| Magdalena v Lins |
| 2014 NY Slip Op 08782 [123 AD3d 600] |
| December 16, 2014 |
| Appellate Division, First Department |
[*1]
| Marcio Magdalena, Respondent, v EduardoLins et al., Appellants. |
Stroock & Stroock & Lavan LLP, New York (Michael A. Fernándezof counsel), for appellants.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered February 28,2014, which, to the extent appealed from as limited by the briefs, denied defendants'motion to dismiss the complaint for lack of personal jurisdiction and on forum nonconveniens grounds, unanimously reversed, on the law, with costs, and the motiongranted on the ground of lack of personal jurisdiction. The Clerk is directed to enterjudgment accordingly.
The court erroneously concluded that the parties had consented to jurisdiction inNew York based on a forum selection clause. It appears that the court conflated the oralfee sharing agreement between the parties (the fee sharing agreement), which is thesubject of the instant lawsuit and which contains no consent or forum selectionprovision, with a separate written fee sharing agreement between defendant GlendunPoint S.A. and an entity that is not a party to this lawsuit (the non-circumventionagreement), which contains the forum selection provision the court cited. Since plaintiffis neither a party to the non-circumvention agreement, which pre-dates the fee sharingagreement at issue, nor an intended third party beneficiary of that agreement, he cannotenforce its forum selection clause against defendants (see ComJet Aviation Mgt. vAviation Invs. Holdings, 303 AD2d 272 [1st Dept 2003]; see also PT. Bank MizuhoIndonesia v PT. Indah Kiat Pulp & Paper Corp., 25 AD3d 470 [1st Dept2006]).
There is no other basis for jurisdiction over either defendant. Among other things,there is no basis for general jurisdiction pursuant to CPLR 301, since Glendun is notincorporated in New York and does not have its principal place of business in New York(see Daimler AG v Bauman, 571 US &mdash, 134 S Ct 746, 760 [2014]).Similarly, no jurisdiction lies pursuant to CPLR 301 over Glendun's founder, defendantEduardo Lins. While Lins, a Brazilian national, owns an apartment in New York, he isnot domiciled there. His daughters regulary reside there. Lins resides and is domiciled inUruguay; New York is not his domicile (id.). Plaintiff cites insufficient facts todemonstrate any other basis for general jurisdiction over either defendant.
Nor is there any basis for long-arm jurisdiction (CPLR 302 [a] [1]). The recordshows that the parties negotiated and executed the fee sharing agreement while they wereout of the country, and it is not alleged that the agreement was performed or breached inNew York. Thus, no part of the transaction at issue occurred in New York (see Copp v Ramirez, 62 AD3d23, 28-29 [1st Dept 2009], lv denied 12 NY3d 711 [2009]; FinesurgicInc. v Davis, 148 AD2d 414 [2d Dept 1989], lv dismissed in part, denied inpart 74 NY2d 781 [1989]; see also Fischbarg v Doucet, 9 NY3d 375, 380[2007]).
[*2] As there is no jurisdiction overdefendants, we do not reach the forum non conveniens issue (see Wyser-Pratte Mgt. Co., Inc. vBabcock Borsig AG., 23 AD3d 269 [1st Dept 2005]).Concur—Mazzarelli, J.P., Andrias, Manzanet-Daniels, Feinman and Gische,JJ.