Adriana Development Corp. v. Gaspar

81 A.D.2d 235, 439 N.Y.S.2d 927, 1981 N.Y. App. Div. LEXIS 10519
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJune 16, 1981
StatusPublished
Cited by4 cases

This text of 81 A.D.2d 235 (Adriana Development Corp. v. Gaspar) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adriana Development Corp. v. Gaspar, 81 A.D.2d 235, 439 N.Y.S.2d 927, 1981 N.Y. App. Div. LEXIS 10519 (N.Y. Ct. App. 1981).

Opinion

OPINION OF THE COURT

Silverman, J.

This consolidated action involves essentially a claim by Otto Gaspar, plaintiff in Action No. 2 (Gaspar v Adriana Dev. Corp. N.V.) and defendant in Action No. 1 (Adriana Dev. Corp. N.V. v Gaspar) to an interest in certain real property or to the stock of corporations owning that real property.

The appeals are from orders of Special Term denying the motion of plaintiff Adriana in Action No. 1 for summary judgment, and denying the motion of Adriana and certain other defendants in Action No. 2 to dismiss that action on various grounds.

Action No. 1 is an action to determine title to real property under RPAPL article 15. The real property involved is an office building at 300 East 42nd Street, in the Borough of Manhattan, City of New York. The real property was originally acquired early in 1977 by defendant Gaspar as agent for undisclosed principals (presumably Ingrid Graf and members of her family, and perhaps defendant Gaspar). However, by agreement of all parties the real property was transferred in 1977 to plaintiff Adriana [237]*237Development Corp. N.V., a corporation organized under the laws of the Netherlands Antilles, and authorized to do business in the State of New York. The stock of Adriana was in turn owned by Ross Investments Ltd., a Cayman Islands corporation, whose stock in turn was owned by Ingrid Graf. Adriana gave defendant Gaspar a power of attorney dated October 13, 1977 granting him powers to act for it with respect, among other things, to the sale, assignment or transfer of real property. However, disputes arose between the parties and Adriana revoked that power of attorney on May 28, 1979, and instead issued a new power of attorney to defendant Gaspar and one Zoltán Raj nay, an employee of the Graf family, as attorneys in fact, with limited administrative powers only. Defendant Gaspar explicitly approved this joint power of attorney. Almost a year later on March 31, 1980, defendant Gaspar acting alone executed and caused to be recorded a deed of the property from plaintiff Adriana to “otto gaspar, Agent”. Defendant Gaspar executed this deed purportedly as attorney in fact for Adriana. Defendant Gaspar had no legal power to execute this deed: (a) The power of attorney running to him individually had been revoked. Under the successor joint power of attorney, defendant Gaspar could not act alone, and in any event, that power of attorney did not include a power to transfer realty, (b) Even a general power to an agent does not include the power to convey his principal’s property to himself. (Wen Kroy Realty Co. v Public Nat. Bank & Trust Co. of N. Y., 260 NY 84, 90.) Accordingly, the deed should be declared void and should be expunged from the records of the City Register.

Defendant’s answer in Action No. 1 contains a counterclaim which requests judgment determining that he is owner in fee of the property. However, it appears without dispute that the ownership of the real property was transferred to Adriana by consent of all parties, apparently at the initiative of defendant Gaspar, and no one suggests any impropriety about that branch of the transaction. That defendant Gaspar claims an interest in the stock of either Adriana or its parent corporation Ross Investments Ltd., in no way alters the ownership of the real property by ' Adriana. Accordingly, insofar as ownership or any interest [238]*238in the real property qua real property is concerned, defendant Gaspar has no valid claim thereto, and plaintiff’s motion for summary judgment, in Action No. 1, should have been granted.

There remains the question, presented by Action No. 2, of whether Gaspar has a right or interest to some or all of the stock of either Adriana or Ross. Otto Gaspar is the plaintiff in Action No. 2. Defendants named in that action include Adriana Development Corp. N.V., Ross Investments Ltd., Ingrid Graf, and apparently two members of the Graf family, Gertraud Seibold and Brigitte Graf. In that action Gaspar claims a 20 % interest in the real property and “in addition or in the alternative” 20% of the stock of Adriana and/or Ross.

An important and perhaps insuperable difficulty in Action No. 2 is that this court has no jurisdiction of the person of any of the individual defendants'. The individual defendants have established by their own affidavits that they are not residents of New York; that they are not doing business in New York; that they own no property in New York; and that they have not been served with process in New York. No evidence has been submitted to the contrary. Accordingly, at least as to those defendants, the action must be dismissed insofar as it rests on jurisdiction of the person.

• Clearly, the courts of New York have jurisdiction over the person as to Adriana, which is qualified to do business in New York. There is a serious question whether the New York courts have jurisdiction over the person as to defendant Ross Investments Ltd., whose only contact with New York is that it owns the stock of Adriana, which in turn owns real property in New York. In general the fact that a parent corporation owns all the stock of a subsidiary corporation which is doing business in a State does not in and of itself subject the parent corporation to jurisdiction of the person by that State. (Restatement, Conflict of Laws 2d, § 52, comment b.) But here we have a somewhat closer situation. Ross apparently has no assets or business other than the stock of Adriana; the directors of Adriana are Corporate Agents N.V. (apparently a corporate service company) and Mr. Mehnert, a Montreal notary who appears to have played a role in his professional capacity as [239]*239to most of the relevant documents; Mr. Mehnert is also a director of Ross; whether Ross has additional directors or officers is not clear. We are not prepared on the present proofs before us to say whether Ross’ relationship to Adriana is such as to subject Ross to jurisdiction of the person by New York. However, in the light of the discussion which follows, it is unnecessary for us to determine that question at this time.

As we have said, Gaspar is not entitled to an interest in the realty as such. In our view the remaining dispute— as to his claimed interest in the stock of Ross (or Adriana) —should, under the doctrine of forum non conveniens, not be determined in the courts of New York. That doctrine has been codified in New York in CPLR 327 as follows:

“Rule 327. Inconvenient forum. When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action.” We now discuss the considerations relevant to the application of that doctrine:

It would appear to us that at least as relates to an interest in the stock of Ross, the contacts with Germany far outweigh the relevant contacts with any other jurisdiction, and particularly with New York.

As to New York, it is clear that no agreements between the parties were made in New York. The only contact with New York is that that is where the real property is located. While, of course, ownership of real property should be determined by the court of the place where the real property is located, we have determined that ownership. We are concerned with an interest in stock.

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Bluebook (online)
81 A.D.2d 235, 439 N.Y.S.2d 927, 1981 N.Y. App. Div. LEXIS 10519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adriana-development-corp-v-gaspar-nyappdiv-1981.