Opinion
No. 6393/10.
2012-03-22
HOLY CHURCH OF the VIRGIN MARY HOME FOR the AGED IN ICARIA, Greece, Plaintiff(s), v. PAN–ICARIAN FOUNDATION, Anthony Kayafas, Socrates Koutsoutis, Gus Yiakas, Maria Vassilaros, Colleen Xenakis, Pan Icarian Brotherhood of America, Sonja Stefanadis, E. Terry Platis, Margo Pisak, individually and as an Executrix and Trustee of the Souroumanis Estate and Souroumanis Family Fund, Defendant(s).
JANICE A. TAYLOR, J.
Upon the foregoing papers it is ORDERED that the motion is decided as follows:
Plaintiff in this action seeks to recover damages for, inter alia, breach of contract, conversion, fraud and conspiracy to commit fraud. This action was commenced on March 15, 2010 by the filing of a summons with notice. On or about September 29, 2010, plaintiff served a verified complaint. According to the complaint, plaintiff seeks to recover money that was bequeathed to it through the Last Will and Testament (“Will”) and Codicil to the Last Will and Testament (“Codicil”) of non-party John P. Souroumanis. Pursuant to the terms of the Will and Codicil, defendant Pan–Icarian Foundation (“Foundation”) was to receive the sum of $1,005,000 from non-party John P. Souroumanis' estate (“Estate”) and was directed to distribute these assets to the plaintiff. Mr. Souroumanis died on August 11, 2003. It is uncontested that, the $1,005,000 was received by the Foundation in May, 2005.
Plaintiff further asserts that defendants Pan–Icararian Brotherhood of America (“Brotherhood”) and Foundation acted together and wrongfully refused to disburse the subject funds. In its complaint, plaintiff asserts that, in March, 2007, non-party John Howe, as Executor of the Estate, demanded the return of the $1,005,000 due to the defendants' continued failure to distribute the funds to the plaintiff. It is uncontested that, in February, 2009, plaintiff received a payment of $30,000 from the Foundation. To date, no further payments have been distributed.
By order dated December 9, 2011, this court denied those portions of the motion made by defendants Foundation, Socrates Koutsoutis (“Koutsoutis”), Gus Yiakas (“Yiakas”) and Maria Vassilaros (“Vassilaros”) which sought dismissal of the complaint, pursuant to CPLR § 3211(a)(8), (11), due to plaintiff's failure to acquire jurisdiction over them and, pursuant to CPLR § 3211(a)(11) because they are immune from liability pursuant to Not–for–Profit Corporation Law § 720–a. In its December 9, 2011 order, this court ruled that the affidavits submitted by Koutsoutis, Yiakas and Vassilaros could not be considered by this court because they lacked the certification required by CPLR § 2309[c]. Additionally, this court noted that the affidavit submitted by defendant Yiakas was not notarized.
Defendants Foundation, Koutsoutis, Yiakas and Vassilaros now move, pursuant to CPLR § 2221[e], for leave to renew their prior motion to dismiss the complaint.CPLR § 2221[e] mandates that a motion for leave to renew must be supported by new or additional facts not offered on the prior motion that would change the prior determination (see also, Orlando v. City of New York, 21 AD3d 357 [2nd Dept.2005] ). In support of this motion, defendants Koutsoutis, Yiakas and Vassilaros submit new affidavits which have all been properly notarized and corresponding certifications authenticating the authority of the notary who administered the oath. Accordingly, the instant motion for leave to renew is hereby granted.
Upon renewal, this court will consider defendants Kayafas', Koutsoutis', Yiakas' and Vassilaros' motion to dismiss the complaint, pursuant to CPLR § 3211(a)(11), asserting the immunity of said defendants pursuant to Not–for–Profit Corporation Law § 720–a. This court will also consider that portion of the instant motion which seeks to dismiss the complaint, pursuant to CPLR § 3211(a)(8), as against defendants Foundation, Koutsoutis, Yiakas and Vassilaros due to plaintiff's failure to acquire jurisdiction over them.
CPLR § 3211(a)(11) gives the authority to dismiss a complaint where the party is immune from liability pursuant to Not–For–Profit Corporation Law § 720–a. When deciding a motion to dismiss made pursuant to CPLR § 3211(a)(11), a court must determine if a defendant is entitled to such immunity and, if it rules that the defendant is so entitled, whether there is a reasonable probability that the conduct of the defendant alleged constitutes gross negligence or was intended to cause the resulting harm to the plaintiff (See, Rabushka v. Marks, 229 A.D.2d 829 [3d Dept. ]; Thome v. Alexander and Louisa Calder Foundation, 70 AD3d 88 [1st Dept.2009] ).
In support of their motion, the movants submit proof that the defendant Foundation is a tax-exempt not-for-profit corporation and that defendants Kayafas, Koutsoutis, Yiakas and Vassilaros were not compensated for their work with the Foundation. Thus, the movants have demonstrated their preliminary entitlement to the immunity afforded by Not–For–Profit Law § 720–a. This court must now examine whether the alleged conduct of defendants Kayafas, Koutsoutis, Yiakas and Vassilaros constituted gross negligence or was intended to cause harm to the plaintiff (See, Thome, 70 AD3d 88,supra ).
New York courts have defined gross negligence as conduct which evinces reckless disregard for others or shows clear wrongdoing (see, Federal Insurance Co. v. Honeywell, 243 A.D.2d 605 [2d Dept.1997]; Colnagi, U.S.A., Ltd. v. Jewelers Protection Service, [1993] ). A review of the instant complaint reveals that plaintiff has not alleged any specific acts by defendants Kayafas, Koutsoutis, Yiakas and Vassilaros, as officers of defendant Foundation, which could be described as evincing reckless disregard for the plaintiff (See, Federal Insurance Co. v. Honeywell, supra ). However, plaintiff does assert that the Foundation, and its officers, willfully refused to distribute the remaining $975,000 of the bequeathed donation to the plaintiff, causing the resulting damages. Thus, as plaintiff has sufficiently alleged that the intentional actions of defendants Kayafas, Koutsoutis, Yiakas and Vassilaros, as officers of defendant Foundation, resulted in damages to the plaintiff, the movants have failed to demonstrate their entitlement to dismissal of the complaint due to the immunity granted by Not–for–Profit Corporation Law § 720–a. Accordingly, that portion of the instant motion which seeks to dismiss the complaint, pursuant to CPLR § 3211(a)(11), against defendants Kayafas, Koutsoutis, Yiakas and Vassilaros is denied.
This court will now consider that portion of the instant motion, made pursuant to CPLR § 3211(a)(8), by defendants Foundation, Koutsoutis, Yiakas and Vassilaros.
CPLR § 3211(a)(8) gives this court the authority to dismiss an action where the court has no jurisdiction over the person of the defendant (See, Bramwell v. Tucker, 107 A.D.2d 731 [2d Dept.1995] ). In their affidavits, defendants Koutsoutis, Yiakas state that they are each former members of the Board of Directors of defendant Foundation and that they are residents of the States of Maryland and California respectively. In her affidavit, defendant Vassilaros asserts that she serves as a clerical person for the defendant Foundation and resides in the State of Pennsylvania. Additionally, defendants Koutsoutis and Yiakas aver that the Foundation has never transacted business, maintained an office nor a bank account within the State of New York.
It is uncontested that defendant Anthony Kayafas is a resident of the State of New York. Thus, he does not join in that portion of the instant motion which seeks dismissal of the complaint pursuant to CPLR § 3211(8).
Although it is undisputed that defendant Foundation is a foreign corporation, and that defendants Koutsoutis, Yiakas and Vassilaros are non-domiciliaries of the State of New York, that fact alone does not mean that this court may not have jurisdiction over it. CPLR § 302, known as New York's Long Arm Statute gives this court jurisdiction over certain non-domiciliaries. In Kreuter v. McFadden Oil Corp., the New York Court of Appeals ruled that “so long as a party avails itself of the benefits of the forum, has sufficient minimum contacts with it, and should reasonably expect to defend its actions there, due process is not offended if that party is subjected to jurisdiction even if not “present” in that State” (Kreuter v. McFadden Oil Corp., 71 N.Y.2d 460 [1988]; see also, Muse Collections Inc. v. Bijoux, Inc., 86 AD3d 631 [2d Dept.2011] ).
CPLR § 302, describes the acts by a non-resident which may allow them to be sued in New York State for causes of action arising from these acts (Carte v. Parkoff, 152 A.D.2d 615[2d Dept.1989). These acts include transacting business or contracting to supply goods within the State of New York, committing a tortuous act within the state, committing a tortuous act outside of the state which causes injury to a person within the state where the actor engages or solicits business, derives substantial revenue or reasonably expects the act to have consequences within the state or owns, uses or possesses real property within the state.
In the aforementioned affidavits, defendants Koutsoutis and Yiakas state that the Foundation does not conduct business, own property, solicit business or take any of the acts which would allow this court to rule that it is subject to New York's Long Arm Statute. Further, defendants Koutsoutis, Yiakas and Vassilaros each contend that they do not personally own property or transact business within the state. In opposition to the instant motion, plaintiff asserts that the Foundation maintains offices in the State of New York and transacts business within the State of New York. Plaintiff also contends that the defendants' tortuous act of refusing to disburse the subject funds was committed within the State of New York. However, a review of the documents submitted in support of these contentions reveal that it is defendant Brotherhood whose website is cited by the plaintiff and which may have offices in the State of New York. Plaintiff brings forth no proof to dispute defendant Foundation's claim that it does not conduct business, own property, solicit business or otherwise avail itself to the jurisdiction of the State of New York.
Moreover, plaintiff's belief that the alleged tortious act was committed within the state because the Foundation refused to return money to the Estate within the State of New York is unpersuasive to this court. Thus, as plaintiff has failed to offer any evidence that defendants Foundation, Koutsoutis, Yiakas and Vassilaros are subject to the jurisdiction of this court, that portion of the instant motion which seeks to dismiss the complaint as against these defendants Foundation is granted. It is,
ORDERED, that the instant complaint is hereby dismissed as against defendants Pan–Icarian Foundation, Socrates Koutsoutis, Gus Yiakas and Maria Vassilaros. The foregoing constitutes the decision, order and judgment of the court.