OPINION OF THE COURT
In this action, plaintiffs allege that defendants engaged in a highly sophisticated scheme to misappropriate plaintiffs’ interest in an alleged joint venture worth over $600 million. The complaint seeks recovery under theories of breach of contract, breach of fiduciary duty and various business torts. Defendants moved for dismissal pursuant to CPLR 3211 on various grounds, including documentary evidence and failure to state a cause of action, and, as to two of the defendants, lack of personal jurisdiction. The motion court dismissed each of the 33 causes of action contained in plaintiffs’ 180-page complaint, essentially adopting defendants’ arguments.
It bears repeating that, “[i]n the posture of defendants’ CPLR 3211 motion to dismiss, our task is to determine whether plaintiffs’ pleadings state a cause of action. The motion must be denied if from the pleadings’ four corners ‘factual allegations are discerned which taken together manifest any cause of action cognizable at law’ ” (511 W. 232nd Owners Corp. v Jennifer Realty Corp.,
We conclude that with respect to three of the causes of action, the motion court improperly rejected the factual allega
The Amended Verified Complaint
As alleged in the complaint, plaintiff David Elias, a British citizen, owns and controls plaintiff The Richbell Group Limited (Richbell), which owns, inter alia, plaintiff Richbell Information Services, Inc. (RIS). Through Richbell, Elias indirectly owned and controlled The Harpur Group Limited (Harpur), a business which by 1994 was worth $167 million.
Defendant Jupiter Partners (Jupiter), an investment firm, is a Delaware limited partnership. The remaining defendants are principals or general partners of Jupiter: defendants Ganymede and Europa are also Delaware limited partnerships, Europa being a general partner of Ganymede, which is a general partner of Jupiter. Defendants Sprague and Blumer are general partners of Europa and principals of Jupiter.
Defendant RIT Capital Partners (RIT) is a United Kingdom investment company chaired by Lord Rothschild. Defendant Atlantic and General Investment Trust (AGIT) is a United Kingdom wholly owned subsidiary of RIT.
Plaintiffs allege that in 1994 they contributed their equity interests in Harpur, and defendants Jupiter and RIT contributed cash, and they formed H-G Holdings, Inc. (H-G) as a corporate vehicle to carry out a joint venture to acquire Gelco Payment Systems, Inc. (Gelco) and combine it with Harpur.
Specifically, in the spring of 1994, Elias approached RIT to find a United States financial partner to join in acquiring Gelco Payments Systems, Inc., a United States company in the business of expense and payment processing and management information services. A deadline of July 8, 1994 had been set by Gelco’s seller for submission of offers to purchase.
In June 1994, Elias spoke with Jupiter’s principals, Sprague and Blumer. The parameters of the deal for the acquisition of Gelco were that plaintiffs would contribute their equity interests in Harpur, that defendants Jupiter and RIT would contribute cash, and that a holding company named H-G Holdings, Inc. would be formed as the corporate vehicle to carry out a joint venture to acquire Gelco and combine it with Harpur. Under this alleged agreement, each side would contribute prop
At a July 6,1994 meeting, Elias proposed that Jupiter invest $80.5 million and that the venture borrow an additional $100 million. Jupiter, through Sprague, said there was not enough time to obtain the bank loan prior to the acquisition, but assured Elias such amount could be borrowed later and distributed to shareholders as a return of capital.
Plaintiffs allege that Jupiter knew that, without the bank loan at the inception of the joint venture, Richbell would not have enough cash to pay its liabilities going forward, and that Jupiter intended to structure the transaction to keep Richbell in debt so it would later be vulnerable to defendants’ predatory tactics.
It is alleged that Jupiter agreed to participate in the H-G joint venture based on terms Elias had outlined in a July 6 memo; Sprague said he would send a term sheet memorializing what had been agreed upon at the meeting.
On July 8, Richbell, acting in its own name but allegedly on behalf of the joint venture, made a binding offer to acquire Gelco for $65 million. Later that day, Jupiter wrote to Richbell, attaching a detailed “Preliminary Term Sheet” also dated July 8.
As characterized in the complaint, the letter stated that the attached “draft” term sheet is different from the deal structure outlined in the July 6 documents “in three critical respects.” The letter itself stated that the attached term sheet is “rather comprehensive” and “restates” many of the basic assumptions concerning the proposed sources and uses of funds for the transaction, but pointed out that it also included “certain provisions we did not talk about specifically yesterday but which are relatively standard for large minority blocks of this sort, such as * * * veto rights on major corporate transactions.”
The July 8 letter further stated that Jupiter anticipated being able to complete its due diligence over the next two weeks, and “propose [d] that our term sheet, once it is agreed to between us, become the basis of an agreement-in-principle.”
On July 22, Jupiter sent a new letter and preliminary term sheet. Unlike the July 8 letter, it expressly conditioned Jupiter’s assent upon a formal agreement:
“[0]ur willingness to complete the transactions contemplated by this letter is subject to the execu*292 tion of definitive agreements between us * * * . Except for [certain paragraphs] this letter is not and is not intended to be a legally binding agreement. Neither of us shall be liable to the other except as provided in such definitive agreements.”
On August 5, Jupiter sent Richbell a further revised term sheet, which, as characterized in the complaint, was “so different from the Term Sheet sent to Elias on July 8 as to constitute a different transaction.” The accompanying letter stated that the transaction was subject to a definitive agreement and was not intended to be binding.
Formal agreements were drawn up along the lines of this term sheet. Jupiter contributed $85 million (more than the amount initially proposed) and plaintiffs contributed their Harpur equity.
The parties formed a corporation, H-G, to hold their interests in the combined Harpur-Gelco; 95% was owned by the joint venturers or their nominees, and 5% by management that was not part of the joint venture.
On October 13, 1994, the parties entered into the H-G stockholder agreement; Richbell and Elias were not named parties, but claim interests therein through Elias-controlled entities as their nominees (first The Northington Group, later RIS).
The stockholder agreement provided for different classes of stock. Based on the differences, Jupiter’s investment was more conservative and Richbell-Elias’s had greater “upside potential.” (RIT was unaffected by the differences between the classes of stock, because it held equal numbers of each.) Jupiter would get an extra share of the return if under 41% growth was achieved, and Richbell would get a return of its capital only if 41% growth was achieved. This protected Jupiter if Elias did not manage the business as successfully as was hoped and rewarded Elias if he achieved a higher level of performance. However, upon certain “realization” events, such as an initial public offering (IPO), Richbell stood to receive a much higher percentage of the gain.
Section 3.2 of the stockholder agreement required Jupiter’s consent for an IPO of H-G stock. Before signing it, Sprague allegedly told Elias that this veto right, first added by the July 8 letter and term sheet, was merely for defensive purposes, since Elias would be managing the company on a day-to-day basis and Jupiter would not. Sprague allegedly assured Elias that Jupiter would never use its veto rights in an unfair or exploitative way, but only for its own protection.
The stockholder agreement contained a merger clause: It was the entire agreement between the parties, superseding all prior agreements, written or oral, with respect to its subject matter (§ 10.7) and could be amended only by writings signed by the parties (§ 10.3).
The Gelco closing took place October 13, 1994. The parties then valued the combined Harpur-Gelco at $261 million.
As a result of its success, H-G had investment bankers begin work on an IPO. In late March 1996, the bankers allegedly valued H-G at $415-650 million. As revealed in one of their reports, Jupiter was already telling the bankers that Elias would no longer be managing the business and would be selling his stock.
Certain Richbell investors had purchased “loan stock” giving them equity in Richbell and the right to redeem it. The increase in value caused many to seek redemption, leading to a liquidity problem for Richbell.
Aware of Richbell’s problem, of its apparent eagerness to proceed with an IPO, and mindful as well of Richbell’s potential bonus, it is alleged that Jupiter decided to use its IPO veto right as leverage to obtain a larger share of profits. It invoked this right, despite having expressly stated that an IPO was in H-G’s best interests.
Richbell could not raise cash by other means. Jupiter also had veto power over the sale of shares and share-collateralized borrowing, and blocked Richbell from borrowing from anyone other than RIT.
In April 1996, Jupiter, RIT and plaintiffs reached an agreement. Plaintiffs were given the liquidity they sought and it was agreed the IPO would proceed by January 1997.
Jupiter exacted a steep price: RIT (through its AGIT subsidiary) would extend to plaintiffs a $30 million loan at 25% interest (the AGIT note), secured by all of plaintiffs’ H-G shares and due December 31, 1997 (one year after the IPO was scheduled); Elias would resign as H-G’s CEO; plaintiffs would cede to
This agreement was memorialized in an April 18, 1996 “Memo of Understanding” from RIT’s Paul Griffiths to Elias and Sprague. It is not signed by representatives of Jupiter or any of the defendants, other than RIT.
On April 21, Griffiths took Elias aside to review the memo, repeatedly assuring him RIT would use its “best efforts” to ensure Jupiter’s compliance with its representations. Allegedly, these assurances were false, with Griffiths acting as Jupiter’s agent to induce Elias’s assent; in reality, Jupiter never intended to comply. Moreover, plaintiffs contend, these discussions constituted a separately enforceable oral contract by RIT to use its “best efforts” to obtain Jupiter’s compliance by voting its stock and its position on H-G’s board.
The AGIT note was executed on April 22, 1996. It provided that it was to be governed by English law. Though denominated by plaintiffs a “bridge” loan, repayment was not contingent upon the occurrence of any future event (such as an IPO).
Plaintiffs performed their part of the April 1996 agreement, reducing their share in H-G and pledging their H-G interest as loan collateral; Elias resigned as CEO. However, it is alleged that defendants orchestrated a default on the note in order to buy plaintiffs’ H-G stock at an artificially low price. They allegedly intended to breach the agreement and block the IPO, thereby depriving plaintiffs of funds to repay the AGIT note, inducing a default and foreclosing on the pledged H-G stock.
Unbeknownst to plaintiffs, defendants had entered into a “bid rigging agreement” in September 1996 (memorialized in a January 31, 1997 written agreement among Jupiter, RIT and AGIT) to ensure plaintiffs’ default so that defendants would obtain their H-G shares. Jupiter and RIT allegedly agreed to block any IPO, and then participate in a collusive foreclosure sale in which they would bid no more than the $30 million loan amount (though the collateral was worth much more) and split the true value of plaintiffs’ shares.
Thus, under this “secret” agreement, RIT agreed that, in the event of default on the note, Jupiter would purchase a portion of the note in exchange for the right to control the foreclosure and then to vote the Richbell shares in H-G and designate RIT’s nominee to H-G’s board. If the collateral was insufficient to cover the debt to RIT, Jupiter would insure any shortfall to RIT by making up the difference between the actual value of
Richbell would be entitled to any surplus above the amount of the debt. Plaintiffs allege that, to ensure nothing would be left for Richbell, Jupiter and RIT decided to keep the foreclosure sale price for Richbell’s pledged shares artificially low by agreeing that it would not exceed the debt. In other words, they would recoup actual value, but such value would not be reflected in the sale price so there would be no “surplus” for purposes of the debtor.
Prior to the maturity date of the $30 million AGIT note, Jupiter and RIT caused H-G to agree to sell over $200 million worth of Harpur assets, but they deliberately delayed the closing until after the loan was due and then refused to give plaintiffs their share of the sale proceeds.
Under the shareholder agreement, the sale of such assets was to be included in calculating the venture’s profits, resulting in an increased rate of return entitling plaintiffs to a bonus profit; it also increased the value of plaintiffs’ pledged stock, allegedly well beyond the amount of the loan. The refusal to provide these funds, combined with defendants’ continued refusal to do an IPO, prevented plaintiffs from repaying the $30 million and realizing any value for their interests.
In April 1997, Harpur brought a winding-up petition in England based on Richbell’s default on the Northington note. In May 1977 AGIT thereafter declared a default on the AGIT note, and in March 1998, AGIT transferred to itself Richbell’s shares in H-G, without notice to Richbell. Ultimately, in May 1998, AGIT brought a winding-up petition against plaintiff Richbell Information Services, Inc., the Elias-controlled nominee of Richbell under the H-G stockholders’ agreement. As this Court has previously noted, all three plaintiffs were forced into bankruptcy in the United Kingdom (see
The complaint seeks relief under numerous theories:
Breach of fiduciary duty: Plaintiffs maintain that Jupiter and RIT were fellow joint venturers with plaintiffs in forming H-G to acquire Gelco, and owed plaintiffs fiduciary duties; they were also shareholders in a closely held corporation, H-G, and owed fiduciary duties on that basis. Jupiter’s and RIT’s actions
Breach of contract: Defendants breached the April 1996 agreement and the 1996 RIT agreement by failing to use their best efforts to launch an IPO.
Breach of implied covenant of good faith: Defendants acted in bad faith in denying plaintiffs the benefits of the H-G stockholders agreement by depriving plaintiffs of their interest in H-G.
Promissory estoppel: The promises made by defendants in April 1996 induced plaintiffs’ reasonable reliance. (Richbell also asserts that estoppel arises from its reliance on the alleged July 6, 1994 agreement.)
Fraud: Plaintiffs relied to their detriment on defendants’ false representations.
Foreclosure Bid Rigging: The collusive plan to cause plaintiffs’ default on the AGIT note and make a low bid for the pledged H-G shares upon foreclosure constituted fraud, breach of fiduciary duty, breach of the implied covenant of good faith and breach of a secured creditor’s duties toward its debtor.
Conversion: The alleged misappropriation of plaintiffs’ interest in H-G constituted conversion.
Discussion
Joint Venture
The court held that the pleadings did not establish the existence of a joint venture, so no fiduciary obligations arose. It also reviewed the documentary evidence submitted by defendants and concluded that it demonstrated the absence of a joint venture. In particular, the court found that, at the time of the bid to purchase Gelco in July 1994, there were only preliminary nonbinding negotiations. Even the formation of H-G did not evince a joint venture, it held, because the negotiations to that point were adversarial and the parties structured H-G specifically to protect each side from the other.
Further, the court concluded that the shareholder agreement failed to establish a joint venture, finding that, at most, it showed an agreement to share proceeds, and, rather than providing for the sharing of losses, it gave Jupiter special protection in case of underperformance. Also, because the shareholder agreement does not reflect that the parties reserved any rights for the alleged joint venture to exercise in
The motion court further ruled that no fiduciary duties arose from the parties’ relationship as shareholders in the closely held corporation, H-G. It reasoned that, while a fiduciary relationship may arise where the shareholders act as de facto partners, it does not arise where, as here, they lack a close working relationship.
Finally, the court found that, even if, arguendo, there were a fiduciary relationship, the allegations of misconduct did not amount to a breach. Defendants were not obligated to exercise their contractual rights in a manner that would accommodate plaintiffs’ financial difficulties.
The motion court correctly determined that the parties were not members of a joint venture by virtue of express written agreements. The July 8 letter referred to Jupiter’s as yet uncompleted due diligence, and used language reflecting that an agreement might be reached at some time in the future, but had not been reached so far and, moreover, referred to the attached term sheet as a “draft”; the term sheet itself was labeled “preliminary.” This is a classic example of an unenforceable “mere agreement to agree.” Indeed, we recognize that term sheets, such as those used here, will not support a claim of breach of contract or of the duty of good faith (Kreiss v McCown DeLeeuw & Co.,
Nevertheless, the court erred in dismissing the first and second causes of action, premised on the breach of a fiduciary duty created by the joint venture. While the documents do not establish an express agreement to form a joint venture, nor do they “utterly refute [ ] plaintiffs factual allegations, conclusively establishing a defense as a matter of law” (see Goshen v Mutual Life Ins. Co.,
The complaint adequately sets forth the requisite indicia of a joint venture based upon the implied agreement evidenced by the parties’ conduct.
Notably, although the motion court asserted that Elias was acting solely on behalf of one of his own companies when he submitted the bid for Gelco, the complaint alleges that Richbell was acting on behalf of the joint venture, based upon, and in reliance upon, Jupiter’s and RIT’s agreements to participate in it. Even where the parties acknowledge that they intend to hammer out details of an agreement subsequently, a preliminary agreement may be binding (see Teachers Ins. & Annuity Assn. of Am. v Tribune Co.,
The intended joint control of the joint venture is sufficiently pleaded by the assertion that the coventurers each were given ownership or control of H-G stock; the joint contribution of property to the venture is supported by Richbell’s contribution of Harpur and Elias’s management skills, and Jupiter’s contribution of $85 million in investment capital. Similarly, the agreement to share profits and losses was sufficiently alleged, since we reject defendants’ contention that a joint venture requires an equal sharing.
To require complete equality among members of a joint venture with respect to each of its required elements would be taking a significant legal step backward by depriving this business form of its raison d’étre, i.e., flexibility as partnership for a limited purpose (see Gramercy Equities Corp. v Dumont,
Thus, while Jupiter maintains that it was cushioned through the share structure from the full effect of losses, so that, in the words of the motion court, there was a “lack of commonality of interest,” this does not mean that there was no possibility of its taking a loss or that it did not agree to do so. There is no merit to its position that the interests of the joint venturers are required to be “sufficiently aligned” to impose a fiduciary relationship.
Indeed, the Court of Appeals’ use of the phrase “community of interest” 45 years ago in the leading case of Matter of Steinbeck v Gerosa (
Similarly, it is not required that each joint venturer actually exercise the same degree of management control. While Elias was the day-to-day manager, this does not mean plaintiffs had total management control; this was particularly so after the parties decided to operate the joint venture through H-G, in which control was vested in a board on which each side held seats. The inquiry as to the existence of this factor is limited to whether a member of the venture had any measure of control (see e.g. De Vito v Pokoik,
Did Formation of the Corporation End the Joint Venture?
Jupiter contends that, assuming, arguendo, a joint venture existed prior to the Gelco closing, it necessarily terminated upon the formation of H-G. We disagree.
While case law exists standing for the proposition that a joint venture ceases to exist when the parties form a corporation to carry out one or more of its objectives (see Sagamore Corp. v Diamond W. Energy Corp., 806 F2d 373 [1986]), the language in Sagamore that the parties must have “reserved” certain rights, inter se, in order for the joint venture to continue to exist, appears unnecessarily restrictive, serving no prophylactic or remedial purpose. We view as a better approach that of the Third Department in Blank v Blank (
Fiduciary Duties as Shareholder of Closely Held Corporation
Although we find sufficient basis to permit plaintiffs to plead that Jupiter has fiduciary obligations as a joint venturer, we address in the alternative the claim that Jupiter also owed plaintiffs fiduciary duties in its capacity as a shareholder in the closely held H-G. We conclude that sufficient facts have been alleged to hold Jupiter to fiduciary obligations in this respect as well.
A majority shareholder in a close corporation is in a fiduciary relationship with the minority (see Barbour v Knecht,
But this argument misrepresents the holding in Rosiny. Although this Court stressed there that the corporation’s type of business did not involve a close working relationship among the shareholders, the holding was not that there was no fiduciary relationship, but, rather, that the parameters of the resulting duty did not require a shareholder to explain the agreement’s buyout provision to another.
In contrast to the line of cases upon which Jupiter relies, plaintiffs are not claiming they had certain rights under the shareholder agreement and are not seeking relief relating to the governance of H-G. For example, in Hart v General Motors Corp. (
Here, however, there is no issue with respect to the corporate governance of H-G. The issues regarding Jupiter’s alleged misconduct relate to its alleged abuse of rights, in which the fact that a corporate entity was involved was only incidental; there is no legal question as to the meaning of a corporate document, the parties’ express rights thereunder or what the corporation qua corporation may or may not do. Thus, Delaware law should not govern the issue here.
In any event, under Delaware law as well, a controlling shareholder owes a fiduciary duty to other shareholders (see Ivanhoe Partners v Newmont Min. Corp.,
Breach of Fiduciary Duty
Assuming arguendo there was a fiduciary relationship and resulting obligations, Jupiter questions whether there was any breach because it “had no duty to accommodate” plaintiffs as they faced financial difficulties by allowing them to proceed with an IPO. This argument relies upon the absence from the stockholder agreement of any explicit limitation on Jupiter’s right to veto any IPO.
This limitation on an apparently unfettered contract right may be grounded either on the construction of the parties’ fiduciary obligations (see Wilf v Halpern,
Jupiter urges the rigorous application of the rule in Murphy v American Home Prods. Corp. (
As previously discussed, because it is alleged that Jupiter invoked its veto power over the IPO for an illegitimate purpose and in bad faith, the third cause of action, alleging bad faith breach of the H-G stockholder agreement based on this allegation, is viable.
Whether the bad motive imputed to Jupiter was its actual motive is an issue of intent generally left to the trier of fact (see Matter of Kaszirer v Kaszirer,
Breach of Agreement to Use “Best Efforts” to Launch IPO
Supreme Court correctly dismissed plaintiffs’ claim that Jupiter and RIT breached an April 1996 agreement by failing to use their best efforts to launch an IPO: it was a mere agreement to agree, intent to be bound was not adequately pleaded, and the terms of the alleged agreement were too vague to be enforced.
Clearly, the April 18 “memo of understanding” contains nonbinding-type language in that the issues were only “agreed to in principle” and several points are phrased as proposals that depended on obtaining concessions from Elias. Moreover, the material terms of the IPO were not set forth; the document was no more than a status report.
The alleged part performance, in that the $30 million loan to Richbell was made under the identical terms set forth in the memo, is not evidence of an intent to be bound by the memo and did not cure any indefiniteness, since such performance of that portion of the memo is not unequivocally referable to the alleged obligation to go forward with an IPO that plaintiffs seek to enforce.
The memo itself does not use the phrase “best efforts.” Plaintiffs seek to engraft the obligation to use “best efforts” onto Jupiter’s alleged agreement to bring about an IPO based upon Griffiths’s alleged oral assurances to Elias. This cannot
Thus, the combination of the memo and the oral assurances does not raise a question of fact as to whether plaintiffs and Jupiter reached an agreement or a binding preliminary agreement giving rise to a duty to negotiate in good faith (compare SNC, Ltd. v Famine Eng’g & Mech. Contr. Co.,
Promissory Estoppel
Nor, as the motion court correctly determined, did plaintiffs adequately allege they reasonably relied on the alleged promise to proceed with an IPO. The alleged promise, based on the terms of the alleged April 1996 agreement, was too indefinite to be the type of clear and unambiguous promise required for promissory estoppel (see Tsabbar v Auld,
RIT Breach of Separate Agreements
Supreme Court correctly dismissed the claim that, on April 21 when RIT director Griffiths reviewed the April 18 memo of understanding with Elias and allegedly pledged his “best efforts” to ensure that Jupiter would comply with its promises, his assurances as to each item in the memo constituted a separately enforceable oral contract. This claim merely restates the inadequate claim for breach of the memo of understanding.
However, contrary to Jupiter’s contention, it was not impossible for RIT to perform. It was not necessary for RIT to control Jupiter in order for RIT to use its best efforts to attempt to get Jupiter to proceed with the IPO; an attempt was all that was called for, not coercion, and certainly persuasion was within RIT’s ken.
The motion court properly dismissed plaintiffs’ claim that HIT and AGIT breached the terms of the $30 million promissory note because the note was predicated on the implied understanding and covenant of good faith to work toward the IPO. This claim amounts to a mere rehashing of plaintiffs’ inadequate claims for breach of the April 1996 memo of understanding.
In any event, Richbell’s inability to pay the note was not rendered impossible (see Kel Kim Corp. v Central Mkts.,
Fraud
The motion court correctly dismissed the twelfth cause of action for fraud, because reliance on the contingent future event of an IPO was not reasonable, the representation was inconsistent with specific recitals in the stockholder agreement, and there was a merger clause disclaiming reliance on extrinsic representations.
Moreover, while a false statement of intention can be sufficient to support a claim of fraud (see Graubard Mollen Dannett & Horowitz v Moskovitz,
Plaintiffs alleged that the planned collusive foreclosure violated Richbell’s rights as pledgor of the collateral because the secured creditors are statutorily mandated to dispose of the collateral in a “commercially reasonable” manner. Supreme Court dismissed this claim as both duplicative of the other claims and premature.
Certainly it was premature. While the wrong may be based on events that take place prior to the disposition of the collateral, the cause of action is not ripe for adjudication until the wronged party is injured. Here, plaintiffs concede they are referring to a future foreclosure sale; it is undisputed that none has taken place. Notably, no injunctive relief or other provisional relief is sought in this context.
Conversion
Richbell’s twenty-third cause of action, for conversion, while satisfying the technical elements of that tort (see Imprimis Invs. v Insight Venture Mgt.,
Elias’s Claim for Fraudulent Inducement
The motion court properly dismissed Elias’s claims for fraudulent inducement of the stockholders agreement, the Northington note (fifth cause of action) and the AGIT note (twelfth cause of action), because he was not, individually, a party to any of those documents. While the corporate veil may be pierced for the benefit of those suing a corporation, it will not be pierced in the reverse manner for the benefit of the corporation or its individual shareholders (see Uribe v Merchants Bank of N.Y.,
Elias’s conclusory allegation that he was an intended beneficiary of the corporate agreements (see Bogan v Northwestern Mut. Life Ins. Co.,
Elias’s present attempt to reconfigure his claims by asserting that he was induced to take “certain actions to his detriment” other than entering into the agreements should not revive them.
Jurisdiction Over AGIT
Defendant AGIT, a British domiciliary, moved to dismiss on the grounds asserted by the other defendants as well as for, inter alia, lack of personal jurisdiction. In support of the jurisdiction argument, AGIT submitted the affidavit of a director, Duncan Budge, who averred that he was a director of both AGIT and RIT located at the same London address; that AGIT did not have any office, phone listing, mailing address, bank account, authorized agent, subsidiary or employee in New York; that it did not own any real property in New York; that it did not have authority to do business in New York; and that it never litigated in New York, other than this action.
He further averred that AGIT and RIT are separate companies, and he was the only director they had in common. He denied that either was agent of the other.
Budge also averred that Paul Griffiths had been the RIT employee with primary responsibility for monitoring the investment in H-G; in February 1997, Budge took over this responsibility. Budge denied traveling to New York in any connection since that time.
Paul Griffiths also submitted an affidavit in support of jurisdictional dismissal, averring that he had been employed by RIT, but never by AGIT. He, too, denied that the two entities were each other’s agents.
Griffiths described his contacts with New York: From 1995-1997, he traveled to New York on behalf of RIT a number of times with regard to the H-G investment, but on no occasion as a representative of AGIT. Once, he was in New York to discuss with Jupiter documentation of the Richbell loan, but most of the discussions were by telephone from England. Griffiths admitted he had signed the loan agreement on behalf of AGIT (in England), but this was the only time he was ever authorized to act on its behalf.
This determination was correct. Jurisdiction over AGIT was predicated solely on CPLR 302 “transaction” of business or long arm jurisdiction for commission of a tort in this state, not for “doing business” under CPLR 301. However, there was no purposeful activity alleged as to AGIT establishing a substantial nexus between the business transacted and the cause of action (see Liberatore v Calvino,
While Griffiths was an agent of AGIT on one occasion when he signed the note on its behalf in England, it is not alleged that he performed any acts in New York that give rise to any of the claims against AGIT. For “transaction of business” there must be a substantial relationship between the transaction and the claim asserted (Kreutter v McFadden Oil Corp.,
Plaintiffs’ Appeal as to Defendants H-G and Harpur
Although plaintiffs are technically pursuing this appeal with respect to their dismissed claims against H-G, their briefs are silent with respect to this defendant. Under the circumstances, the appeal is dismissed as abandoned with respect to the causes of action asserted against H-G (see Matter of East Harlem Bus. & Residence Alliance v Empire State Dev. Corp.,
Accordingly, the judgment of the Supreme Court, New York County (Karla Moskowitz, J.), entered March 15, 2002, which dismissed the action, bringing up for review an order, same court and Justice, entered March 11, 2002, which granted defendants’ motions to dismiss the complaint, should be modified, on the law, to the extent of reinstating the first and second causes of action, for breach of fiduciary duty, and the third cause of action, for breach of contract, except as against defendant H-G Holdings, Inc., and otherwise affirmed, without costs. Plaintiffs’ appeal as against H-G should be dismissed, without costs.
Tom, J.P., Rosenberger, Lerner and Marlow, JJ., concur.
Judgment, Supreme Court, New York County, entered March 15, 2002, modified, on the law, to the extent of reinstating the first, second and third causes of action, except as against defendant H-G Holdings, Inc., and otherwise affirmed, without costs. Plaintiffs’ appeal as against H-G Holdings, Inc., dismissed, without costs.