Opinion
2012-12-4
Frances C. PETERS, Plaintiff–Appellant, v. George Christy PETERS, et al., Defendants, UBS AG, etc., et al., Defendants–Respondents.
Leslie Trager, New York, for appellant. Mayer Brown, LLP, New York (Mark G. Hanchet of counsel), for respondents.
Leslie Trager, New York, for appellant. Mayer Brown, LLP, New York (Mark G. Hanchet of counsel), for respondents.
, J.P., SWEENY, RICHTER, ABDUS–SALAAM, ROMÁN, JJ.
Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered July 12, 2011, which granted defendant UBS AG's and defendant UBS Trustees' (UBS Bahamas) motions to dismiss the complaint as against them on forum non conveniens and personal jurisdiction grounds, respectively, without prejudice to recommencement in the appropriate jurisdictions, unanimously affirmed, without costs.
The motion court properly exercised its discretion in finding that the fact of plaintiff's residence in New York is outweighed by the remaining factors under consideration on UBS AG's motion to dismiss on the ground of forum non conveniens ( see Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 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] ). The transaction out of which the cause of action arose occurred in Switzerland, all the meetings described by plaintiff that involved UBS AG personnel took place in that country, nearly all the nonparty witnesses are there, Swiss law would apply to the claims, and plaintiff may bring suit in Switzerland.
The court properly granted UBS Bahamas' motion to dismiss on the ground of lack of personal jurisdiction pursuant to CPLR 302(a)(2), since plaintiff does not allege that UBS Bahamas committed a tort within the State of New York ( see Longines–Wittnauer Watch Co. v. Barnes & Reinecke, 15 N.Y.2d 443, 460, 261 N.Y.S.2d 8, 209 N.E.2d 68 [1965],cert. denied382 U.S. 905, 86 S.Ct. 241, 15 L.Ed.2d 158 [1965];National Union Fire Ins. Co. of Pittsburgh v. Davis, Wright, Todd, Reise & Jones, 157 A.D.2d 571, 572, 550 N.Y.S.2d 315 [1st Dept. 1990] ). Plaintiff's claim that the individual defendants, as agents of UBS Bahamas, committed a tort in New York in furtherance of a conspiracy is conclusory ( see e.g. Pramer S.C.A. v. Abaplus Intl. Corp., 76 A.D.3d 89, 97, 907 N.Y.S.2d 154 [1st Dept. 2010] ).
The court also properly found that UBS Bahamas is not subject to jurisdiction pursuant to CPLR 302(a)(3)(ii), since the allegedly wrongful disbursement of approximately $20 million was not an injury-causing event in New York, but, rather, a decision by a trustee in the Bahamas to authorize the release of funds from bank accounts in Switzerland. Plaintiff cannot establish injury in New York merely because she resides here ( see e.g. Magwitch, L.L.C. v. Pusser's Inc., 84 A.D.3d 529, 532, 923 N.Y.S.2d 455 [1st Dept. 2011],lv. denied18 N.Y.3d 803, 2012 WL 16428 [2012];Mid–Atlantic Residential Invs. Ltd. Partnership v. McGuire, 166 A.D.2d 205, 206–207, 560 N.Y.S.2d 431 [1st Dept. 1990] ).
Plaintiff failed to establish that essential jurisdictional facts may exist that are not presently known so as to warrant further jurisdictional discovery ( see Copp v. Ramirez, 62 A.D.3d 23, 31, 874 N.Y.S.2d 52 [1st Dept. 2009], lv. denied12 N.Y.3d 711, 2009 WL 1543926 [2009] ).
We have considered plaintiff's remaining contentions and find them unavailing.