Opinion
603820/04.
Decided May 2, 2005.
This action is for breach of an alleged oral contract. The plaintiff Imanagement Services, Ltd., is a British Virgin Islands corporation. The defendant Mehmet E. Karamehmet is a resident of Turkey. Plaintiff claims that Karamehmet wished to acquire a majority stake in a Turkish oil refining company known as Tupras Tukeye Petrol Rafinerseri As ("Tupras"). According to plaintiff, the defendant asked it to pursue various lawful means to discredit a competing bid for Tupras by a Russian company and to delay the closing of the Tupras sale to this company so that defendant would have time to submit a rival bid. Pursuant to the alleged agreement, plaintiff would be compensated for its efforts with a 2% stake in Tupras in the event that defendant was ultimately successful in acquiring the company. In the event defendant was not successful, he allegedly agreed to reimburse plaintiff for the costs it incurred on his behalf.
Plaintiff alleges that it thereafter engaged in various activities on behalf of the defendant. Specifically, plaintiff alleges that it initiated and held press conferences in Turkey which sought to discredit the bid by the Russian company, submitted objections to the bid on defendant's behalf, and initiated litigation in New York, Russia, Germany and elsewhere seeking to set aside any adverse bids. Plaintiff claims that the defendant, in violation of the agreement, failed to reinstate his bid for Tupras despite having been afforded the opportunity to do so. Plaintiff also claims that defendant breached the terms of the oral agreement by failing to reimburse it for the costs it incurred in furthering defendant's interests, an amount which plaintiff claims exceeds $5,000,000.00. The complaint asserts three causes of action. The first cause of action is for breach of contract. The second is for quantum meruit and unjust enrichment. The third is for fraud.
Defendant has now moved to dismiss the complaint, pursuant to CPLR 3016(b) and 3211(a)(7) and (8), on the grounds that (1) this court lacks personal jurisdiction over him, (2) the complaint fails to state a cause of action and (3) the complaint fails to plead fraud with the requisite particularity. Alternatively, defendant moves to dismiss the complaint, pursuant to CPLR 327(a), on the ground of forum non conveniens.
The court is persuaded that the complaint should be dismissed on the ground of forum non conveniens. Under CPLR 327(b), a court may dismiss an action when it finds that, in the interest of substantial justice, the action "would be better adjudicated elsewhere . . ." Islamic Republic of Iran v. Pahlavi, 62 NY2d 474, 479 (1984). "Among the factors to be considered are the burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum in which the plaintiff may bring suit. . . . The court may also consider that both parties to the action are nonresidents. . . . and that the transaction out of which the cause of action arose occurred primarily in a foreign jurisdiction. . . . No one factor is controlling. . . . The great advantage of the rule of forum non conveniens is its flexibility based upon the facts and circumstances of each case. . . . The rule rests upon justice, fairness and convenience . . .". Id. at 479.
Here, defendant argues that the case should be dismissed because it lacks any meaningful connection to New York. See Millicom International Cellular S.A. v. Simon, 247 AD2d 223 (1st Dept. 1998); Blueeye Navigation v. Den Norske Bank, 239 AD2d 192 (1st Dept. 1997). The court agrees. As pled in the complaint, the purpose of the alleged contract was to affect the bidding process in Turkey for a stake in a Turkish oil refinery. Although there is evidence that, towards this end, the plaintiff may have hired a New York law firm to draft a press release, coordinate a press conference in Turkey and commence litigation in New York, it is clear that this was only one small part of the campaign to delay the closing of the sale of the refinery to a Russian company. As previously noted, the campaign included numerous press conferences in Turkey, objections in Turkey to the bid on defendant's behalf, and litigation in Russia, Germany and Turkey. The few activities in New York which related to the performance of the alleged oral contract thus paled in comparison to the activities in Turkey and elsewhere. In any event, all of these activities were intended to affect a transaction not in New York, but in Turkey.
In addition, plaintiff concedes that almost all of the potential witnesses are located outside of New York and that several of these witnesses are residents of Turkey. It is clear that Turkey has a far greater interest in deciding this controversy than does New York and plaintiff does not identify any interest that New York has in this action which would justify the State spending judicial resources on this action. See Islamic Republic of Iran v. Pahlavi, 62 NY2d at 480.
The court notes that the defendant also maintains that it would be an undue burden for him to have to litigate this matter in New York. Plaintiff, however, relying on Nat'l Development Co. v. Triad Holding Corp., 930 F2d 253, 257-58 (2nd Cir 1991), asserts that the defendant is a New York resident because a Turkish corporation which he allegedly controls owns an apartment at Trump Tower on Fifth Avenue in Manhattan. Nat'l Development, however, did not involve a forum non conveniens analysis but rather, the question of personal jurisdiction. Moreover, in that case, it was undisputed that the individual who controlled the corporate owner of the premises regularly occupied the apartment and, indeed, was living there on the day that service of process was attempted. Id. at 258. Here, there is no evidence that the defendant has ever been to the Trump Tower apartment he is said to occupy, much less that he has regularly resided there. Therefore, for the purpose of forum non conveniens analysis only, the court declines to consider the defendant, who indisputably lives primarily in Turkey, to be a New York resident.
The plaintiff also contends that the case has substantial connection to New York because one of its principals, Nick Lyustiger, negotiated the oral agreement while he was in New York. Plaintiff, however, has not offered any proof which indicates that New York was the primary location where any such agreement was negotiated. On the contrary, the plaintiff itself has submitted numerous e-mails which show that Mr. Lyustiger, who appears to be a California resident, was in fact present in several different locations, including California, Moscow, London and Turkey, when he negotiated the alleged oral agreement with the defendant. In addition, one of Mr. Lyustiger's assistants, Irina Melechtchenko, participated in the negotiations from Moscow. In fact, only two e-mails even refer to Mr. Lyustiger as being present in New York. In addition, a number of the e-mails were addressed to him at a company named American Vortex Corporation in Sacramento, California. Although Mr. Lyustiger has submitted phone bills which show that he made and received numerous calls to Turkey on his cellular telephone, there is no evidence that he was in New York at the time since the bills do not indicate where he received or made the calls. Indeed, the court notes that Mr. Lyustiger's cellular telephone has a California area code. The court also notes that there is no evidence that defendant himself ever visited New York for the purpose of negotiating with plaintiff.
Plaintiff also argues that Turkey is not an appropriate forum to litigate this dispute because defendant's wealth and political contacts in that country will influence the Turkish judiciary and prevent plaintiff from getting a fair resolution of this dispute. This argument is without merit. Plaintiff offers no proof in support of these allegations and Turkey has previously been found to have a sufficiently adequate judicial system to litigate disputes of this nature. See Travelers Indem. Co. v. S/S Alca, 713 F Supp 129, 130-31 (S.D.NY 1989); Allianz Versicherungs-Aktiengesellschaft Munich Reinsurance co. v. S.S. Eskisehir, 353 F Supp 84, 85 (S.D.NY 1972).
Finally, plaintiff asserts that New York is the appropriate forum to litigate this dispute because New York law should apply to this action. Plaintiff, however, offers no support for this assertion. Given the fact that the location of the subject matter of the alleged agreement as well as the residence of the defendant and the place of performance all lie primarily in Turkey, it would appear that Turkish law, not New York law, should apply to this contractual dispute. Under the circumstances, the court concludes that justice, fairness and convenience dictate that this dispute should be adjudicated elsewhere.
Accordingly, the defendant's motion to dismiss is granted to the extent that the complaint is hereby dismissed on the ground of forum non conveniens.