Under New York’s long-arm statute, “a court may exercise personal jurisdiction over any non-domiciliary . . . who . . . transacts any business within the state” (CPLR 302 [a]), regardless of whether that nondomiciliary has actually set foot in New York State (see Fischbarg v Doucet, 9 NY3d 375, 380 [2007]; Kreutter v McFadden Oil Corp., 71 NY2d 460, 467 [1988]; Parke-Bernet Galleries v Franklyn, 26 NY2d 13, 17 [1970]; Bogal v Finger, 59 AD3d 653 [2009]). Whether a defendant has transacted business within New York is determined under the totality of the circumstances, and rests on whether the defendant, by some act or acts, has “purposefully avail[ed] itself of the privilege of conducting activities within [New York]” (Ehrenfeld v Bin Mahfouz, 9 NY3d 501, 508 [2007]). “Purposeful activities are those with which a defendant, through volitional acts, ‘avails itself of the privileges of conducting activities within the forum State, thus invoking the benefits and protections of its laws’ ” (Fischbarg v Doucet, 9 NY3d at 380, quoting McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377, 382 [1967]). The long-arm
The Supreme Court properly dismissed the complaint. Although negotiations may have taken place by telephone, fax, and e-mail, and the defendant allegedly faxed the agreement to Executive’s office in New York, the defendant’s actions did not amount to a purposeful invocation of the privileges of conducting business in New York. We note that the defendant did not specify that any applicant was to come from New York, and, indeed, the person he hired was already based in Colorado (see Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433, 434 [2006]; Professional Personnel Mgt. Corp. v Southwest Med. Assoc., 216 AD2d 958 [1995]; Milliken v Holst, 205 AD2d 508, 509-510 [1994]; cf. Corporate Campaign v Local 7837, United Paperworkers Intl. Union, 265 AD2d 274, 275-276 [1999]). The choice of law provision in the agreement, while relevant, is insufficient by itself to confer personal jurisdiction over the defendant in New York under CPLR 302 (a) (1) (see Goulds Pumps v Mazander Engineered Equip. Co., 217 AD2d 960, 961 [1995]; Peter Lisec Glastechnische Industrie GmbH v Lenhardt Maschinenbau GmbH, 173 AD2d 70, 72 [1991]). Fisher, J.P., Covello, Santucci and Balkin, JJ., concur.