| Uzan v Telsim Mobil Telekomunikasyon Hizmetleri A.S. |
| 2008 NY Slip Op 04276 [51 AD3d 476] |
| May 8, 2008 |
| Appellate Division, First Department |
| Cem Cengiz Uzan, Appellant, v Telsim MobilTelekomunikasyon Hizmetleri A.S. et al., Respondents. |
—[*1] Salans, New York (Claude D. Montgomery of counsel), for respondents.
Judgment, Supreme Court, New York County (Charles E. Ramos, J.), entered November 14,2007, in defendants' favor, unanimously affirmed, with costs.
Plaintiff—a shareholder and former officer of defendant Telsim (a Turkishtelecommunications company)—was one of the defendants in Motorola Credit Corp. vUzan (274 F Supp 2d 481 [SD NY 2003], affd in part and vacated in part 388 F3d 39[2d Cir 2004], cert denied 544 US 1044 [2005]), wherein a very large judgment wasentered against him. He brought the instant action against Telsim for contribution andindemnification, asserting various tort claims against the remaining defendants (the Telsimdirectors).
The motion court properly dismissed this action for lack of personal jurisdiction (seeCPLR 3211 [a] [8]). Plaintiff contends that New York has general jurisdiction over Telsim(CPLR 301), and hence, the relevant time period is "the time when the action was commenced"(Lancaster v Colonial Motor Frgt. Line, 177 AD2d 152, 156 [1992]). Most of the pointson which plaintiff relies, such as Telsim's defense of an action in United States District Court forthe Southern District of New York and its negotiation of a loan with the New York branch of aSwiss bank, predate the commencement of this action. Simply defending an action does notconstitute "doing business" (Business Corporation Law § 1301 [b] [1]; see Andros Cia.Maritima S.A. v Intertanker Ltd., 714 F Supp 669, 675 [SD NY 1989]). The equipmentpurchase and finance agreements that Telsim entered into predate this action, and they havenothing to do with New York: the other parties were non-New York corporations, the agreementswere for the purchase of equipment to be used in Turkey, governed by Swiss law, and called forarbitration in Switzerland. Plaintiff does not allege when Telsim entered into roamingagreements, nor does he allege any connection with New York. In any event, roaming agreementsdo not constitute doing business for the purpose of conferring general jurisdiction (see Estateof Ungar v Palestinian Auth., 400 F Supp 2d 541, 551 [SD NY 2005]). In sum, plaintiff hasfailed to show that as of the commencement of this action, Telsim was engaged in "a continuousand systematic course [*2]of 'doing business' " in this state(see Landoil Resources Corp. v Alexander & Alexander Servs., 77 NY2d 28, 33 [1990]).
Plaintiff contends that New York has specific (i.e., long-arm) jurisdiction over the remainingdefendants pursuant to CPLR 302 (a) (3) (ii). He claims he was injured within this state when theTelsim directors prevented him from satisfying the Motorola judgment by procuring anorder of the Southern District Court for his arrest should he enter the state. This argument hastwo flaws. First, "the situs of the injury for long-arm purposes is where the event giving rise tothe injury occurred, not where the resultant damages occurred" (Marie v Altshuler, 30 AD3d 271,272 [2006]). The Telsim directors' post-August 2005 refusal to grant a constructive trust overTelsim's shares occurred in Turkey, not New York. Second, the federal court did not orderplaintiff arrested as a result of the Telsim directors' actions; that order was based partly on thelitigation activities of plaintiff and his family in Turkey (see Motorola, 274 F Supp 2d481 [2003]; Motorola Credit Corp. v Uzan, 2003 WL 56998, 2003 US Dist LEXIS 111[SD NY 2003]). To the extent the arrest order was based on plaintiff's failure to deposit certainTelsim shares into the court's registry, it was on May 9, 2002 that the court ordered plaintiff todeposit the shares (see Motorola Credit Corp. v Uzan, 322 F3d 130, 134 [2d Cir 2003]),the arrest order was issued on July 31, 2003 (see Motorola, 274 F Supp 2d 481, 582[2003]), and the Telsim directors were not appointed until February 2004.
In light of our disposition, we need not reach the parties' remaining arguments.Concur—Lippman, P.J., Mazzarelli, Sweeny, Moskowitz and Renwick, JJ. [See2007 NY Slip Op 33539(U).]