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A New Jersey surgical practice that employed drivers to bring New York patients to its offices is subject to suit here for malpractice claims under New York’s “long-arm” statute, a New York state court judge in the Bronx has ruled. Even though the alleged negligent treatment — improperly administered steroid injections — occurred in New Jersey, Justice Paul A. Victor last week denied co-defendant Gregory Surgical Services’ motion to dismiss Ursulina Reyes’ malpractice complaint for lack of personal jurisdiction over the New Jersey company. In Reyes v. Sanchez-Pena, 023310/00, filed in Supreme Court, Bronx County, IA Part 24, Reyes claimed she suffers pain and weakness in her right shoulder, arm and hand as a result of the defendant doctors’ failure to perform certain diagnostic tests and negligently administered injections. Reyes was initially treated by Dr. Jose Sanchez-Pena in his Manhattan office, and then he referred her for treatment at the New Jersey offices of Gregory Surgical, a medical practice for which he served as president. Sanchez-Pena’s office arranged for Reyes to be driven from her home in New York to Gregory Surgical in New Jersey at least twice, her complaint said. TWO PROVISIONS Justice Victor agreed with Reyes’ argument that Gregory Surgical was subject to long-arm jurisdiction under two provisions of New York’s Civil Practice Law and Rules � 302: either (a)(1), which allows a New York court to exercise personal jurisdiction over any non-New York domiciliary that “transacts any business within the state …”; or (a)(3), which permits a New York court to exercise jurisdiction over any non-New York person or entity that “regularly does or solicits business … in the state.” Gregory Surgical Services argued that it was not “doing business” in New York because it had no offices in the state, nor did it derive income, have employees working on its behalf, advertise, or own any real property here. Justice Victor noted that for long-arm jurisdiction to exist under CPLR � 302(a)(3), the commission of the tortious act outside the state must cause injury to person or property within New York. The New York Court of Appeals in a 1997 opinion, Ingraham v. Carroll, 90 NY2d 592, left open the question whether the site of the injury necessarily corresponds to the site of the tort for purposes of long-arm jurisdiction, Justice Victor said. That opening allowed him to look past earlier Appellate Division rulings that interpreted � 302 (a)(3) as focusing on the imposition of the original injury in New York and not the resultant damage, he said. One of those cases, a 1977 ruling from the Appellate Division, 1st Department, in Kramer v. Hotel Los Monteros, 57 AD2d 756, warned that if jurisdiction was not limited to injuries originally incurred in New York, “a veritable Pandora’s box of litigation [would be opened] subjecting every conceivable prospective defendant involved in an accident with a New York domiciliary to defend actions brought against them in the State of New York.” Justice Victor said the 1966 judicial conference report on then-proposed amendments to � 302(a)(2) indicated the law was intended to protect and broaden the rights of injured New York residents and was to be liberally construed. No reference was made in the language of the statute to “original injury” or “resultant damage,” he noted. The judge said the intent of the law was not to extend jurisdiction over every prospective non-resident, but only those shown to have “such a substantial nexus to New York such that it would not be unfair to require them to defend a tort action in New York.” Gregory Surgical met that standard, he said. Its agents “actively entered the state and regularly ferried referral patients to its New Jersey facility — referrals from a physician who was a principal of, as well as acting as an agent of the defendant. It may be reasonably assumed that this free shuttle service served the obvious purpose of ‘soliciting’ business, since many of the referral patients might not have been willing to travel to defendant’s office if this perk was not provided.” That activity clearly qualified as a “persistent course of conduct in New York,” under CPLR � 302(a)(3)(i), Justice Victor said. Bruce G. Clark & Associates represented Reyes. Defense counsel included: New York’s Rochman, Platzer, Fallick & Sternheim, for Gregory Surgical Services; Slevin, Sold, Neubardt, Weisman, Samberg, Faillace & Mezzacappa of White Plains, N.Y., for Dr. Sanchez-Pena; and Kopff, Nardelli & Dopf of New York for Dr. Ladislav Habina.

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