
    Blanche Etra et al., as Executors of Harry Etra, Deceased, Plaintiffs, v Raymond Matta et al., Defendants. Raymond Matta, Third-Party Plaintiff-Appellant, v Bernard Lown, Third-Party Defendant-Respondent.
    Argued February 13, 1984;
    decided March 29, 1984
    
      POINTS OF COUNSEL
    
      Frederick N. Gaffney and Ann R. Goodwin for third-party plaintiff-appellant.
    Dr. Down’s providing to Mr. Etra a drug whose properties were known exclusively to him, and which knowledge was not otherwise available to medical practitioners, made Mr. Etra Dr. Down’s patient, and his continued interstate practice of medicine could not, by definition, cease. (International Shoe Co. v Washington, 326 US 310; McGee v International Life Ins. Co., 355 US 220; Hanson v Denckla, 357 US 235; Parke-Bernet Galleries v Franklyn, 26 NY2d 13; Wright v Yackley, 459 F2d 287; McGee v Riekhof, 442 F Supp 1276.)
    
      Steven J. Ahmuty, Jr., for third-party defendant-respondent.
    D The court below correctly concluded that as a matter of law Dr. Lown had not engaged in purposeful activity in the State as to the matter in suit. (Longines-Wittnauer Co. v Barnes & Reinecke, 15 NY2d 443; McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377; Hanson v Denckla, 357 US 235; McGowan v Smith, 52 NY2d 268; Ferrante Equip. Co. v Lasker-Goldman Corp., 26 NY2d 280; Glassman v Hyder, 23 NY2d 354; Kramer v Vogl, 17 NY2d 27; Rothschild, Unterberg, Towbin v McTamney, 89 AD2d 540, 59 NY2d 651; Aero-Bocker Knitting Mills v Allied Fabrics Corp., 54 AD2d 647; Wright v Yackley, 459 F2d 287.) II. While Dr. Matta has not raised the issue on this appeal, and thereby waived it, the court below nevertheless correctly concluded that as a matter of law Dr. Lown neither derived substantial revenue from interstate commerce nor should reasonably have expected that his conduct could have consequences in the State. (Markham v Anderson, 531 F2d 634; World-Wide Volkswagen Corp. v Woodson, 444 US 286; Fantis Foods v Standard Importing Co., 49 NY2d 317.) III. Subjecting Dr. Lown to personal jurisdiction under New York’s long-arm statute would violate due process. (International Shoe Co. v Washington, 326 US 310; Milliken v Meyer, 311 US 457; World-Wide Volkswagen Corp. v Woodson, 444 US 286; Wright v Yackley, 459 F2d 287; Mayes v Leipziger, 674 F2d 178.)
   OPINION OF THE COURT

Per Curiam.

Plaintiffs have attempted, in this action, to acquire jurisdiction over a Massachusetts physician whose care of decedent was the alleged cause of death.

Plaintiffs’ decedent suffered from a heart condition for which he sought treatment from a Massachusetts physician, Dr. Bernard Lown. During the course of the patient’s care, which included a period of hospitalization in a Boston hospital, Dr. Lown prescribed Aprindine, an experimental drug manufactured by defendant Eli Lilly & Co. Following decedent’s discharge, he returned to New York, where he came under the care and treatment of a New York physician, Dr. Raymond Matta, to whom Dr. Lown had referred him. Because decedent’s treatment program involved the continued use of Aprindine, available only from a clinical investigator such as Dr. Lown, decedent was provided with a supply of the drug to take back to New York.

After decedent came under Dr. Matta’s care, Dr. Lown continued to act as a consultant with respect to the drug regimen. He communicated with Dr. Matta several times by telephone and letter and spoke to decedent’s wife on the telephone. It is also alleged that he sent an additional supply of Aprindine to decedent in New York. During this period, decedent returned to Boston once for further consultation with Dr. Lown. Thereafter, decedent was admitted to a New York hospital with a condition known as agranulocytosis (depressed white cell count). The treatment with Aprindine was discontinued, and decedent died within a short time.

Asserting that decedent’s death was caused by a side effect of the experimental drug, plaintiffs brought this action against both the drug manufacturer and Dr. Matta. Dr. Matta then sought to implead Dr. Lown, the theory of liability resting upon Dr. Down’s failure to inform Dr. Matta of the precise side effects of the drug. Dr. Lown moved to dismiss the third-party complaint on the ground that his contacts with New York were insufficient to require him to defend a medical malpractice action here. We agree with the Appellate Division that there is no basis for the exercise of personal jurisdiction over Dr. Lown.

It is urged that jurisdiction might properly be found under either prong of CPLR 302 (subd [a], par 1), which provides for the exercise of personal jurisdiction over any nondomiciliary who “transacts any business within the state or contracts anywhere to supply goods or services in the state”, where the cause of action arises from those acts. It is contended that because information about Aprindine and decedent’s treatment were unavailable to Dr. Matta except through Dr. Lown, Dr. Down’s treatment of his patient continued even after the patient returned to New York. The record does not, however, support the conclusion that Dr. Lown continued to act in the capacity of a treating physician. Rather, Dr. Lown referred decedent to a different doctor and continued his connection with the case only as a consultant. Viewing the totality of Dr. Down’s contacts with this State, in the form of written and telephonic communications and the additional provision of the experimental drug, we believe them to be too insubstantial to amount to such a “transaction of business” as to warrant subjecting Dr. Lown to suit in this forum (see McGowan v Smith, 52 NY2d 268; Rothschild, Unterberg, Towbin v McTamney, 89 AD2d 540, affd 59 NY2d 651).

It is also urged that Dr. Down’s provision of Aprindine forms the basis for jurisdiction under the recent amendment to CPLR 302 (subd [a], par 1), which provides for personal jurisdiction when a nondomiciliary “contracts anywhere to supply goods or services in the state” where the cause of action arises out of the contractual relationship. Even if we were to assume that a legal obligation existed for Dr. Lown to continue to supply Aprindine to plaintiffs’ decedent, the statute was not meant, in our view, to cover a transaction of this nature. The Legislature, in enacting this additional jurisdictional basis, was not concerned with limited provision of supplies incident to medical treatment as occurred in this case (see McLaughlin, 1979 Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, 1983-1984 Pocket Part, CPLR C302:13). The incidental provision of a drug, as part of a course of treatment rendered in another State, cannot be said to fall within the contemplation of the statute so as to confer personal jurisdiction over the physician.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Simons and KaYe concur in Per Curiam opinion; Judge Meyer taking no part.

Order affirmed, with costs.  