American BankNote Corp. v. Daniele

[339] Order, Supreme Court, New York County (Richard F. Braun, J.), entered March 2, 2006, which, to the extent appealed from, denied defendants’ motion to dismiss on grounds of forum non conveniens, granted plaintiffs leave to take jurisdictional discovery and ordered an evidentiary hearing on the jurisdictional issue, affirmed, with costs. Orders, same court and Justice, entered August 16 and September 12, 2006, which granted plaintiffs’ respective motions for an extension of time to serve the summons and complaint and for an order of attachment, affirmed, with costs. The motion court properly denied defendants’ motion to dismiss for forum non conveniens after considering the relevant factors (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985]; Bank Hapoalim [Switzerland] Ltd. v Banca Intesa S.p.A., 26 AD3d 286, 287 [2006]). Factors militating in favor of permitting plaintiffs to proceed in New York include that the relevant documents are in English and located in New York or New Jersey, key witnesses who conducted the forensic investigation that brought to light defendants’ alleged wrongdoing reside in the New York metropolitan area, and other witnesses who will testify concerning defendants’ impropriety are located in the United States, France, and India, making an Argentine forum no more convenient for these witnesses than New York. Further, New York is, plaintiffs contend, where defendant Daniele met with plaintiffs on a regular basis, where, during such meetings, he made false representations and false assurances regarding the status of Transtex’s operations, and where defendants’ bank accounts, allegedly a central part of the claimed fraudulent scheme and the means to siphon money stolen from plaintiffs, are located. Given these allegations, defendants’ claims that all relevant witnesses are in Argentina and that all relevant documents, also in Argentina, are in Spanish and would have to be translated if litigated in New York are insufficient to “meet their heavy burden of demonstrating that plaintiffs’ selection of New York as the forum for the within litigation is not in the interest of substantial justice” (Anagnostou v Stifel, 204 AD2d 61, 61 [1994]; see also Mionis v Bank Julius Baer & Co., Ltd., 9 [340] AD3d 280, 282 [2004]). That the-parties in this action are nonresidents, unduly relied upon by the dissent, is one, but only one, factor that may show inconvenience (Bank Hapoalim, 26 AD3d at 287). “[A] defendant’s ‘heavy burden’ remains despite the plaintiffs status as a nonresident” (id. at 287, quoting Mionis at 282, and citing Anagnostou). Defendants’ assertion that they would experience significant hardship defending this action is mere- speculation, given, inter alia, affidavits and documentation alleging that defendants stole more than two million dollars. Contrary to the dissent, in so ruling, we make no assumptions as to the veracity of either party’s claims. Further, “[t]he fact that some documentary and testimonial evidence will have to be translated from [Spanish] into English does not render it more difficult for defendants to proceed in New York, and the courts of this state are fully capable of applying [Argentine] law, should such law be found governing in this case” (Mionis, 9 AD3d at 282; see also Intertec Contr. A/S v Turner Steiner Intl., S.A., 6 AD3d 1, 6 [2004]). Plaintiffs’ pleadings, affidavits and accompanying documentation made a “sufficient start” to warrant further discovery on the issue of personal jurisdiction (see Peterson v Spartan Indus., 33 NY2d 463, 467 [1974]; Edelman v Taittinger, S.A., 298 AD2d 301 [2002]). The allegation that defendants used their New York bank account to further their misdeeds may be sufficient to establish long-arm jurisdiction over defendants (see Indosuez Intl. Fin. v National Reserve Bank, 98 NY2d 238, 247 [2002]; Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65, 72-73 [1984]; Banco Nacional Ultramarino v Chan, 169 Misc 2d 182, 188-189 [1996], affd 240 AD2d 253 [1997]). In addition, plaintiffs alleged that defendant Daniele traveled to New York to conduct business for plaintiffs, and that he contracted to provide goods for clients in New York. Defendants’ denial of these jurisdictional allegations warranted the court’s holding in abeyance the motion to dismiss for lack of jurisdiction pending a hearing (CPLR 2218; see e.g. Matter of Preferred Mut. Ins. Co. [Fu Guan Chan], 267 AD2d 181 [1999]). The court appropriately exercised its discretion in granting plaintiffs an extension of time pursuant to CPLR 306-b to serve the summons and complaint. Plaintiffs demonstrated good cause for the extension by showing that they diligently attempted to serve defendants, and that an extension was warranted in the interest of justice (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 105-106 [2001]; Lippett v Education Alliance, 14 AD3d 430 [2005]; Matthews v St. Vincent’s Hosp. & Med. Ctr. of NY., 303 AD2d 327 [2003]). [341] The court properly found plaintiffs had produced sufficient evidentiary facts demonstrating probable success on the merits to justify an order of attachment (CPLR 6212 [a]; see Considar, Inc. v Redi Corp. Establishment, 238 AD2d 111 [1997]; see also Olbi USA v Agapov, 283 AD2d 227 [2001]). We have considered defendants’ other arguments and find them unavailing. Concur—Mazzarelli, J.P., Friedman, Marlow and Malone, JJ.