requirements of the statute.

Section 750, titled “Power of courts to punish for criminal contempts,” limits a court’s power to punish for criminal contempt a person who commits any of the specifically enumerated actions set forth in this provision “and no others” (§ 750 [A]). Under this section a court may hold a person in criminal contempt for “[disorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority” (§ 750 [A] [1]); “[b]reach of the peace, noise, or other disturbance, directly tending to interrupt its proceedings” (§ 750 [A] [2]); “[w]ilful disobedience to its lawful mandate” (§ 750 [A] [3]); “[Resistance wilfully offered to its lawful mandate” (§ 750 [A] [4]); “[cjontumacious and unlawful refusal to be sworn as a witness; or, after being sworn, to answer any legal and proper interrogatory” (§ 750 [A] [5]); “[publication of a false, or grossly inaccurate report of its proceedings [except] a court [cannot] punish as a contempt, the publication of a true, full, and fair report of a trial, argument, decision, or other proceeding therein” (§ 750 [A] [6]); or “[wilful failure to obey any mandate, process or notice issued pursuant to articles sixteen, seventeen, eighteen, eighteen-a or eighteen-b of the judiciary law ... or subjection of an employee to discharge or penalty on account of his absence from employment by reason of jury or subpoenaed witness service” (§ 750 [A] [7]).

By way of punishment, section 751 authorizes a fine not exceeding $1,000, incarceration not more than 30 days, or both. Where a person is committed for contempt pursuant to section 751, the court must issue a mandate of commitment, setting forth the “particular circumstances of [the contemnor’s] offense” as required under section 752.

Section 753, titled “Power of courts to punish for civil contempts,” allows a court “power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced” in instances, e.g., where an individual disobeys a lawful mandate of the court (§ 753 [A] [1]), involving nonpayment of a sum of money adjudged by the court to be paid (§ 753 [A] [3]), or where an individual refuses a court’s lawful mandate to testify (§ 753 [A] [5]).

The Judiciary Law permits a court to punish for “criminal” or “civil” contempt in a summary proceeding (see Judiciary Law §§ 754, 755). Section 755 provides that “[w]here the offense is committed in the immediate view and presence of the court, or of the judge or referee, upon a trial or hearing, it may be punished summarily.” Under this section, the judge or referee must issue an order “stating the facts which constitute the offense and which bring the case within the provisions of this section, and plainly and specifically prescribing the punishment to be inflicted therefor.”

The Judiciary Law provides that a person held in contempt may also be criminally prosecuted and the prior contempt may be considered for sentencing purposes. Thus, “[a] person, punished as prescribed in this article, may, notwithstanding, be indicted for the same misconduct, if it is an indictable offense; but the court, before which he is convicted, must, in forming its sentence, take into consideration the previous punishment” (Judiciary Law § 776).

B. Criminal Contempt under the Penal Law

Contempt may also be a crime punishable under New York’s Penal Law (see generally Penal Law §§ 215.50 [second degree], 215.51 [first degree], 215.52 [aggravated]). The language of Penal Law § 215.50, the section under which defendant was charged, closely resembles its Judiciary Law counterpart, making unlawful, inter alia, “[disorderly, contemptuous, or insolent behavior, committed during the sitting of a court” (§ 215.50 [1]); “[i]ntentional disobedience or resistance to the lawful process or other mandate of a court” (§ 215.50 [3]); or “[contumacious and unlawful refusal to be sworn as a witness in any court proceeding or, after being sworn, to answer any legal and proper interrogatory” (§ 215.50 [4]).

As with Judiciary Law § 776, the Penal Law similarly states that an adjudication of criminal contempt under the Judiciary Law serves as no bar to prosecution for criminal contempt. Penal Law § 215.54 provides:

“Adjudication for criminal contempt under subdivision A of section seven hundred fifty of the judiciary law shall not bar a prosecution for the crime of criminal contempt under section 215.50 based upon the same conduct but, upon conviction thereunder, the court, in sentencing the defendant shall take the previous punishment into consideration.”

Thus, the legislature has made clear its intent, as a pure statutory matter, that a person may be subject to punishment pursuant to a finding of contempt under the Judiciary Law, as well as a criminal prosecution under the Penal Law.

C. Judicial Decisions

Constitutional and statutory prohibitions barring double jeopardy shield a defendant from multiple criminal punishments arising from the same offense (see US Const Amend v [“nor shall any person be subject for the same offence to be twice put in jeopardy”]; NY Const, art I, § 6 [“No person shall be subject to be twice put in jeopardy for the same offense”]; see also CPL 40.20 [1] [“A person may not be twice prosecuted for the same offense”]; People v Wood, 95 NY2d 509, 513 [2000] [imposition of multiple criminal punishments for the same offense is barred by the Double Jeopardy Clause]). Double jeopardy has a particular application to contempt matters and bars a subsequent prosecution where a prior contempt sentence serves a punitive rather than remedial purpose (see Colombo v New York, 405 US 9 [1972]).

The test for determining whether contempt is of the type that constitutes punishment in a constitutional sense is well articulated in Shillitani, and its companion case, Pappadio v United States. There, defendants were each incarcerated for their respective refusals to answer certain questions before the same grand jury (Shillitani, 384 US at 365-366). Both defendants were found guilty of criminal contempt, and each sentenced to two years’ imprisonment, subject to a “purge clause” that permitted defendants’ release if they answered the questions before the end of their respective sentences (id.). The United States Supreme Court rejected defendants’ claims that they were confined without the benefit of indictment or jury trial, holding that the sentences were conditional, and therefore the actions constituted civil contempt proceedings not subject to the constitutional safeguards of indictment or jury trial (id. at 372).

Essential to the Court’s decision was its determination that despite its obvious punitive aspects, imprisonment serves a remedial purpose “if the court conditions release upon the contemnor’s willingness to testify” (id. at 370, citing Nye v United States, 313 US 33, 42-43 [1941]). For, “ ‘[i]t is not the fact of punishment but rather its character and purpose that often serve to distinguish’ civil from criminal contempt” (id. at 369, quoting Gompers v Bucks Stove & Range Co., 221 US 418, 441 [1911]). Where a defendant is held in contempt for the remedial purpose of compelling compliance, imprisonment continues until such time as the contemnor acquiesces or is no longer able to do so (see Shillitani, 384 US at 371). Once the contemnor agrees, there is no remedial purpose to be served by continued confinement. Contemnors, therefore, hold “the keys of their prison in their own pockets” (id. at 368).

In contrast, where a contemnor is sentenced to imprisonment for a definite period which cannot be affected — that is, ended — by the contemnor’s compliance with the law, then the contempt is not remedial but punitive. As the Supreme Court has stated, “[i]f the sentence is limited to imprisonment for a definite period, the defendant is furnished no key, and [the defendant] cannot shorten the term by promising not to repeat the offense” (Gompers, 221 US at 442-443).

The Court reaffirmed these principles in Hicks v Feiock (485 US 624, 632 [1988]). There, defendant challenged on due process grounds his contempt adjudication and subsequent incarceration for failure to make child support payments (id. at 628). Ultimately, the Court found the record too underdeveloped and remanded (id. at 640-641). However, the Court restated the legal rules applicable to determining the character of contempt and noted that “[i]f the relief provided is a sentence of imprisonment, it is remedial if ‘the defendant stands committed unless and until he performs the affirmative act required by the court’s order,’ and is punitive if ‘the sentence is limited to imprisonment for a definite period’ ” (id. at 632, quoting Gompers, 221 US at 442).

Addressing a double jeopardy challenge to our Judiciary Law, the United States Supreme Court made clear that it is the nature of the contempt that matters. In Colombo, the court found defendant in contempt for his refusal to testify before a grand jury after being granted immunity. The court sentenced the defendant to 30 days’ imprisonment and a $250 fine. When defendant’s appellate challenge proved fruitless, he offered to testify. When his offer was refused, defendant paid his fine and served his sentence. Subsequently, the People indicted the defendant under the Penal Law. Defendant unsuccessfully chailenged his indictment on double jeopardy grounds, and this Court affirmed (People v Colombo, 25 NY2d 641 [1969]).

The Supreme Court reversed and concluded that the trial court’s determination constituted a judgment for “criminal contempt” within the meaning of the Double Jeopardy Clause because “[the] petitioner was sentenced to a definite term in jail and ordered to pay a fine, and neither the prosecutor nor the trial court considered his offer to testify as sufficient to foreclose execution of the sentence” (Colombo, 405 US at 10-11). Thus, the contempt decision was not remedial but punitive, designed to inflict a sanction for past conduct rather than to compel the petitioner’s testimony in the future.

It is, thus, well settled that the character and purpose are the central inquiry in deciding whether double jeopardy bars a criminal prosecution based on actions that resulted in a previous contempt adjudication and sentence. Whether a state court labels the contempt as “criminal” or “civil” is of no moment. As the Supreme Court stated in Hicks, “the labels affixed either to the proceeding or to the relief imposed under state law are not controlling” (Hicks, 485 US at 631).

In Wood we applied the teaching of Hicks, noting that we rely on the court’s purpose, not descriptive labels, when determining the nature of contempt for double jeopardy purposes (Wood, 95 NY2d at 513 n 3). Where such purpose is to coerce compliance rather than a definite term of imprisonment and punishment, the contempt is not punitive in nature (id.). Statements in our prior cases that under the Judiciary Law civil contempt is intended to be remedial, while criminal contempt is intended to punish, are not at odds with an analysis that focuses on the actual character and purpose of the contempt. These cases must be understood to address the actual adjudication and imposition of contempt, apart from the labels attached to those actions (see e.g. State of New York v Unique Ideas, 44 NY2d 345 [1978]; Matter of Department of Envtl. Protection of City of N.Y. v Department of Envtl. Conservation of State of N.Y., 70 NY2d 233 [1987]).

IV

Upon the record before us, we conclude that County Court did not summarily adjudicate and impose a punitive sentence upon defendant for criminal contempt under the Judiciary Law. County Court’s statements and conduct, as well as its lack of compliance with applicable sections of the law, persuade us that it did not impose punishment for criminal contempt under any statutory authority to do so.

The court’s statements to defendant, his counsel and the People establish that the “character and purpose” of the contempt determination, and defendant’s confinement during the course of his brother’s criminal trial, were remedial. Most significantly, even after holding defendant in contempt, the court continued to inquire of defendant and his counsel whether defendant was willing to testify, indicating that defendant still had an opportunity to comply with the law. For example, the morning immediately following the court’s declaration of contempt, the court delayed the brother’s criminal trial to inquire of counsel and defendant whether defendant would testify. The only conclusion to be drawn from the court’s question to defendant as to whether anything had “changed since yesterday” is that it held out the possibility that something had changed, and that defendant’s confinement persuaded him to testify. As “conditional imprisonment” is “based entirely upon the contemnor’s continued defiance,” the defendant held the keys to his release (see Shillitani, 384 US at 370-371).

For a court to summarily punish contempt, our Judiciary Law requires issuance of an order “stating the facts which constitute the offense” and “plainly and specifically prescribing the punishment to be inflicted” (Judiciary Law § 755 [emphasis added]). Notably absent from County Court’s order of contempt here is a plain and specific statement of the punishment to be imposed upon defendant. The record reveals that the court issued a mandate of commitment and that defendant was confined pursuant to that mandate; nowhere does the record indicate the precise term of commitment.

The uncertainty of the duration of the underlying summary contempt proceeding forecloses a finding that defendant’s confinement constitutes, as a matter of law, a sentence of a definite term of imprisonment. We reject the approach taken by the intermediate appellate court that found the earlier contempt proceeding “never formally pronounced sentence,” but nevertheless treated defendant’s release at the end of his brother’s criminal trial as “tantamount to a sentence of time served.” That interpretation is at odds with the language of the Judiciary Law, which states that the order must set forth the punishment “plainly and specifically” (Judiciaiy Law § 755). To find a punitive sentence under section 755 where none was imposed we would also have to ignore the record, which indicates that the judge did not order defendant’s confinement as punishment for defendant’s contempt.

Compliance with this statutory requirement is indispensable and provides a reviewing court with the basis for the finding and sentence of contempt (see e.g. Matter of Lynch v Derounian, 41 AD2d 740, 741 [2d Dept 1973] [“A written order is indispensable to a review of a contempt citation”]; Matter of Loeber v Teresi, 256 AD2d 747, 749 [3d Dept 1998] [“The mandate that a contempt order be reduced to writing is an indispensable requirement”]; Eaton v Eaton, 46 AD3d 1432 [4th Dept 2007] [same]). The absence of compliance with this central requirement of section 755 supports our conclusion that County Court did not summarily adjudicate and punitively sentence defendant in criminal contempt under the Judiciary Law.

County Court never referred to the contempt as “criminal,” nor to the confinement as “punishment.” Quite the opposite. Reacting to the People’s indication that they would file criminal charges before the end of the trial, County Court stated that it would hold defendant until the criminal trial was completed, “and then . . . make a determination at that point as to what punishment, if any, [would] be meted out.” Clearly, whether, when and how to punish was unresolved and open to the court’s future determination.

V

In cases where a court invokes its contempt power to coerce a defendant’s obedience, the best practice would be for the court to state on the record that defendant may purge the contempt through compliance with the law. However, based on the record before us, it is clear that County Court did not summarily adjudicate defendant in criminal contempt or impose a definite sentence of punishment in accordance with the Judiciary Law. Therefore, defendant’s conditional imprisonment was for the remedial purpose of compelling defendant’s testimony, and as a consequence defendant’s subsequent prosecution for contempt was not barred by double jeopardy. Accordingly, the order of the Erie County Court should be reversed and the information reinstated.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Abdus-Salaam concur.

Order reversed and information reinstated.

      . Further, the Judiciary Law provides a unique remedy for cases arising out of labor disputes. Section 753-a (1) applies specifically in cases “aris[ing] out of any failure or refusal to obey any mandate of a court contained in or incidental to an injunction order granted by such court in any case involving or growing out of a labor dispute” and provides that a court cannot punish for contempt except after “a trial by jury to which the defendant shall be entitled as a matter of right.”

      . Penal Law § 215.51 criminalizes, in addition to what is proscribed by section 215.50, the intentional disobedience of a court imposed order of protection by intimidation, harassment or the use or threat of violence (§ 215.51 [b] et seq.). Penal Law § 215.52 makes the repeated contemnor subject to a class D felony.

      . The defendant seeks to distinguish federal precedent by arguing that criminal contempt may be purged in New York, relying on People v Leone (44 NY2d 315 [1978 per curiam]). However, the Court in Leone specifically left open that very question. Moreover, we do not see how this argument furthers the defendant’s position. The People argue that defendant could have sought release from custody by testifying, and thus the contempt was remedial and not punishment of the type that bars his future criminal prosecution. Defendant’s contention that criminal contempt may be purged in New York, thus relieving defendant of the court’s contempt determination, appears to support the People’s argument that the purpose of the contempt was to coerce the defendant into testifying at his brother’s trial, and supports the People’s case for reversal.


source: Caselaw Access Project

author: Chief Judge Lippman.

license: Public Domain

text:
    [23 NE3d 984, 998 NYS2d 716]
    In the Matter of Merry-Go-Round Playhouse, Inc., Respondent, v Assessor of City of Auburn et al., Appellants.
    Argued October 21, 2014;
    decided November 18, 2014

      Andrew S. Fusco, Auburn, for appellants.
    I. Merry-Go-Round Playhouse, Inc. fails to satisfy the legal tests laid out in Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg (79 NY2d 244 [1992]). (Matter of Maetreum of Cybele, Magna Mater, Inc. v McCoy, 111 AD3d 1098; Matter of Adult Home at Erie Sta., Inc. v Assessor & Bd. of Assessment Review of City of

      Middletown, 10 NY3d 205; Matter of Greer Woodycrest Children’s Servs. v Fountain, 74 NY2d 749; Matter of Presbyterian Residence Ctr. Corp. v Wagner, 66 AD2d 998; Otrada, Inc. v Assessor, Town of Ramapo, 41 AD3d 678.) II. Neither its charter nor articles of incorporation authorize Merry-Go-Round Playhouse, Inc. to be in the housing business. (Matter of Highland Lake Bible Conference v Board of Assessors of Town of Highland, 92 AD2d 655; Matter of Symphony Space v Tishelman, 60 NY2d 33; Matter of Corporation of Yaddo, 216 App Div 1, 259 NY 620; Matter of De Peyster, 210 NY 216; Mohonk Trust v Board of Assessors of Town of Gardiner, 47 NY2d 476; People ex rel. Watchtower Bible & Tract Socy. v Haring, 8 NY2d 350; Matter of Lackawanna Community Dev. Corp. v Krakowski, 12 NY3d 578; Matter of Stuyvesant Sq. Thrift Shop v Tax Commn. of City of N.Y., 54 NY2d 735.) III. The Court of Appeals should embrace the geographic nexus test found by Special Term below. (Matter of St. Luke’s Hosp. v Boyland, 12 NY2d 135; Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244; Matter of St. Joseph’s Health Ctr. Props. v Srogi, 51 NY2d 127; University of Rochester v Wagner, 63 AD2d 341; People ex rel. Clarkson Mem. Coll. of Tech. v Haggett, 274 App Div 732, 300 NY 595.) IY The Fourth Department mistakenly relied on seven cases easily distinguished from the case at bar. (Otrada, Inc. v Assessor, Town of Ramapo, 41 AD3d 678; Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244; Matter of St. Joseph’s Health Ctr. Props. v Srogi, 51 NY2d 127; University of Rochester v Wagner, 63 AD2d 341; Matter of Adult Home at Erie Sta., Inc. v Assessor & Bd. of Assessment Review of City of Middletown, 10 NY3d 205; Sephardic Congregation of S. Monsey v Town of Ramapo, 47 AD3d 915; Matter of Foundation for ‘A Course In Miracles” v Theadore, 172 AD2d 962.)

      Boyle & Anderson, P.C., Auburn {Charles H. Lynch, Jr., of counsel), for respondent.
    I. Merry-Go-Round Playhouse, Inc. is a corporation organized or conducted exclusively for exempt purposes. (Mohonk Trust v Board of Assessors of Town of Gardiner, 47 NY2d 476.) II. Merry-Go-Round Playhouse, Inc.’s use of the properties is reasonably incidental to its primary purposes. (Matter of Association of Bar of City of N.Y. v Lewisohn, 34 NY2d 143; Matter of Genesee Hosp. v Wagner, 47 AD2d 37; Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244; Matter of St. Luke’s Hosp. v Boyland, 12 NY2d 135; Matter of Young Womens Christian Assn. of Rochester v Wagner, 96 Misc 2d 361; People ex rel. Watchtower Bible

      & Tract Socy. v Haring, 8 NY2d 350; Otrada, Inc. v Assessor, Town of Ramapo, 41 AD3d 678; Matter of Adult Home at Erie Sta., Inc. v Assessor & Bd. of Assessment Review of City of Middletown, 10 NY3d 205; Matter of St. Joseph’s Health Ctr. Props. v Srogi, 51 NY2d 127.)

      Kathleen Hodgdon, Association of Towns of the State of New York, Albany and Richard Sinnott, New York State Conference of Mayors and Municipal Officials, Albany, for Association of Towns of the State of New York and another, amici curiae.
    Public policy necessitates a finding that the subject properties are not entitled to a real property tax exemption. (Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244; Matter of Genesee Hosp. v Wagner, 47 AD2d 37; Matter of Foundation for “A Course In Miracles” v Theadore, 172 AD2d 962; People ex rel. Watchtower Bible & Tract Socy. v Haring, 8 NY2d 350.)
   OPINION OF THE COURT

Chief Judge Lippman.

The issue presented by this appeal is whether certain real property owned by petitioner Merry-Go-Round Playhouse, a not-for-profit theater corporation, and used to house its staff and summer stock actors, is exempt from taxation under RPTL 420-a. We hold that Merry-Go-Round has established its entitlement to the tax exemption.

Merry-Go-Round was initially established in 1958 as the Auburn Children’s Theater and was incorporated as a not-for-profit corporation in 1972. Petitioner currently operates two theaters — a professional summer stock theater that puts on large scale musicals in the City of Auburn, and a year-round youth theater that tours New York State during the academic year, performing about 10 different productions for various school districts. According to its articles of incorporation, Merry-Go-Round was formed for the purposes of “augmenting] the speech and drama training of Auburn area children[;] . . . presenting] theater as the showcase for all the arts; . . . conducting] year round programs in the performing arts for children, teenagers and adults” and “any other act or thing incidental to or connected with the foregoing purposes or in advancement thereof.”

In order to hire qualified actors and staff, Merry-Go-Round recruits candidates from around the country. Petitioner has traditionally provided housing for many of its summer actors and staff to help compensate them for their relatively low salaries and the temporary nature of their employment. In the past, the organization had leased apartments for its employees through various local landlords, but as its operation grew, that process became unwieldy.

In 2011, Merry-Go-Round purchased the two apartment buildings at issue — one building is comprised of 14 units and the other of 16 units. The apartments are only for Merry-Go-Round’s actors and staff. They are not open to the public and Merry-Go-Round does not derive any income from the properties. In addition to reducing the burden of obtaining individual housing for each staff member, petitioner maintains that the living arrangement has “aided in cultivating a community among its artists” and that the actors and other staff “spend countless volunteer hours, off-stage and off-the-clock, running lines together, discussing creative ideas, working on wardrobes, creating sets and working in the furtherance of the purposes and mission of Merry-Go-Round.”

Soon after purchasing the properties, petitioner filed applications for real property tax exemptions with respondent assessor. The applications were denied and the denials were upheld by the City of Auburn’s Board of Assessment Review. Petitioner then commenced this RPTL article 7 proceeding for review of its tax assessments.

Supreme Court granted respondents’ motion and denied petitioner’s cross motion for summary judgment, finding that Merry-Go-Round was not entitled to the exemption. The court determined that petitioner had failed to establish both that its summer theater was an exempt purpose under the statute and that the use of the apartment buildings to house its employees was reasonably incidental to its primary purpose.

The Appellate Division reversed and granted the petition insofar as it sought the tax exemptions (104 AD3d 1294 [4th Dept 2013]). The Court found that petitioner was clearly organized exclusively for a tax exempt purpose — showcasing and encouraging appreciation of the performing arts, thereby advancing the education, as well as the moral and mental improvement of, the community. The Court further determined that petitioner had demonstrated that its use of the properties was reasonably incidental to its primary purpose, in that it helped to establish a community among its artists, and that respondents had failed to raise an issue of fact in opposition to defeat summary judgment. We granted respondents leave to appeal (22 NY3d 854 [2013]) and now affirm.

Under the Real Property Tax Law,

“[r]eal property owned by a corporation or association organized or conducted exclusively for religious, charitable, hospital, educational, or moral or mental improvement of men, women or children purposes . . . and used exclusively for carrying out thereupon one or more of such purposes . . . shall be exempt from taxation as provided in this section” (RPTL 420-a [1] [a]).

The burden of establishing that the property is entitled to a tax exemption rests with the taxpayer (see Matter of Lackawanna Community Dev. Corp. v Krakowski, 12 NY3d 578, 581 [2009]).

Here, it is clear that petitioner is organized exclusively for an exempt purpose, in that it is intended to promote appreciation for the arts/musical theater, thereby providing education to the community and advancing the moral or mental improvement of area residents. The summer stock theater does not have the same educational component as the youth theater, but is similarly geared toward promoting the arts. In addition, although the summer stock theater charges admission, that bare fact cannot nullify petitioner’s tax exempt purpose. We have previously observed that “[a] ‘commercial patina’ alone is not enough to defeat tax-exempt status” (Matter of Symphony Space v Tishelman, 60 NY2d 33, 38-39 [1983]). Merry-Go-Round asserts without contradiction that the theater generally either breaks even or operates at a loss. There is no indication that petitioner is organized for the purpose of making a profit and this limited commercial aspect does not preclude it from receiving a tax exemption.

We must then determine whether the property is being used exclusively for an exempt purpose.

“The test of entitlement to tax exemption under the used exclusively clause of the statute is whether the particular use is reasonably incidental to the primary or major purpose of the facility. Put differently, the determination of whether the property is used exclusively for the statutory purposes depends upon whether its primary use is in furtherance of the permitted purposes” (Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244, 250 [1992] [internal quotation marks, brackets and citations omitted]).

In a case comparable to this one, we held that a partial tax exemption was warranted for the portions of 10 apartment buildings that were owned by St. Luke’s Hospital and occupied by its staff and their families (see Matter of St. Luke’s Hosp. v Boyland, 12 NY2d 135 [1962]). We found that the use of the apartments was reasonably incident to the hospital’s major purpose, recognizing that it was customary for hospitals to provide such living arrangements and that some of its staff would have sought employment elsewhere if housing had not been made available (see St. Luke’s, 12 NY2d at 143). We further observed that tax exemptions had similarly been granted to colleges and universities for real property used to house faculty members (see St. Luke’s, 12 NY2d at 143-144, citing People ex rel. Thomas S. Clarkson Mem. Coll. of Tech. v Haggett, 300 NY 595 [1949]).

More recently, in Yeshivath, we addressed whether 31 acres of real property owned by a not-for-profit religious corporation and used for religious instruction during the summer months were exempt from taxation under RPTL 420-a. The property at issue included religious and educational facilities, housing accommodations and 10 acres of woodland, which the students used for hiking. There, we determined that the housing facilities provided to its faculty and staff, as well as to the students and their families, were “ ‘necessary and reasonably incidental’ to the primary purpose of’ the property and that, without them, the “primary purpose [ ] of providing rigorous religious and educational instruction at the yeshivah would be seriously undermined” (Yeshivath, 79 NY2d at 251).

Likewise, here, the primary use of the apartment buildings is in furtherance of Merry-Go-Round’s primary purpose. Petitioner established that the housing is used to attract talent that would otherwise look to other theaters for employment, that the living arrangement fosters a sense of community and that the staff spends a significant portion of its off-hours in furtherance of theater-related pursuits. In addition, similar to the situation presented by St. Luke’s, the record shows that petitioner would have difficulty recruiting qualified staff if it did not provide the housing, which would undermine its primary purpose. Although we have not previously addressed the provision of tax exempt housing in relation to an arts organization, the statute does not elevate one exempt purpose over another. Under these circumstances, the use of the property to provide staff housing is reasonably incidental to petitioner’s primary purpose of encouraging appreciation of the arts through theater. Petitioner has demonstrated that it is entitled to an RPTL 420-a tax exemption and respondent failed to raise a material issue of fact warranting a trial.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Judges Graffeo, Read, Smith, Pigott, Rivera and AbdusSalaam concur.

Order affirmed, with costs.

       The certificate of incorporation was amended in 1985 to change the corporate name to the current Merry-Go-Round Playhouse, Inc.


text:
    [23 NE3d 988, 998 NYS2d 720]
    Frank Paterno, Appellant, v Laser Spine Institute et al., Respondents.
    Argued October 15, 2014;
    decided November 20, 2014

      POINTS OF COUNSEL

      Law Offices of Timothy G. Griffin, Bronxville (Timothy G. Griffin of counsel), for appellant.
    There were sufficient contacts and purposeful activity engaged in by defendants within the State of New York to enable the court to exercise jurisdiction.
      (Kreutter v McFadden Oil Corp., 71 NY2d 460; George Reiner & Co. v Schwartz, 41 NY2d 648; Parke-Bernet Galleries v Franklyn, 26 NY2d 13; Fischbarg v Doucet, 9 NY3d 375; McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377; Multi-Modal Intl. v Anglia N. Am., 227 AD2d 600; Catauro v Goldome Bank For Sav., 189 AD2d 747; Farkas v Farkas, 36 AD3d 852; Grimaldi v Guinn, 72 AD3d 37; McGowan v Smith, 52 NY2d 268.)

      DeCorato Cohen Sheehan & Federico, LLP, New York City (Joshua R. Cohen and Amanda L. Tate of counsel), for respondents.
    I. Respondents did not transact business in New York. (Ingraham v Carroll, 90 NY2d 592; Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433; Daniel B. Katz & Assoc. Corp. v Midland Rushmore, LLC, 90 AD3d 977; Skrodzki v Marcello, 810 F Supp 2d 501; Maranga v Vira, 386 F Supp 2d 299; Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793; O’Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199; Hermann v Sharon Hosp., 135 AD2d 682; Etra v Matta, 61 NY2d 455; Davidson Extrusions v Touche Ross & Co., 131 AD2d 421.) II. The situs of the injury is Florida — appellant’s New York residency alone is not sufficient to establish jurisdiction. (McGowan v Smith, 52 NY2d 268; Fantis Foods v Standard Importing Co., 49 NY2d 317; Polansky v Gelrod, 20 AD3d 663.) III. Respondents were never properly served. (Espy v Giorlando, 85 AD2d 652, 56 NY2d 640; Matter of DeGroat v Kralik, 224 AD2d 688; Matter of Shea v Kralik, 220 AD2d 750; Broman v Stern, 172 AD2d 475.)
   OPINION OF THE COURT

Rivera, J.

Plaintiff Frank Paterno appeals from the dismissal for lack of personal jurisdiction of his medical malpractice action against non-domiciliary defendants Laser Spine Institute (LSI) and various LSI professionals. We conclude that defendants’ contacts with New York are insufficient to confer long-arm jurisdiction under CPLR 302 (a) (1). We further reject plaintiffs alternative basis for personal jurisdiction under CPLR 302 (a) (3) because he suffered his injuries outside the State. Therefore, we affirm.

I

In May 2008, plaintiff was suffering from severe back pain. While on the home page of a well-known Internet service provider plaintiff discovered an advertisement for LSI, a surgical facility specializing in spine surgery, with its home facility and principal place of business in Tampa, Florida. Plaintiff clicked on the LSI advertisement, and viewed a five-minute video presentation of a testimonial from a former LSI patient and professional golfer, extolling LSI’s medical services. The advertisement appeared to hold out the promise of relief for plaintiff’s back problems so he communicated with LSI by telephone and Internet to inquire about possible surgical procedures to alleviate his pain. These would be the first of plaintiffs several contacts with LSI, which led to his eventual decision to undergo surgical procedures by LSI medical professionals in Florida. Those surgeries are the underlying basis for plaintiffs action against defendants.

After his initial inquiries in May 2008, plaintiff sought a medical assessment of his condition by LSI, and sent to LSI’s Florida facility certain magnetic resonance imaging (MRI) films of his back. LSI then sent plaintiff an email letter, describing preliminary surgical treatment recommendations and orders, based on its doctors’ professional evaluation of the MRI. The letter made clear the recommendations and suggested procedures were not final, and that plaintiff would be “evaluated by [LSI] surgeons upon arrival so therefore these orders will be subject to change by the surgeon while in consultation.”

According to plaintiff, on May 30, 2008, the same day that he received the letter, LSI informed him that there had been a cancellation, and plaintiff could take the open spot and have the surgery performed at a significant discount due to the short notice. LSI offered a June 9, 2008 surgery date.

In preparation for his surgery plaintiff had several additional email contacts with LSI from June 2nd through June 6th. These communications were intended to address registration and payment issues, and to generally facilitate plaintiff’s arrival at LSI’s Florida facility. For example, plaintiff sent his completed registration and private insurance forms, and engaged in correspondence with LSI related to payment arrangements to be made upon his arrival in Florida. LSI sent plaintiff a list of hotels in Tampa that offered discounted rates to LSI patients.

Apart from these administrative matters, plaintiff forwarded to LSI his blood work, which had been completed in New York. He also attempted to schedule a conference call between his New York-based doctor, Dr. Dimatteo, and LSI defendant Dr. Perry. After plaintiff was unable to reach Dr. Perry, an LSI doctor called Dr. Dimatteo the following day and briefly discussed plaintiffs scheduled surgery.

On June 6th, plaintiff traveled from New York to Tampa, Florida, and on June 9th, he underwent surgery at the LSI facility, performed by defendant LSI surgeon Dr. Kevin Scott. Plaintiff experienced extreme pain following the surgery and complained to LSI staff who advised him that this was due to the procedure and could last for two weeks. Plaintiff underwent a second surgical procedure at LSI on June 11th, this time performed by defendant LSI surgeon Dr. Vernon Morris. He again experienced severe pain after the surgery.

For two weeks following his return to New York on June 12th, plaintiff contacted the LSI physicians on a daily basis to discuss his medical status, and to complain about his postoperative pain. LSI doctors and staff addressed his request for pain medication by calling prescriptions into local pharmacies in plaintiffs home city, which he then filled.

In mid-July, plaintiff was still in severe pain and went to New York-based physicians to discuss his medical status and the results of the out-of-state surgeries. He underwent an MRI, which according to one of his New York-based doctors revealed the same disc herniations the doctor had observed prior to the surgery. In response to plaintiffs request for consultation with LSI, LSI physicians held a conference call with this New York-based doctor to discuss plaintiffs condition.

After further telephone and email communications with LSI, and after plaintiff demanded that LSI address his condition, plaintiff returned to Florida on August 6th where he underwent a third surgery, this time performed by defendant LSI surgeon Dr. Craig Wolff. As before, plaintiff was in severe pain following the surgery, and as before only days after the procedure he returned to his home in New York State.

For approximately the next three months, until October 31, 2008, plaintiff claims to have communicated daily with LSI staff via text messages, emails and telephone calls. He also spoke directly by telephone with defendant Dr. Wolff, regarding his back pain and headaches. Dr. Wolff discussed ways to alleviate the pain, and ordered an MRI which was performed in New York. Dr. Wolff also spoke by telephone with another of plaintiffs New York-based doctors concerning plaintiffs condition. When plaintiffs condition did not improve, Dr. Wolff told him he could return to LSI for another surgical procedure to address what appeared to be fluid accumulation from a spinal dura leak. LSI offered to fly plaintiff to Florida at LSI’s expense. After several consultations with New York-based doctors, plaintiff underwent another surgery, but this time in New York, performed by a New York-based doctor not connected with LSI.

Plaintiff thereafter commenced this medical malpractice action in New York against LSI and several LSI doctors, including the surgeons who operated on him. Defendants moved to dismiss for lack of personal jurisdiction pursuant to CPLR 3211 (a) (8), and Supreme Court granted the motion.

The Appellate Division affirmed in a split decision, concluding that the court lacked personal jurisdiction over LSI and the doctors because they were not transacting business in New York within the meaning of CPLR 302 (a) (1), and there was no personal jurisdiction under CPLR 302 (a) (3) because plaintiffs injury did not occur in New York (112 AD3d 34 [2013]). The two dissenting justices concluded that the contacts demonstrated the “purposeful creation of a continuing relationship” sufficient to establish jurisdiction over defendants under CPLR 302 (a) (1) (id. at 56).

II

Plaintiff argues that New York courts have personal jurisdiction over defendants under CPLR 302 (a) (1), based on their purposeful activity, as demonstrated by LSI’s active solicitation of plaintiff to undergo surgery, and defendants’ pre- and post-surgery contacts related to plaintiffs medical treatment, including emails, letters and the exchange of documents. Plaintiff also contends New York courts have personal jurisdiction over defendants under CPLR 302 (a) (3) because defendants committed a tortious act outside New York State which caused injury to him within New York.

Defendants argue that their contacts with plaintiff merely responded to his inquiries or constituted follow-up to the surgical procedures, and do not constitute transacting business in New York State within the meaning of the CPLR so as to confer personal jurisdiction over the defendants. Furthermore, they contend that because plaintiffs injuries occurred in Florida, his reliance on CPLR 302 (a) (3) as an alternative basis of jurisdiction is without merit. They also argue that plaintiff failed to effectuate proper service of process over all the LSI defendants.

CPLR 302 (a) (1) provides in relevant part:

“(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent:
“1. transacts any business within the state or contracts anywhere to supply goods or services in the state . . . .” (CPLR 302 [a] [1].)

Whether a non-domiciliary is transacting business within the meaning of CPLR 302 (a) (1) is a fact based determination, and requires a finding that the non-domiciliary’s activities were purposeful and established “a substantial relationship between the transaction and the claim asserted” (Fischbarg v Doucet, 9 NY3d 375, 380 [2007], citing Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71 [2006]). Purposeful activities are volitional acts by which the non-domiciliary “ ‘avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws’ ” (Fischbarg., 9 NY3d at 380, quoting McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377, 382 [1967], and citing Ford v Unity Hosp., 32 NY2d 464, 471 [1973]). More than limited contacts are required for purposeful activities sufficient to establish that the non-domiciliary transacted business in New York (see e.g. Ehrenfeld v Bin Mahfouz, 9 NY3d 501, 508 [2007]).

The lack of an in-state physical presence is not dispositive of the question whether a non-domiciliary is transacting business in New York. Indeed, “[w]e have in the past recognized CPLR 302 (a) (1) long-arm jurisdiction over commercial actors . . . using electronic and telephonic means to project themselves into New York to conduct business transactions” (Deutsche Bank Sec., Inc., 7 NY3d at 71 [holding that CPLR 302 (a) (1) conferred long-arm jurisdiction over out-of-state institutional investor who called plaintiff, a New York securities firm, to make a trade, and the suit arose from that transaction], citing Parke-Bernet Galleries v Franklyn, 26 NY2d 13 [1970], and Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574 [1980]; see Fischbarg v Doucet, 9 NY3d 375 [2007] [California defendants “transacted business” where they formed an attorney-client relationship with plaintiff attorney in New York through numerous telephone calls, faxes, mail contacts, and emails]; Parke-Bernet Galleries, 26 NY2d at 17-18 [California defendant who actively participated in live auction held in New York via telephone subject to jurisdiction under CPLR 302 (a) (1) in an action arising out of that auction]).

Regardless of whether by bricks and mortar structures, by conduct of individual actors, or by technological methods that permit business transactions and communications without the physical crossing of borders, a non-domiciliary transacts business when “ ‘on his [or her] own initiative . . . [the non-domiciliary] projects] himself [or herself]’ into this state to engage in a ‘sustained and substantial transaction of business’ ” (Fischbarg, 9 NY3d at 382, quoting Parke-Bernet Galleries, 26 NY2d at 18). Thus, where the non-domiciliary seeks out and initiates contact with New York, solicits business in New York, and establishes a continuing relationship, a non-domiciliary can be said to transact business within the meaning of CPLR 302 (a) (1) (Fischbarg, 9 NY3d at 381).

Plaintiff contends that the totality of defendants’ contacts establish that it conducted business in New York through its solicitation and several communications related to LSI’s medical treatment of plaintiff. We disagree. In order to satisfy “ ‘ [t]he overriding criterion’ necessary to establish a transaction of business” within the meaning of CPLR 302 (a) (1), a non-domiciliary must commit an act by which it “purposefully avails itself of the privilege of conducting activities within [New York]” (see Ehrenfeld, 9 NY3d at 508, citing McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377, 382 [1967], and Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71 [2006]). Plaintiff here admits that he was the party who sought out and initiated contact with defendants after viewing LSI’s website. According to plaintiff, that website informed viewers about LSI medical services and its professional staff. However, he has not asserted that it permitted direct interaction for online registration, or that it allowed for online purchase of LSI services (see Halas v Dick’s Sporting Goods, 105 AD3d 1411, 1412 [4th Dept 2013]; Murphy v Cirrus Design Corp., 38 Misc 3d 1227[A], 2013 NY Slip Op 50293[U] [Sup Ct, Erie County 2013]; Citigroup Inc. v City Holding Co., 97 F Supp 2d 549, 565 [SD NY 2000]). Passive websites, such as the LSI website, which merely impart information without permitting a business transaction, are generally insufficient to establish personal jurisdiction (Grimaldi v Guinn, 72 AD3d 37, 48 [2d Dept 2010]; see Benifits by Design Corp. v Contractor Mgt. Sevs., LLC, 75 AD3d 826, 829 [3d Dept 2010]; American Homecare Fedn., Inc. v Paragon Scientific Corp., 27 F Supp 2d 109, 114 [D Conn 1998]; Edberg v Neogen Corp., 17 F Supp 2d 104, 114 [D Conn 1998]; Boris v Bock Water Heaters, 3 Misc 3d 835, 840 [Sup Ct, Suffolk County 2004]; see also Morilla v Laser Spine Inst., LLC, 2010 WL 3258312, *5, 2010 US Dist LEXIS 83608, *15 [D NJ, Aug. 16, 2010, No. 2:10-CV-01882 (WHW)] [finding LSI website containing “only information and a generic contact information input form” passive and insufficient to establish personal jurisdiction]). Thus, as plaintiff concedes, the mere fact that he viewed LSI’s website in New York is insufficient to establish CPLR 302 (a) (1) personal jurisdiction over defendants.

Plaintiff argues, however, that LSI did more than just post an online advertisement. He alleges that over months, there were several telephone calls and email communications between plaintiff and LSI representatives, that he sent MRIs and blood work to LSI, and that LSI sent prescriptions to his New York-based pharmacies. To the extent plaintiff argues that by sheer volume of contacts, defendants are subject to personal jurisdiction in New York, we disagree. As we have stated it is not the quantity but the quality of the contacts that matters under our long-arm jurisdiction analysis (Licci v Lebanese Can. Bank, SAL, 20 NY3d 327, 338 [2012]; see also Fischbarg, 9 NY3d at 380).

Turning to the content and “quality” of defendants’ contacts with plaintiff, it is apparent that they were responsive in nature, and not the type of interactions that demonstrate the purposeful availment necessary to confer personal jurisdiction over these out-of-state defendants. After plaintiff initially sought out LSI, LSI responded with information designed to assist plaintiff in deciding whether to arrange for LSI medical services in Florida. For example, after plaintiff sent his MRI for evaluation, LSI sent him a letter setting forth a preliminary evaluation and treatment recommendations.

Once plaintiff confirmed his interest, and the June 9, 2008 surgery date was set, he fully engaged with defendants in order to ensure that all pre-surgical matters were completed. Plaintiff filled out and returned the insurance forms and attempted to negotiate payment arrangements; he arranged for his travel and lodging; he completed and sent LSI the necessary registration forms; he ensured that his blood work was sent to LSI before his arrival in Florida; and he requested that an LSI doctor speak with his New York-based doctors concerning the impending surgery at the LSI facility. As part of the preparation for plaintiffs arrival, these communications served the convenience of plaintiff (see Milliken v Holst, 205 AD2d 508, 510 [2d Dept 1994]), and fail to establish that defendants “avail[ed] [themselves] of the privilege of conducting activities within the forum State” (see Fischbarg, 9 NY3d at 380, quoting McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377, 382 [1967], and citing Ford v Unity Hosp., 32 NY2d 464, 471 [1973]).

Plaintiff urges us to consider the contacts between plaintiff and LSI once he returned to New York on June 12th, after the first two Florida surgeries. Our long-arm statute requires that the cause of action arise from the non-domiciliary’s actions that constitute transaction of business. “[T]here [must be] a substantial relationship between the transaction and the claim asserted” (Fischbarg, 9 NY3d at 380). Here, plaintiffs claim is based on the June and August surgeries in Florida. Contacts after this date cannot be the basis to establish defendant’s relationship with New York because they do not serve as the basis for the underlying medical malpractice claim (see Harlow v Children’s Hosp., 432 F3d 50, 62 [1st Cir 2005] [in most cases, where the cause of action must arise from the contacts, contacts after the cause of action arises will be irrelevant]). Further, defendants’ contacts with New York at the behest of the plaintiff subsequent to the first two Florida surgeries but before the third cannot be used to demonstrate defendants actively projected themselves into New York (see Skrodzki v Marcello, 810 F Supp 2d 501, 510, 512 [ED NY 2011] [defendant’s contacts with forum state arising from initial communication with plaintiff irrelevant for CPLR 302 (a) (1) jurisdictional analysis], citing Grimaldi, 72 AD3d at 51, and Zibiz Corp. v FCN Tech. Solutions, 777 F Supp 2d 408, 421 [ED NY 2011]). In any event, even considering the defendants’ contacts following the surgeries, they are similar in kind to the pre-surgery contacts and for the same reasons do not constitute the transaction of business required by CPLR 302 (a) (1).

It is no longer unusual or difficult, as it may once have been, to travel across state lines in order to obtain health care from an out-of-state provider. It is also not unusual to expect follow-up for out-of-state treatment. Given this reality, to find defendants’ conduct here constitutes transacting business within the meaning of CPLR 302 (a) (1), based on contacts before and after the surgeries, would set a precedent for almost limitless jurisdiction over out-of-state medical providers in future cases. We do not interpret the expanse of CPLR 302 (a) (1) to be boundless in application.

The decision in Etra v Matta (61 NY2d 455 [1984]), supports our conclusion here. In Etra the Court held that CPLR 302 (a) (1) did not confer personal jurisdiction over an out-of-state doctor in a medical malpractice action arising from that doctor’s treatment of plaintiffs’ decedent. A Massachusetts doctor was solicited in Massachusetts by a New York patient and treated the patient in Massachusetts, but subsequently sent an experimental drug to New York and acted as a consultant to a New York doctor. We held that those contacts were insufficient to constitute a transaction of business for purposes of CPLR 302 (a) (1).

The Appellate Division has also declined to extend long-arm jurisdiction under CPLR 302 (a) (1) to cover out-of-state medical centers where the contacts were limited or the injury occurred outside New York. In O’Brien v Hackensack Univ. Med. Ctr. (305 AD2d 199 [1st Dept 2003]), a New Jersey hospital treated a New York resident in New Jersey, referred him to a New York hospital, prescribed him chemotherapy to be administered in New York, and regularly communicated with his New York doctors. According to the First Department, these “sporadic” contacts with New York were insufficient under CPLR 302 (a) (1) because they were “not carried out from a permanent location in the State or by [the hospital’s] agents or employees in the State.” (Id. at 201.) In Hermann v Sharon Hosp. (135 AD2d 682 [2d Dept 1987]), the Second Department held that CPLR 302 (a) (1) did not confer personal jurisdiction over a Connecticut hospital in a New York plaintiffs medical malpractice action arising from injuries sustained in the course of treatment at the hospital. The court reasoned that plaintiff had not shown his treatment arose from any transaction of business in New York where the hospital had no offices in New York and conducted its health-care activities solely in Connecticut, despite the fact that many of its doctors were licensed to practice in New York and many of its patients were New York residents.

Plaintiff argues that LSI has been found subject to personal jurisdiction by other courts, and urges us to follow suit. He relies on Henderson v Laser Spine Inst. LLC (815 F Supp 2d 353 [D Me 2011]) and Bond v Laser Spine Inst., LLC (2010 WL 3212480, 2010 US Dist LEXIS 82736 [ED Pa, Aug. 11, 2010, No. 10-1086]). These cases are distinguishable because they both involve more extensive contacts and personal jurisdiction statutes that are coextensive with the Federal Due Process Clause. In Henderson, unlike here, the court found LSI’s website semi-interactive and nationwide print advertising contributed to the plaintiffs decision to contact LSI. In Bond, LSI had a Philadelphia “consult” office and took a more active role in that plaintiff’s post-surgical treatment. Moreover, these cases were decided based on statutes that, unlike CPLR 302 (a), permit an exercise of personal jurisdiction to the full extent of the Federal Due Process Clause (see Kreutter v McFadden Oil Corp., 71 NY2d 460, 471 [1988] [New York’s long-arm statute “does not confer jurisdiction in every case where it is constitutionally permissible”]; cf. Morilla, 2010 WL 3258312, *6, 2010 US Dist LEXIS 83608, *16-17 [finding alleged contacts based solely on LSI’s passive website were insufficient to establish personal jurisdiction under the Federal Due Process Clause]).

We also reject plaintiffs alternative basis for personal jurisdiction asserted under CPLR 302 (a) (3). This section provides that New York courts have personal jurisdiction over a non-domiciliary who “commits a tortious act without the state causing injury to person or property within the state” (CPLR 302 [a] [3]). We disagree with plaintiff that the allegations in his complaint establish that his injury occurred in New York. Rather, the situs of the injury in medical malpractice cases is the location of the original event which caused the injury, and not where a party experiences the consequences of such injury (Hermann, 135 AD2d at 683, citing McGowan v Smith, 52 NY2d 268, 273-274 [1981], and Kramer v Hotel Los Monteros S. A., 57 AD2d 756 [1st Dept 1977]). Here, the injury occurred in Tampa, Florida, where plaintiff underwent the surgeries that are the basis for his medical malpractice claim. Therefore, CPLR 302 (a) (3) cannot be a basis for personal jurisdiction over defendants.

Ill

Our determination that New York lacks personal jurisdiction over defendants makes it unnecessary for us to consider whether plaintiff effectuated service of process over defendants.

Accordingly, the Appellate Division order should be affirmed, with costs.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Abdus-Salaam concur.

Order affirmed, with costs.