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Suit stemming from plane crash can proceed

The executors of the estates of two Buffalo attorneys killed in a 2009 plane crash in Ohio can proceed in their suit against a training foundation.

Erie County Supreme Court Justice Timothy J. Walker has denied a motion by the University of North Dakota Aerospace Foundation, one of the defendants, to dismiss the suit with respect to the foundation.

Hugh M. Russ III

Hugh M. Russ III, of the Buffalo office of Hodgson Russ LLP, represents the estates of Michael H. Doran, co-founder of the firm Doran & Murphy, and associate Matthew Schnirel, who died in 2009 when the small plane Doran was piloting crashed near Cleveland, shortly after taking off from the Cuyahoga County Airport.

Russ is co-counsel with Jared L. Watkins, of the New York City firm Kreindler & Kreindler LLP, in a suit against Cirrus Design Corp., UND Aerospace Foundation, Garmin Ltd. and Avidyne Corp. Russ and Watkins claim the crash was caused by faulty equipment and inadequate training.

UND Aerospace Foundation, which provided training for the new Cirrus SR-22 aircraft Doran had purchased from Cirrus Design Corp. in October 2008 in White Plains, Westchester County, moved to be dismissed from the suit. UND Aerospace Foundation claimed the plaintiffs could not assert personal jurisdiction by showing the foundation was doing business in New York, but Justice Walker disagreed, citing their interactive website.

“I think it’s a good decision,” Russ said. “The decision is significant for our case because we are now allowed to proceed in New York against the defendant, who we feel is involved. But, the decision probably has greater significance for all New York litigants because it takes another step in conferring jurisdiction over parties who are not residents in New York, but who take active steps electronically to be present in New York.”

UND Aerospace Foundation is represented by Christopher Bopst, a partner in the Buffalo office of Goldberg Segalla LLP, who could not be reached for comment Monday morning.

Doran, 51, and Schnirel, 26, were returning to Buffalo from a deposition in Cleveland on April 28, 2009, when their plane crashed about 4:15 p.m. The executors of their estates are, respectively, Christopher M. Murphy, the firm’s other co-founder; and Kevin Schnirel, the father of Matthew Schnirel. The suit includes all of their lawful beneficiaries.

Plaintiffs asserted negligence and breach of contract claims against the foundation and the other defendants for their alleged failure to provide bargained for pre-flight and flight training to Doran on dangerous propensities of certain SR-22 systems and avionics. They claim certain transactions occurred in New York directly between the foundation and Doran and indirectly through Cirrus Design Corp. and Stephen Kaplan, a Cirrus standardized instructor pilot certified by the foundation, who provided training to Doran.

Doran was an experienced pilot who had owned several other aircraft before buying the Cirrus plane, according to court documents. The training was to provide specific and specialized training to get familiar with systems and characteristics of the Cirrus plane.

The foundation is a not-for-profit corporation based in Grand Forks, N.D., with satellite campuses in Arizona, Minnesota and Washington, but never in New York state.

Plaintiffs relied on Civil Practice and Rules Section 302(a)(1), which states a court may exercise personal jurisdiction over an out-of-state entity if it transacts business within the state or contracts anywhere to supply goods or services in the state.

It is undisputed the foundation provided Doran with flight training on the Cirrus SR-22 aircraft at its training center in Deluth, Minn., but plaintiffs argued the foundation conducted business with Doran prior to the training that required him to use Cirrus Aircraft Training Software and register online through the CATS system and Avidyne Entegra avionics system, an advanced system installed on the plane by defendant Avidyne Corp.

The foundation, according to the eight-page decision in Murphy v. Cirrus Design Corp. et. al. (2013 NY Slip Op (50293(U)), developed and has exclusive ownership of CATS, for which Cirrus paid for Doran’s software registered to his New York office address. Doran and the foundation also exchanged a number of emails and a number of email exchanges with Cirrus had to do with materials prepared by the foundation.

In addition, plaintiffs contend the foundation’s website was interactive enough to consist of purposeful activities in New York and that the foundation had an interactive Web store, taking orders and sending products to New Yorkers.

“While New York state law analyzing the issue of a defendant’s Internet activity is sparse, the Second Department has adopted a sliding-scale test whereby websites allowing customers to do business over the Internet occupy one end of the spectrum,” Justice Walker wrote, citing Grimaldi v. Guinn, 72 AD3d 37 (2008). “Interactive websites that allow the exchange of information occupy the middle and passive websites that merely post information lie on the other end.”

He found that the foundation’s website, as it existed from fiscal 2005 through fiscal 2011, was interactive and permitted New York residents to do business with it.

“Under these circumstances, the foundation was ‘transacting business’ in New York and is therefore subject to personal jurisdiction,” Justice Walker ruled Feb. 8 in a decision that was posted Friday to the state official reports.

He also found the plaintiffs’ claims against the foundation are linked to their assertion that the foundation failed to properly train Doran.

Russ said the decision allows the parties to proceed with discovery. He said there was a conference with the judge on Friday to set up discovery.

Russ said the matter is also a products liability case against the other defendants, alleging defects in the plane and the navigational system he said caused Doran to become disoriented when he took off in cloudy conditions using instrument flight conditions, meaning he relied on his instrument panel to guide him.

“We believe that he became disoriented and the instrument he was supposed to be using to be able to fly in the right direction at the right altitude did not function properly,” Russ said. “There is considerable evidence of the pilot’s confusion in that there were calls back and forth between the plane and the ground concerning flight headings and direction and everything else, so it’s pretty clear he was having problems.”

According to published reports (Plain Dealer May 22, 2009), the single-engine plane crashed about 2.5 miles from the airport in Mayfield Village, Ohio, about three minutes after taking off.

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