| Merrill Lynch, Pierce, Fenner & Smith, Inc. v Global StratInc. |
| 2012 NY Slip Op 02598 [94 AD3d 491] |
| April 10, 2012 |
| Appellate Division, First Department |
| Merrill Lynch, Pierce, Fenner & Smith, Incorporated, et al.,Respondents-Appellants, v Global Strat Inc. et al., Defendants, and Ezequiel Nasser etal., Appellants-Respondents. (And Another Action.) |
—[*1] Bingham McCutchen LLP, New York (Kenneth I. Schacter of counsel), and Bressler, Amery& Ross, P.C., New York (Dominick F. Evangelista of counsel), forrespondents-appellants.
Judgment, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered August 9,2010, awarding plaintiffs the total sum of $99,013,769 as against the Nasser defendants,unanimously affirmed, with costs. Order, same court and J.H.O., entered January 31, 2011, whichgranted so much of defendants' motion as sought to dismiss the eighth cause of action and todismiss the complaint in its entirety as against Albert Nasser for lack of personal jurisdiction,unanimously modified, on the law, to deny the motion as to Albert Nasser, and the appealtherefrom otherwise dismissed, without costs, as academic.
In granting the motion to dismiss as against Albert Nasser for lack of personal jurisdiction,Supreme Court stated that it was vacating the judgment as against him. However, the judgmentin the record on appeal names Albert Nasser as a defendant from whom plaintiffs have recovery,and it is that judgment that we affirm. We find that plaintiffs made a prima facie showing thatAlbert is subject to jurisdiction in New York through evidence that in the first three months of2008, he actively traded in the New York-based Merrill Lynch accounts of Inversiones, hispersonal holding company, and that he participated by telephone in a March 2008 meeting withMerrill Lynch in New York concerning the trading activities at issue in this case (see Kreutterv McFadden Oil Corp., 71 NY2d 460, 467 [1988]; compare OneBeacon Am. Ins. Co. v Newmont Min. Corp., 82 AD3d554, 555 [2011] [no evidence that defendant exercised control over the corporation thatpurchased insurance policies issued by insurers with principal places of business in New York]).
The Nassers' repeated failure to comply with discovery deadlines or offer a reasonable excusefor their noncompliance with discovery requests, as well as their counsel's [*2]misrepresentations in open court as to the cause of one of theirviolations, give rise to an inference of willful and contumacious conduct warranting the entry ofjudgment against them (see TurkEximbank-Export Credit Bank of Turkey v Bicakcioglu, 81 AD3d 494 [2011]). TheNassers were appropriately warned that judgment would be entered against them if theirdiscovery responses were found by the Special Referee to be noncompliant with plaintiffs'requests (see id.; cf. Corner Realty 30/7 v Bernstein Mgt. Corp., 249 AD2d 191,194 [1998]). Concur—Tom, J.P., Andrias, Catterson, Richter and Abdus-Salaam, JJ.