Kim v. Dvorak

230 A.D.2d 286, 658 N.Y.S.2d 502, 1997 N.Y. App. Div. LEXIS 5576
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 22, 1997
StatusPublished
Cited by12 cases

This text of 230 A.D.2d 286 (Kim v. Dvorak) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kim v. Dvorak, 230 A.D.2d 286, 658 N.Y.S.2d 502, 1997 N.Y. App. Div. LEXIS 5576 (N.Y. Ct. App. 1997).

Opinion

OPINION OF THE COURT

Peters, J.

On November 30, 1995 at Stratton Veterans Administration Medical Center (hereinafter the V.A.) in the City of Albany, plaintiff performed a compensation / pension interview and examination of defendant Earl Morrow, a World War II veteran and former prisoner of war (hereinafter POW). Morrow contends that unlike all of his previous experiences, his wife was not initially permitted to participate. During the course of the interview, due to the problems he had in answering questions regarding his medical care, he had to leave the room to [288]*288ask his wife specific information. After providing him with details about certain information that he previously had no difficulty recalling and after noticing his obviously agitated state, Morrow’s wife recounts that she became quite concerned. When Morrow returned to the interview, his wife approached V.A. personnel and voiced her concern about the conduct of the interviewer and her preclusion from the interview. After an initial protest, plaintiff allowed her to be present.

Both Morrow and his wife contend that plaintiff became increasingly angry when Morrow could not recall specifics of his medical history despite the fact that his complete medical file was in front of plaintiff. Upon the assessment that the information provided was not pertinent to the questions posed, the Morrows contend that plaintiff became increasingly agitated, spoke in a very loud voice and slammed the desk with his fists.

Deeply disturbed with plaintiff’s conduct, the Morrows immediately inquired of various V.A. personnel as to how they could lodge a complaint and wrote to Lawrence Flesh, the Acting Director of the V.A. Upon receiving a brief written response which simply apologized for any "misunderstandings”, Morrow remained dissatisfied and wrote to Flesh again. Upon receiving no secondary response, Morrow ultimately discussed this matter with his stepdaughter, defendant Ramona Dvorak, a physician with a Master’s degree in public health and a member of the faculty at Harvard Medical School.

The record reveals that Dvorak regularly participated in her parents’ medical care. Offering to help once again, Dvorak requested copies of the letters that her stepfather had already written, advising that she would follow up and see whether she could get a response. Without providing copies to her parents, Dvorak wrote four separate letters, all utilizing Harvard Medical School letterhead,1 detailing her distress with the way petitioner treated her parents. She wrote that her stepfather had sent a "vividly descriptive and poignantly personal account of [the] visit * * * [wherein] he recounts his traumatic and valiant WWII experiences of treacherous air missions, close encounters with death and destruction and of surviving as a POW”. Describing Morrow as a calm man under the most [289]*289adverse conditions, Dvorak recounted her parents’ experience with plaintiff and then concluded that they were "subjected to * * * a threatening dehumanizing and brutal interrogation paralleled only by the torture [Morrow] agonized at the hands of his captures [sic] in NAZI Germany”. Contending that plaintiff’s treatment of her father was "deplorable”, exemplifying "arrogant rudeness, belligerence and reproachful condemnation”, she opined that, "[a]t the very least, he should not be practicing in any capacity in this institution or with POWs who may well be particularly vulnerable to these types of cruel and combative tactics”.

Dvorak further noted that she teaches the course on the doctor-patient relationship at Harvard Medical School where medical students learn that the relationship between the provider and the patient is paramount. She contended that if plaintiff could not adequately elicit the required information from Morrow, he should have sought different means other than "browbeating” or the use of "emotional and physical intimidation”. Dvorak typically ended these letters seeking a more adequate response and a further investigation into the matter, with all correspondence to be sent to her home address in Brookline, Massachusetts.

After plaintiff received copies of these letters, he commenced this action for libel, slander, intentional interference with contractual relationship, intentional infliction of emotional distress and interference with prospective economic advantage. Morrow and Dvorak (hereinafter collectively referred to as defendants) moved for dismissal of the complaint due to its insufficiency and for want of personal jurisdiction or, in the alternative, for summary judgment. They further sought sanctions pursuant to CPLR 8303-a. Supreme Court found personal jurisdiction over Dvorak2 and triable issues of fact on the defamation causes of action. While a dismissal of the cause of action pleading interference with contractual relationship was granted, the causes of action alleging an interference with prospective economic advantage and intentional infliction of emotional distress remained. Supreme Court also denied defendants’ motion for sanctions. Defendants now appeal.

Since the gravamen of this complaint is premised upon acts of Dvorak, we first address whether New York courts may exercise personal jurisdiction over this long-time Massachusetts [290]*290resident. While Dvorak contended that she derives no income from services performed in New York, transacts no business here and notes that all of the activities complained of took place in Massachusetts, Supreme Court determined that she "engaged in a systematic course of doing business by acting as an advocate for [Morrow], who was and still is seeking patient care through the State’s V.A. system”. Finding a nexus between Dvorak’s oral and written communications and the defamation alleged by plaintiff, it determined that the jurisdictional requisites were met. We disagree.

Similar to Talbot v Johnson Newspaper Corp. (123 AD2d 147, 149, affd 71 NY2d 827), "this is one of the rare tort cases in which personal jurisdiction is asserted under CPLR 302 (a) (1); ordinarily, such jurisdiction is asserted in contract actions”. One of the articulated reasons for excluding defamation claims pursuant to such section was an intent to " 'avoid unnecessary inhibitions on freedom of speech or the press. These important civil liberties are entitled to special protections lest procedural burdens shackle them’ ” (Legros v Irving, 38 AD2d 53, 55, appeal dismissed 30 NY2d 653, quoting 1 Weinstein-Korn-Miller, NY Civ Prac 302.11). Unlike Supreme Court, we find that plaintiff has failed to allege sufficient evidence demonstrating that Dvorak engaged in any form of " 'purposeful [business] activities’ ” (Talbot v Johnson Newspaper Corp., 71 NY2d 827, 829, supra, quoting McGowan v Smith, 52 NY2d 268, 272) within this State to justify subjecting her to personal jurisdiction in our courts.

Notwithstanding the use of Harvard Medical School stationery,3 Dvorak’s correspondence clearly expressed her personal dissatisfaction with the health care rendered to Morrow based upon the information that her parents supplied to her. To contend that her pursuit of such complaints through professional organizations or support groups would constitute a transaction of business would, in our opinion, unjustifiably extend the intendment of the Legislature to allow, in limited circumstances, the reach of this State’s jurisdiction beyond its borders (see, Talbot v Johnson Newspaper Corp., 71 NY2d 827,

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Bluebook (online)
230 A.D.2d 286, 658 N.Y.S.2d 502, 1997 N.Y. App. Div. LEXIS 5576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kim-v-dvorak-nyappdiv-1997.