SIMMONS v. GRIPPLE

Order, Supreme Court, New York County, entered April 7, 1970 unanimously modified on the law and the facts so as to dismiss the complaint against the individual defendant John Gripple, Jr., and otherwise affirmed, without costs and without disbursements. The complaint alleges that plaintiffs, residents of New York, were injured when the automobile in which they were riding was struck in the rear by a truck bearing a Pennsylvania registration, owned by the corporate defendant Wise Potato Chip Co., Inc., and operated by its employee Gripple. The plaintiffs' vehicle was registered in New York. Gripple resides in Pennsylvania. The accident occurred in Virginia. Process was served on both defendants in Pennsylvania pursuant to the provisions of CPLR 302. The facts fail to indicate that the individual defendant comes within the ambit of the pertinent provisions of the CPLR. Nothing has been shown to demonstrate that the cause of action arose out of the said defendant's activities within the State. (See Gelfand v. Tanner Motor Tours, 339 F.2d 317, 321-22; Bryant v. Finnish Nat. Airline, 22 A.D.2d 16, revd. on other grounds 15 N.Y.2d 426; Brunette Sunapee Corp. v. Zeolux Corp., 228 F. Supp. 805.) In the absence of some showing that the accident arose out of or was connected in some substantial way with Gripple's occasional trips made to New York, it is unreasonable to subject him to the personal jurisdiction of our courts. (See International Shoe Co. v. Washington, 326 U.S. 310, 317; McKee Elec. Co. v. Rauland-Borg Corp., 20 N.Y.2d 377.) In view of the foregoing disposition the appeal from the order entered June 5, 1970, denying defendant's application for reconsideration is dismissed as academic, without costs and without disbursements. Gripple's appeal from the order of June 25, 1970 denying his application for a stay of his examination before trial is also dismissed as academic, without costs and without disbursements since counsel at argument informed the court that the order had been complied with.

Concur — Markewich, J.P., Nunez, Steuer and Tilzer, JJ.