Venue and Jurisdiction

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

CPLR R. 3211(a)(8)the court has not jurisdiction of the person of the defendant

CPLR § 302 Personal jurisdiction by acts of non-domiciliaries
(a) Acts which are the basis of jurisdiction
(1) transacts any business within the state or contracts anywhere to supply goods or services in the state

Non Con

CPLR R. 327 Inconvenient forum

CRT Invs., Ltd. v BDO Seidman, LLP, 2011 NY Slip Op 04816 (App. DIv., 1st 2011)

This litigation arises out of plaintiffs' investment in the Ascot Fund, Limited, a Cayman Islands hedge fund audited by BDO Tortuga, which was a "feeder fund" for Ascot Partners, L.P., a New York hedge fund audited by BDO Seidman. Plaintiffs asserted causes of action for fraud, aiding and abetting fraud, negligence, and gross negligence against these outside auditors for failing to disclose that the fund was ultimately managed by Bernard Madoff.

Plaintiffs failed to meet their burden of demonstrating the existence of personal jurisdiction over BDO Tortuga under New York's long arm statute (Pramer S.C.A. v Abaplus Intl. Corp., 76 AD3d 89, 95 [2010]). Plaintiffs failed to rebut defendant's affidavit (see Roldan v Dexter Folder Co., 178 AD2d 589, 590 [1991]), which established that BDO Tortuga has no presence in New York, that it performed the audit of the Ascot Fund in the Cayman Islands, pursuant to engagement letters executed in, and sent from, the Cayman Islands, and that there were only limited emails with anyone in New York "affiliated in any way with Ascot Fund." Although plaintiffs argue that BDO Tortuga relied upon the audit work that BDO Seidman had performed with respect to the existence and valuation of Ascot Partners and Ascot Fund's investments, there is no basis to conclude that BDO Tortuga should have reasonably expected to defend its actions in New York (see Kreutter v McFadden Oil Corp., 71 NY2d 460, 466 [1988]). All of the relevant parties to the cause of action (plaintiff, defendant, and audit client), and all of the work that BDO Tortuga performed were in the Cayman Islands. Nor does sending a few emails and engagement letters into New York alter this result (see Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433, 434 [2006], lv denied 9 NY3d 803 [2007]).

Plaintiffs' alternative argument, that BDO Tortuga is subject to personal jurisdiction under CPLR 302(a)(3), is also unavailing. In the context of a commercial tort, where the damage is solely economic, the situs of commercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred (see O'Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199, 201-02 [2003]; Mid-Atlantic Residential Invs. Ltd. Partnership v McGuire, 166 AD2d 205, 206-07 [1990]). Plaintiff's claim that it was sold the investment in New York is irrelevant, because the injury did not arise out of its purchase of the investment here, but, rather, out of BDO Tortuga's alleged failure to appropriately perform its audit services. Defendants' affidavit also established that BDO Tortuga did not derive "substantial revenue" from interstate or international commerce (see LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210, 214 [2000]).

Berk v Linnehan, 2011 NY Slip Op 04820 (App. Div., 1st 2011)

The court properly denied defendants' motion for a change of venue to Suffolk County. Defendants failed to make the requisite showing that their allegedly inconvenienced non-party witnesses were actually contacted and were willing to testify (see Gissen v Boy Scouts of Am., 26 AD3d 289 [2006]; Gluck v Pond House Farm, Inc., 271 AD2d 334 [2000]; CPLR 510[3]). Defendants also failed to set forth the substance and materiality of the testimony of at least two of the three witnesses.

Koskar v Ford Motor Co., 2011 NY Slip Op 04636 (App. Div., 2nd 2011)

The doctrine of forum non conveniens permits a court to stay or dismiss an action when, although it may have jurisdiction over a claim, the court determines that "in the interest of substantial justice the action should be heard in another forum" (CPLR 327[a]). The defendant bears the burden on a motion to dismiss on the ground of forum non conveniens to "demonstrate relevant private or public interest factors which militate against accepting the litigation" (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479, cert denied 469 US 1108). "On such a motion, the Supreme Court is to weigh the parties' residencies, the location of the witnesses and any hardship caused by the choice of forum, the availability of an alternative forum, the situs of the action, and the burden on the New York court system" (Tiger Sourcing Ltd. v GMAC Commercial Fin. Corporation-Can., 66 AD3d 1002, 1003; see Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028; Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966). No one factor is dispositive (see Turay v Beam Bros. Trucking, Inc., 61 AD3d at 966; Brinson v Chrysler Fin., 43 AD3d 846, 848). The Supreme Court's determination should not be disturbed unless the court improvidently exercised its discretion or failed to consider the relevant factors (see Smolik v Turner Constr. Co., 48 AD3d 452, 453-454; Brinson v Chrysler Fin., 43 AD3d at 848). 

Here, the defendant Sail Trans Corp. failed to meet its burden of establishing that New York is an inconvenient forum for this consolidated action. Thus, the Supreme Court's determination denying that branch of its motion which was to dismiss the complaint insofar as asserted against it on the ground of forum non conveniens was not an improvident exercise of discretion (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474; Salzstein v Salzstein, 70 AD3d 806; Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028).

That branch of the appellant's motion which was to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211(a)(4) was not addressed by the Supreme Court and, thus, remains pending and undecided (see Katz v Katz, 68 AD2d 536, 542-543).

U.S. Bank, Natl. Assn. v Arias, 2011 NY Slip Op 05487 (App. DIv., 2nd 2011)

By order to show cause dated January 27, 2010, the defendant moved pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. The Supreme Court denied the defendant's motion in its entirety, without conducting a hearing. We reverse. 

"A process server's affidavit of service constitutes prima facie evidence of proper service" (Scarano v Scarano, 63 AD3d 716, 716). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing (see Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139), no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits'" (Scarano v Scarano, 63 AD3d at 716, quoting Simonds v Grobman, 277 AD2d 369, 370).

Here, the Supreme Court erred in determining the defendant's motion without first conducting a hearing. The process server's affidavits constituted prima facie evidence of proper service (see Scarano v Scarano, 63 AD3d at 716). However, to rebut that showing, the defendant submitted a sworn denial of service containing specific facts to rebut the presumption of proper service. Furthermore, in replying to contentions raised by the plaintiff in its opposition papers, the defendant submitted documentary evidence supporting his claim that he did not reside at the subject premises or at the Long Island City address in 2008. The defendant's submission was sufficient to rebut the prima facie showing of proper service, and to necessitate a hearing. Accordingly, the matter must be remitted to the Supreme Court, Queens County, for a hearing to determine whether the defendant was properly served with process pursuant to CPLR 308(2), and for a new determination thereafter of his motion to vacate the judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

Sufficient Start

Marist Coll. v Brady, 2011 NY Slip Op 04638 (App. Div., 2nd 2011)

Under the circumstances, the Supreme Court properly exercised its discretion in deciding, on the merits, that branch of the appellants' application which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction (see Fugazy v Fugazy, 44 AD3d 613, 614). As the party seeking to assert personal jurisdiction, the plaintiff bears the ultimate burden of proof on this issue (see Alden Personnel, Inc. v David, 38 AD3d 697, 698; Brandt v Toraby, 273 AD2d 429, 430). To successfully oppose a motion to dismiss pursuant to CPLR 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, the plaintiff did not need to make a prima facie showing of jurisdiction, but instead only needed to set forth "a sufficient start, and [show its] position not to be frivolous" (Peterson v Spartan Indus., 33 NY2d 463, 467; see Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d 623, 624; American BankNote Corp. v Daniele, 45 AD3d 338, 340; Cordero v City of New York, 236 AD2d 577, 578).

Since the plaintiff established that facts " may exist'" to exercise personal jurisdiction over the appellants and has made a "sufficient start" to warrant further discovery on that issue, the Supreme Court properly denied that branch of the appellants' application which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction (Peterson v Spartan Indus., 33 NY2d at 467; see Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d at 624; Castillo v Star Leasing Co., 69 AD3d 551, 552; cf. Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793, 794; Roldan v Dexter Folder Co., 178 AD2d 589, 589). However, since the plaintiff failed to demonstrate, prima facie, that the appellants were subject to the Supreme Court's long-arm jurisdiction pursuant to CPLR 302(a)(3)(ii) (cf. Alden Personnel, Inc. v David, 38 AD3d at 698), we modify the order appealed from to allow the appellants to seek dismissal of the complaint pursuant to CPLR 3211(a)(8) upon the completion of discovery (see Ying Jun Chen v Lei Shi, 19 AD3d 407, 407-408; Lettieri v Cushing, 80 AD3d 574, 575-576).

HBK Master Fund L.P. v Troika Dialog USA, Inc., 2011 NY Slip Op 05569 (App. Div., 1st 2011)

Plaintiffs made a "sufficient start" in demonstrating that the Russian defendants were doing business in New York through their direct or indirect subsidiaries to warrant further discovery on the issue of personal jurisdiction, including whether the parents exercised control over the subsidiaries and are therefore subject to New York's long-arm jurisdiction (see Peterson v Spartan Indus., 33 NY2d 463, 467 [1974]; Edelman v Taittinger, S.A., 298 AD2d 301, 302 [2002]).

OrthoTec, LLC v Healthpoint Capital, LLC, 2011 NY Slip Op 04533 (App. Div., 1st 2011)

We do not find that "in the interest of substantial justice the action should be heard in" France (see CPLR 327[a]). "Generally, unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed" (Anagnostou v Stifel, 204 AD2d 61, 61 [1994] [internal quotation marks and citations omitted]). This is true even though plaintiff is not a New York resident (see Travelers Cas. & Sur. Co. v Honeywell Intl. Inc., 48 AD3d 225, 226 [2008]; Bank Hapoalim [Switzerland] Ltd. v Banca Intesa S.p.A., 26 AD3d 286, 287 [2006]). The fact that defendants are New York residents weighs against forum non conveniens dismissal (see e.g. Anagnostou, 204 AD2d at 62). Even if some documents will have to be translated from French into English, that does not require dismissal (see e.g. American BankNote Corp. v Daniele, 45 AD3d 338, 340 [2007]).