Opinion
2012-07-3
Alexander GLIKLAD, Plaintiff–Respondent, v. Michael CHERNEY, Defendant–Appellant.
Friedman Kaplan Seiler & Adelman LLP, New York (Philippe Adler of counsel), for appellant. Winston & Strawn LLP, Chicago, IL (W. Gordon Dobie of the bar of the State of Illinois, admitted pro hac vice, of counsel), for respondent.
Friedman Kaplan Seiler & Adelman LLP, New York (Philippe Adler of counsel), for appellant. Winston & Strawn LLP, Chicago, IL (W. Gordon Dobie of the bar of the State of Illinois, admitted pro hac vice, of counsel), for respondent.
GONZALEZ, P.J., ANDRIAS, SAXE, DeGRASSE, ROMÁN, JJ.
Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered May 24, 2011, which granted plaintiff Alexander Gliklad's cross motion to strike defendant's affirmative defense of lack of personal jurisdiction, unanimously reversed, on the law, without costs, and the cross motion denied. Order, same court and Justice, entered July 21, 2011, granting plaintiff's motion for a preliminary injunction enjoining defendant from prosecuting a pending action in Israel; order, same court and Justice, entered October 21, 2011, which denied defendant's motion to dismiss pursuant to CPLR 327 on the ground of forum non conveniens; and order, same court and Justice, entered October 27, 2011, which denied defendant's motion to renew and reargue the July 2011 order, unanimously affirmed, without costs.
The IAS court erred in granting plaintiff's motion to strike defendant's affirmative defense of lack of personal jurisdiction. Contrary to plaintiff's contention, defendant did not waive this defense by moving for summary judgment dismissing the complaint on the merits, given that defendant had previously raised the jurisdictional defense. Competello v. Giordano, 51 N.Y.2d 904, 434 N.Y.S.2d 976, 415 N.E.2d 965 [1980] is distinguishable, as the defendant in that case failed to raise the defense of lack of personal jurisdiction in a motion pursuant to CPLR 3211(a)(7).
Defendant failed to meet his burden of establishing that New York is an inconvenient forum for this action ( see Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478–479, 478 N.Y.S.2d 597, 467 N.E.2d 245 [1984],cert. denied469 U.S. 1108, 105 S.Ct. 783, 83 L.Ed.2d 778 [1985] ). Further, the subject promissory note contained a clause selecting New York as the forum, barring defendant's forum non conveniens motion ( see Sebastian Holdings, Inc. v. Deutsche Bank AG., 78 A.D.3d 446, 447, 912 N.Y.S.2d 13 [2010] ).
The court properly granted plaintiff's motion for a preliminary injunction barring defendant from prosecuting the action he had commenced in Israel over the same promissory note at issue in the instant action. A party moving for a preliminary injunction must establish a likelihood of success on the merits, irreparable harm if the injunction were not granted, and a balance of the equities in the movant's favor ( see W.T. Grant Co. v. Srogi, 52 N.Y.2d 496, 517, 438 N.Y.S.2d 761, 420 N.E.2d 953 [1981];Casita, L.P. v. MapleWood Equity Partners [Offshore] Ltd., 43 A.D.3d 260, 841 N.Y.S.2d 19 [2007] ). Here, even if defendant may have a meritorious defense, plaintiff made a prima facie showing that his claim under the promissory note has merit ( see Matter of Witham v. vFinance Invs., Inc., 52 A.D.3d 403, 860 N.Y.S.2d 98 [2008];Bingham v. Struve, 184 A.D.2d 85, 591 N.Y.S.2d 156 [1992] ). Plaintiff also established a risk that he would suffer irreparable harm if he were to travel to Israel to litigate the other action, since this act might jeopardize his Canadian asylum status. In addition, the balance of the equities favors plaintiff, since the expenditures of time and resources by the parties and the court would be potentially wasted if the Israeli action, which defendant commenced one-a-half years after the commencement of the instant action, were to result in a decision precluding any decision the court might have reached in this case ( see Jay Franco & Sons Inc. v. G Studios, LLC, 34 A.D.3d 297, 825 N.Y.S.2d 20 [2006] ).
Further, defendant appeared to be forum shopping by attempting to obtain a favorable decision from the Israeli court, which would interfere with the New York court's ability to resolve the issues before it ( see IRB–Brasil Resseguros S.A. v. Portobello Intl. Ltd., 59 A.D.3d 366, 874 N.Y.S.2d 79 [2009] ).
Finally, the court did not err in denying defendant's motion to renew. Contrary to defendant's contention that the court should have ordered plaintiff to post an undertaking to cover defendant's damages in the event the injunction were found to have been erroneously issued, the injunction would actually save both parties time and money by relieving them from the burden of litigating a second action ( see Ithilien Realty Corp. v. 180 Ludlow Dev. LLC, 80 A.D.3d 455, 915 N.Y.S.2d 63 [2011];Visual Equities Inc. v. Sotheby's, Inc., 199 A.D.2d 59, 604 N.Y.S.2d 117 [1993] ).