You May Want to Keep That Opinion To Yourself - Commercial Division Considers Whether a Legal Opinion Letter Triggers Personal Jurisdiction Under the CPLR

by Sheppard Mullin Richter & Hampton LLP
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[author: Sarah Aberg]

In Burt v. Secure Telemedicine, LLC, Index No. 651234/12 (N.Y. Comm. Div., Sept. 14, 2012), the Commercial Division (Schweitzer, J.) reconfirmed the need for specific allegations of personal contact with the state of New York in order for plaintiffs to meet the personal jurisdiction pleading requirements under CPLR 302.

Burt, a doctor licensed to practice in New York and Virginia, was solicited by Telemedicine to perform services for Telemedicine in Virginia. Among the solicitation materials was an opinion letter prepared by a Florida attorney, Dale Sisco, stating that Telemedicine’s practices were in accordance with federal and state rules and regulations.

Ultimately, the Virginia Medical Board and New York Department of Health rejected Sisco’s opinion, and Burt was publicly censured and his misconduct reported to the National Practitioner Data Bank and the Federation of State Medical Boards. Burt sued several parties, including Sisco, seeking damages for fraud, misrepresentation, unfair and deceptive trade practices, and breach of contract. Sisco moved to dismiss the action for lack of personal jurisdiction.

Under CPLR 302, the court may exercise personal jurisdiction “over any non-domiciliary who in person or through an agent transacts any business within the state or contracts anywhere to supply goods or services in the state; or commits a tortious act within the state; or commits a tortious act without the state causing injury to person or property within the state if he should reasonably have expected the act to have consequences in the state.” Burt’s complaint alleged only that Sisco was a Florida-licensed attorney retained by Telemedicine, and that Sisco prepared the legal opinion letter included in Telemedicine’s solicitation materials. In granting Sisco’s motion, the Court found that Burt’s minimal allegations against Sisco failed to establish “the essential requirements of CPLR 302.”

In so finding, Justice Schweitzer specifically noted that Burt did not allege that the solicitation materials were sent to him in New York. However, the Court did not address whether sending the materials to Burt in New York would have been sufficient contact to trigger jurisdiction under CPLR 302, leaving open the question whether receipt of an opinion letter in New York would be sufficient contact to assert jurisdiction over the opinion’s author.

 

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