Opinion
Index No. 156010/2022 Motion Seq. No. 004
01-02-2024
YAM1LEE BONGO ASTIER, SASHA BONGO-ASTIER, Plaintiff, v. PASCALINE MFERRI BONGO ONDIMBA, NESTA BONGO PING, CHRISTOPHER BONG-PING, LYNN OTALY- SERGENT MAEL JUNIOR OTALY-SERGENT, AMINISHA CORPORATION, PHARUS LLC Defendant.
Unpublished Opinion
MOTION DATE 05/08/2023
PRESENT: HON. MARY V. ROSADO Justice
DECISION + ORDER ON MOTION
HON. MARY V. ROSADO J.S.C.
The following e-fied documents, listed by NYSCEF document number (Motion 004) 24, 25, 26, 27, 29, 32, 34, 37, 48 were read on this motion to/for DISMISS.
Upon the foregoing documents, and after oral argument which occurred on August 29, 2023 where Kenneth Sussmane, Esq. appeared for Plaintiffs Yamille Bongo Astier and Sasha Hondo-Astier (together. "Plaintiffs"); Angelica Aminov, Esq. and Michael Grudberg, Esq. appeared for Defendants Aminisha Corporation and Pharus LLC (the "Corporate Defendants"); and Alice Buttrick, Esq. and Jonathan P. Bach. Esq. appeared for Defendants Pascaline Mferri Bongo Ondimba, Nesta Bongo-Ping, Christopher Bong-Ping, Lynn Otaly-Sergent, and Mae] Junior Otaly-Sergent (together, the "Individual Defendants"), (he Corporate Defendants motion for an Order dismissing Plaintiffs' claims against them is granted.
1. Background
Plaintiffs Yamille Bongo Astier and her daughter Sasha Bondo-Astier arc alleged to be the daughter and granddaughter, respectfully, of Omar Bongo Ondimba ("President Ondimba"), the former President of Gabon (NYSCEF Doc. 35 at p. 5). Plaintiffs commenced this action against the Individual Defendants and Corporate Defendants (collectively, "Defendants') on July 19, 2022, claiming that after President Ondimba's death. Defendants misappropriated funds from President Ondimba's Estate (the "Estate") that Plaintiffs were entitled to (NYSCEF Doc. 1).
On May 8, 2023, the Individual Defendants brought a motion (Motion Sequence 3) to dismiss Plaintiffs' claims against them (NYSCEF Doc. 19). By Decision and Order dated January 2, 2024, this Court granted the Individual Defendants' motion to dismiss Plaintiffs' claims against them and denied Plaintiffs' cross-motion for leave to file an amended complaint.
On May 8, 2023, the Corporate Defendants brought the instant motion to dismiss Plaintiffs' claims against them on the grounds that (1) Plaintiffs lack standing; (2) this Court lacks personal jurisdiction over the Corporate Defendants; (3) Plaintiffs' claims are time-barred: (4) Plaintiffs' pleading fails to state a cause of action; and (5) Plaintiffs' Complaint fails to include necessary parties (NYSCEF Doc. 24).
II. Discussion
a. Plaintiffs' Claims arc Dismissed for Lack of Personal Jurisdiction
The Corporate Defendants move to dismiss Plaintiffs' Complaint pursuant to, inter alia. CPLR. 3211(a)(8) on the ground that this Court lacks personal jurisdiction over the Corporate Defendants. Where a defendant moves to dismiss pursuant to CPLR 3211 (a)(8), it is the plaintiff's burden to prove the court has jurisdiction (Copp v Ramirez, 62 A.D.3d 23, 28, 874 [ 1 st Dept 20091). As discussed below, Plaintiffs have failed to meet their burden of demonstrating that this Court has personal jurisdiction over the Corporate Defendants.
It is well established that "a court may not exercise persona] jurisdiction over a nondomiciliary unless two requirements arc satisfied: (he action is permissible under New York's long-arm statute, and the exercise of jurisdiction comports with due process" (English v Avon Prods., Inc., 206 A.D.3d 404, 405 [1st Dept 2022]).
i. Plaintiffs' Claims arc not Permissible Under CPLR 302(a)
Preliminarily, Plaintiffs concede that the Corporate Defendants are residents of California (NYSCEF Doc. 1 at ¶ A at 5). Pursuant to CPLR 302(a), a New York court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:
(1) transacts any business within the stale or contracts anywhere to supply goods or services in the slate; or (2) commits a tortious act within the state...: or (3) commits a tortious act without the stale causing injury to person or property within the state...if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial re venue from inter stale or international commerce: or (4) owns, uses or possesses any real property situated within the state.
Plaintiffs Complaint contains no allegation that the Corporate Defendants transacted any business in New York State, engaged in any tortious act within New York State, or possessed any property in New York State. Nonetheless, Plaintiffs contend that the Complaint satisfies each clement of CPLR 302(a)(3) with respect to the Corporate Defendants because Plaintiffs' claims, if proven, would "establish the tortious acts of fraudulent conveyance and unjust enrichment committed outside New York...[which] would reasonable be expected to have consequences to Plaintiffs in New York" (NYSCEF Doc. 37 at p. 6). For the reasons outlined below, this argument is unavailing.
It is well established that, for the purposes of CPLR 302(a)(3), "the situs of the injury is the location of the original even I which caused the injury', not the location where the resultant damages are subsequently felt" (Cotia (USA) Ltd v Lynn Steel Corp., 134 A.D.3d 483,484 [1st Dept 2015] (internal citations omitted); see also (Marie v Altshuler, 30 A.D.3d 271, 272 [1st Dept 2006]) (holding that "the rule that the situs of the injury for long-arm purposes is where the event giving rise to the injury occurred, not where the resultant damages occurred, is not restricted to medical malpractice or personal injury cases"). Further, Courts have firmly held that "the residence or domicile of the injured party within a State is not a sufficient predicate for jurisdiction, which must be based upon a more direct injury within the State and a closer expectation of consequences within the State than the indirect financial loss resulting from the fact that the injured person resides or is domiciled there" (Bantis Bonds, Inc. v Standard Importing Co. 49 N.Y.2d 317. 326 [1980]; see also. (HH Trinity Apex Invs. LLC v Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., 210 A.D.3d 474, 476 [1st Dept 2022]) (holding that "Plaintiffs' reliance on [an] alleged extortion as a basis for CPLR. 302(a)(3) jurisdiction is...misplaced, because their having felt economic injury in New York, alone, is not sufficient to confer jurisdiction under that subsection").
Accordingly, Plaintiffs' claim that the effects of the Corporate Defendants' alleged tortious conduct "would reasonably be expected to have consequences to Plaintiffs in New York," is not sufficient to allege that the Corporate Defendants committed a tortious act causing injury to Plaintiffs' person or property in New York under CPLR 302(a)(2) or (a)(3).
Having failed to claim that the Corporate Defendants transacted any business in New-York. engaged in any tortious act in New York, owned any property in New' York, or caused any injury to Plaintiffs' person or property in New York, Plaintiffs fail to establish that this Court has personal jurisdiction over the Corporate Defendants under CPLR 302(a). Accordingly, Plaintiffs' claims against the Corporate Defendants must be dismissed.
ii. This Court's Exercise of Personal Jurisdiction Over the Corporate Defendants Would Not Comport with IJ uc Process
Even assuming arguendo and contrary7 to law and fact that Plaintiffs sufficiently pled injury to person or property within New York, this Court's exercise of personal jurisdiction over the Corporate Defendants would violate the requirements of due process.
Once the requirements of CPLR 302(a) have been met, further inquiry is required "to determine whether the exercise of personal jurisdiction comports with traditional notions of fair play, substantial justice, and due process" (English at 406), The "due process'' element "is satisfied where the nondomiciliary' has minimum contacts with New York State and based upon those contacts, defendant could or should have reasonably anticipated being 'haled into court' here" (Id. at 407).
The Court of Appeals has held that jurisdiction will be upheld "where the defendant purposefully reaches beyond their State into another but 'the relationship between the defendant and the forum state must arise out of defendant's own contacts with the forum and not contacts between the plaintiff.. .and the forum State'" (State of New York v Vayu, Inc. 39 N.Y.3d 330, 33712023 ]) (quoting Williams v Beemiller, Inc., 33 N.Y.3d 523, 529 [2019]).
In Walden v Fiore, 571 U.S. 277 (2014). the United States Supreme Court held that:
"mere injury to a forum resident is not a sufficient connection to the forum...The proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant's conduct connects him to the forum in a meaningful way.'
The Walden Court further held that where a defendant's relevant conduct occurred entirely out of state, "the mere fact that his conduct affected plaintiffs with connections to the forum State does not suffice to authorize jurisdiction" (Id. at 291). For the exercise of personal jurisdiction to be proper, "it is essential that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State,, thus invoking the benefits and protections of its laws" (Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 21. A.D.3d 90, 94 [1st Dept 2005]).
In the case at bar. Plaintiffs' Complaint fails to allege that the Corporate Defendants had sufficient contacts with New York to establish personal jurisdiction. Plaintiffs claim that the Corporate Defendants knew that Plaintiffs lived in New York and were likely to suffer damages there (NYSCEF Doc. 35 at p. 6) is insufficient to establish the Corporate Defendants requisite contacts with New York.
As the Corporate Defendants arc not domiciled in New York and Plaintiffs have failed to adequately claim that the Corporate Defendants transacted any business in New York, engaged in any tortious act within New York, possessed any property in New York, caused injury to Plaintiffs' person or property in New York, or established the requisite minimum contacts in New York to satisfy due process, this Court docs not have personal jurisdiction, over the Corporate Defendants pursuant to CPLR 302, and Plaintiffs' claims against the Corporate Defendants must be dismissed.
Having dismissed Plaintiff's claims against the Individual Defendants based on this Court's lack of personal jurisdiction, the Individual Defendants' alternative grounds for dismissal need not be considered.
Accordingly, it is hereby, ORDERED that the Corporate Defendants' motion for an Order dismissing Plaintiffs' claims against them is granted, and Plaintiffs' claims against the Corporate Defendants arc dismissed in their entirely: and it is further
ORDERED that within ten (10) days of entry, counsel for the Corporate Defendants shall sen e a copy of this Decision and Order, with notice of entry, on Plaintiffs Yamillie Bongo Astier and Sasha Bondo-Astier; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.