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Oliff v. Kiamesha Concord Inc.

Decided: June 16, 1969.

HELEN OLIFF, AN INFANT, BY HER GUARDIAN AD LITEM, EDWARD OLIFF, AND EDWARD OLIFF, INDIVIDUALLY, PLAINTIFF,
v.
KIAMESHA CONCORD, INC., A NEW YORK CORPORATION, DEFENDANT



Stamler, Joseph H., J.s.c.

Stamler

Plaintiffs bring this negligence action with service having been made by mail pursuant to R.R. 4:4-4(d) upon defendant at its New York City office located at 257 Park Avenue South. Defendant moves to set aside the service as constitutionally impermissible.

On or about February 22, 1967 the infant plaintiff and her parents were paying guests at the resort hotel "The Concord," owned and operated by defendant Kiamesha Concord, Inc., and located at Kiamesha Lake, Sullivan County, New York. The child through her guardian ad litem alleges injuries resulting from defendant's negligence and sues to recover damages. Her father claims for medical expenses and loss of services.

Defendant argues that it is a New York corporation, all of its officers, directors and stockholders reside in the State of New York, the corporation owns no real estate or personal property in the State of New Jersey, employs no travel agents in this State, has no office for the transaction of business and transacts no business, and makes no contracts within our State. Notwithstanding that advertisements are placed in the New York Times which is circulated throughout New Jersey, these advertisements do not list any specific travel agent or agency in this State as authorized representatives of "The Concord" or the corporation. In its brief and on oral argument defendant acknowledges that brochures are sent directly "if requested by New Jersey residents," which brochures containing reservation forms are then mailed from

New York State into New Jersey. It was subsequently admitted that once a guest has registered at the hotel, communications, advertisements and seasonal solicitations are sent to the guest, who has become a permanent part of the mailing service of defendant, no request being necessary.

Additionally, defendant argues that the infant was treated on the day of the injury by a Sullivan County doctor and that she was confined for three days in a Sullivan County hospital. Defendant concludes with the statement that "the material and necessary witnesses on behalf of the defendant with respect to the alleged happening of the accident reside in New York State except for two witnesses who reside in Hartford, Connecticut."

Plaintiffs state that the parents of the infant first went to "The Concord" more than ten years ago, having made reservations as a result of an unsolicited brochure received in the mail at their home in Montclair and receiving a confirmation in the return mail. Thereafter on numerous occasions they continued to receive brochures, particularly for holiday occasions. As members of the B'nai B'rith, defendant's brochures were used to invite them to the District Three annual convention, a letter from the president of the association being incorporated in the printed material copyrighted by defendant. Defendant encourages New Jersey-domiciled travel agents to imprint the agency's name, address and telephone number on the copyrighted brochures and suggests that prospective guests "call your travel agent." New Jersey travel agents who make reservations receive a commission of 10% of the cost of the accommodations after the departure of the guests.

Admitting that the infant was hospitalized in Monticello, New York, for three days, plaintiffs argue longer confinement was necessary at Mountainside Hospital in Montclair and that the treating surgeon and physician practiced locally.

R.R. 4:4-4(d) permits the extra-territorial service of process subject to due process of law. The guidelines for the use of our "long-arm" rule are explained in International

Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945) where the Court said:

"* * * due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of ...


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