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A defendant’s maintenance of a Web site, although accessible in New York, is insufficient to meet the forseeability requirement under the New York jurisdiction statute, the U.S. District Court for the Southern District of New York held Sept. 29. Stewart v. Vista Point Verlag, No. 99 Civ. 4225 (LAP), (S.D.N.Y. 9/29/00). The plaintiff, Jennifer Stewart, is a performance artist who alleges that she is world renowned for appearing as the Statue of Liberty. She has appeared on the cover of many newspapers and magazines located or sold in New York and has been the subject of many feature articles in these publications. She has developed a lucrative full-time career posing as the Statue of Liberty, with people paying her a licensing fee to reuse her image. The plaintiff alleged, inter alia, that Vista Point, a firm located in Germany whose primary business is the production and sale of travel guides targeted for use by German-speaking individuals in the German-speaking market, impermissibly used a photograph of her dressed as the Statue of Liberty on the cover and first page of one of its German-language guidebooks titled “New York City Guide & Plan” and on its Web site. She sought compensatory damages of $600,000, punitive damages, attorneys’ fees and costs, and an injunction against defendants’ use of her photograph or likeness. Vista Point filed a motion to dismiss, arguing, inter alia, that the court lacked personal and subject matter jurisdiction and that plaintiff failed to state a claim upon which relief can be granted. The plaintiff alleged that Vista Point has several contacts with New York state, including its maintenance of a Web site that can be accessed from New York and its offering for sale of travel guides through Web sites that can be accessed in New York. The court wrote, “Passing on whether Vista Point has committed a tortious act causing an injury within the state, plaintiff has not pleaded facts sufficient to indicate that Vista Point expected or should have reasonably expected its acts to have consequences in the state.” Specifically addressing the Internet issues, the court found that Vista Point’s maintenance of a Web site, although accessible to New York residences, was not sufficient to satisfy the foreseeability requirement under � 302(a)(3)(ii). “This site does not target New York residents,” the court wrote. “Indeed the site, along with the allegedly infringing tour guide, is written in German.” The court granted Vista Point’s motion to dismiss and denied the plaintiff’s cross-motion for discovery.

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