Astier v. Ondimba

2024 NY Slip Op 30007

Opinion

Astier v Ondimba 2024 NY Slip Op 30007(U) January 2, 2024 Supreme Court, New York County Docket Number: Index No. 156010/2022 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 156010/2022 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/02/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NE\1/ YORK: PART 33M ---------------------X YAMILEE BONGO ASTIER, SASHA BONGO-ASTIER, IN DEX NO. 156010/2022

Plaintiffs, MOTION DATE 05/08/2023 - V - MOTION SEQ. NO. 003 PASCALINE MFERRI BONGO ONDIMBA, NESTA BONGO-PING, CHRI STOPHER BON G-PING, LYNN OTALY-SERGENT, MAEL JUNIOR OTALY-SERGENT, AMINISHA CORPORATION, PHARUS LLC, DECISION + ORl>ER ON MOTION Defendants. -----·---------------X

HON. MARY V ROSADO

The following e -filed documents, listed by NYSCEF document number (Motion 003) 18, 19, 20, 21, 22, 23,28,31,33, 35,36, 38,39,40, 41,42,43,44, 45, 46,47, 49, 50, 51 were read on this motion to/for DISMISSA L

Upon the foregoing documents, and after oral argument which occurred on August 29,

2023 where Kenneth Sussmanc, Esq. appeared for Plaintiffs Yamille Bongo Astier and Sasha

Bondo-Astier (together, " Plaintiffa"); Angelica Aminov, Esq. and Michael Grndberg, Esq.

appeared for Delendants Aminisha Corporation and Pharus I.LC (the "Corporate Defendants" );

and Alice Buttrick, Esq. and Jonathan P. Bach, Esq. appeared for Defendants Pascaline Mferri

Ilongo Ondimba, Nesta Bongo-Ping, Christopher Bong-Ping, Lynn Otaly-Sergent, and Mac!

Junior Ot.aly-Sergent (together, the " Individual Defendants"), the Ind ividual Defendants' motion

for an Order dismissing Plaintiffs' claims against them is granted. Plaintiff.~• cross-motion for

leave to file an amended complaint is denied.

[The remainder ofthis page is intentionally leJi h/ank l

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I. Background

Plaintiffa Yamille Bongo Astier and her daughter Sasha Bondo-Astier are alleged to he

the daughter and granddaughter, respectfully, of Omar 13ongo Ondimba (" President Ondimba"),

the former President of Ciahon (NYSC EF Doc. 35 at p. 5). Plaintiff.~ commenced this action

against the Individual Defendants and Corporate Defendants (collective ly, "Defendants") on July

19, 2022, claiming that after the death of President Ondimba, Defendants misappropriated funds

from President Ondimba' s Estate (the "Estate") that Plaintifls were entitled to (NYSCEF Doc.

I).

On May 8, 2023, the Individual Defendants brought the instant motion to dismiss

Plaintifh' claims against them on the grounds that ( I) disputes over a foreign estate do not

belong in this Court; (2) Plaintiffs lack standing to assert. claims on behalf of the Estate; (3) this

Court lacks personal jurisdiction over the Individual Defendants; (4) Plaintiffs foil to join

necessary parties; (5) Plaintiffs' claims are time-barred; (6) Plaintiffs fai l to state a claim; and (7)

Plaintiffs' claims should not proceed in this forum (NYSCEF Doc. 19). On June 23, 2023

Plaint iffs filed a cross-motion for leave to file an amended complaint (NYSCEF Doc. 38).

11. Discussion

a. Plaintiffs' Claims are Dismissed for Lack of Personal Jurisdiction

The Ind ividual Defendants move to dismiss Plaintiffs' Complaint pursuan t to CPI.R

32l l(a)(8) on the ground that this Court lacks personal jurisdiction over the Individual

Defendant,. \Vhere a defendant moves to dismiss pursuant to CPLR 32 11(a)(8), it is the

plai ntiff's burden to prove the court has jurisdiction (Copp v Ramirez, 62 AD3d 23, 28, 874 11 st

Dept 2009)). /\s discussed below, Plaintiffs have failed to meet their burden or demonstrating

that this Court has personal jurisdiction over the Individual Defendants.

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Preliminarily, Plainti ffs concede that this Cow1 does not have personal jurisdiction with

respect to Defendants Lynn Otaly-Scrgcnt and Mac! Junior Otaly-Sergcnt (NYSCEF Doc. 35 at

p. 8). Plainti ffs further concede that none of the Individual Defendants are domiciled in New

York (NYSCEf Doc. I at ii A at 4-5).

It is well established that "a court may not exercise personal jurisdiction over a

nondomiciliary unless two requirements are satisfied: the action is permissible under New

York's long-arm statute, and the exercise of j urisdicti on comports with due process" (English v

Avon Prods., Inc. , 206 AD3d 404, 405 fl st Dept 20221).

1. Plaintiff.~• Claims are not Pem1issible Under CPLR 302(a)

Pursumll to CPLR 302(a), a New York court may exercise personal jurisdiction over any

non-dom icil iary. or his executor or administrator, who in person or through an agem:

(1) transacts any business within the state or contracts anywhere to supply goods or services in the state; or (2) commits a tortious act within the state .. . ; or (3) commits a tortious act without the state causing injury to person or propen y wi thin the state ... i r he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (i i) expects or should reasonably expect the act to have consequences in the slate and derives substantial revenue from interstate or iuternational commerce; or (4) owns, uses or possesses any real property situated within the state.

Plaintiffs' Complaint contains no allegation that the Individual Defend,mts transact any

business in New York State, or engaged in any tortious act within New York State, or possess

any property in New York State. While Plaintiffs argue that the Compla int satisfies the e]eme11ts

ofCPLR 302(a)(J) with respect to Defendants Pascaline, Nesta and Christopher because "[t]he

injlll)' to Plaintiffs occurred in New York" and the alleged tortious acts "wo uld reasonably -he

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expected to have consequences to Plaintiffs in New York" (NYSCEF Doc. 35 at p . I 0), this

argument is unavailing.

lL is well established that, for the purposes ofCPLR 302(a)(3), "the situs of the injury is

the location of the original event which caused the injury, not the location wheJe the resultant

damages are subsequently felt" (Cotia (US'A) Ltd. v Lynn Steel Corp., 134 /\D3d 483,484 [1st

Dept 2015 J (internal citations omilled); see also Marie v Altshuler. 30 AD3d 271, 272 [1st Dept

2006j) (holding that " the ru.le that the situs of the injury for long-arm purposes is where the event

giving rise to the injury occurred, not where the resultant damages occurred, is not restricted to

medical malpractice or personal inj UI)' cases"). Fu1ther, Courts have firmly held that " the

residence or dom ici le of the injured party wi thin a State is not a su fficient predicate for

jurisdiction, which must be based upon a more direct injury within the State and a closer

expectation of consequences within the State than the indirect financial loss resulting from the

fact that the injured person resides or is domiciled there" (Fantis Foods, Inc. v Standard

Importing Co. 49 NY2d 317, 326 (I 980]; see also, (/III 1i-inity Apex lnvs. LLC v Smith,

Anderson, JJlount, JJorsett, Mitchell & .Jernigan, L J,. P , 210 AD3d 474, 476 [ I st Dept 2022])

(holding that " Plainti ffs' reliance on [an] alleged exto1tion as a basis for CPLR 302(a)(3)

jurisdiction is . . .misplaced, because their having felt econom ic inj ury in New York, alone, is not

sufficient to confer jurisdiction under that subsection").

While Plaintiffs ' opposition rel ies substantially on the First Department's decision in

Tonelli v. Chase lvlanhattan Bank, NA ., 49 AD2d 73 1, (1st Dept 1975), which he ld that

jurisdiction was proper where " J(Jhe facts as alleged in the complaim, if proven, would establish

a tortious act committed in New Jersey which would reasonably be expected to have

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consequences in New York," the Tonelli decision predates the above cited decisions in Cotia,

i\l.farie, Fan/is and HH Triniry Apex lnvs. LLC, and is thus unavailing.

Accordingly, Plaintiffs' claim that the effects of the Individual DeleJ1dants' alleged

tortious conduct were felt by Plaintiffs in New York merely because Plaintiffs were New York

residents suffering economic injury in New York, is not sufficient to establish injury to person or

property within the state for purposes ofCPLR 302(a).

11. This Court's Exercise of Personal Jurisdiction Over the Individual Defendants Would Not Comport with Due Process

Even assum.ing arguendo and contrary to law and fact that Plaintiffs sufficientl y pied

injury to person or property withi n New York, this Court's exercise ofpcrsonal jurisdiction over

the Individual Defendants would violate the requirements of due process.

Once the requirements of CPLR 302(a) have been met, further inquiry is required ''to

determine whether the exercise o f personal jurisdiction comports with traditional notions of fair

play, substantial justice, and due process" (English at 406). The "due process" element "is

satisfied where the nondom iciliary has minimum contacts with New York State and based upon

those contacts, defendant could or should have reasonably anticipated being 'haled into court'

here" (Id at 407).

The Court of Appeals has held that jurisdiction will be upheld " where the defendant

purposefully reaches beyond their State into another but ' the relationship between the defendant

and the forum stale must arise out of defendant's ovm contacts with the forum and not contacts

between the plainti fT.. . and the forum State"' (State ofNew York v Vayu, Inc. 39 NY3d :no, 337

1_2023]) (quoting Williams v Reem ii/er, Inc.. 33 NY3d 523, 529 [2019]).

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In Walden v Fiore, 571 U .S. 277 (2014), the United States Supreme Court held that;

"mere injury lo a forum resident is not a suf(icient connection to the fonun ...The proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant's conduct connects him to the forum in a meaning ful way."

ln Walden. the Court further held that where a defendanL 's relevant conduct occurred entirely out

of state, "the mere fact that his conduct affected plaintiffs with connections to the forum State

does not suffice LO authorize j urisdiction" (Id. at 29 1). For the exercise of personal jurisdiction to

be proper, ''it is essential that there be some act by which the defendant purposefull y avails itself

of the privilege of conducting activities within the forum State, thus invoking the benefits and

protections of its laws" (Deutsche Bank Sec., Inc. v lv!onlana Bd. (if'/nvs. , 2 1 AD3d 90, 94 11st

Dept 2005 j ).

In the case at bar, Plaintills' ComplaiJll fails LO allege that the Individual Defendants had

sufficient contacts with New York to establish personaljurisd ietion. Plaintiffs ' claim that the

Individual Defendants knew that Plaintiffs lived in New York and were likely to suffer damages

there (NY SCEF Doc. 35 at p. 6) is insufficient to establish the Individual Defendants requisite

contacts with New York.

As none of the Individual Defendants are domiciled in New York and Plaintiffs failed to

adequately claim that the Individual Defendants transacted any business in New York, engaged

in any lortious acl wi Lhin New York, possessed any property in New York, caused injury to

Plai11tifls' person or property within New York, or established the requisite minimum contacts in

New York, this Court does not have personal jurisdiction over 1hc Individual Defendants

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pursuant to CPI ,R 302, and Plai ntiils' claims against the Individual Defendants must be

dismissed. 1

b. Plai ntiffs' Cross Motion for Leave to File an Amended Complaint is Denied

It is well established that denial of leave to file an amended complaint is proper where the

proposed amended complaint (NYSCEF Doc. 42) "suffers from the same fatal de liciency as the

original claims" (J Doe No. 1 v CBS Broadcasting Inc.. 24 AD3d 2 15 [1 st Dept2005]).

Herc, Plaintiffa' Proposed Amended Complaint fails to remedy the deficiencies discussed

above with respect to this Comt's personal j urisdiction over the Individual Defendants.

Specifically, Plaintiffs' Proposed Amended Complaint fails to include allegations that the

Individual Defendants have sufficient minimum contacts with New York Lo render personal

jurisdiction proper. In fact, Plaintiffs' Proposed /\mended Complaint fails to allege that the

Individual Delendants engaged in any conduct or acts in New York whatsoever, except for a

single allegation that Defendant Pascaline addressed correspondence to Plaintiff in New York

(N YSCEF Doc. 42 at 41 16). The First Department has held that telephone calls and written

conununications "generally are held not to provide sufficient basis for personal jurisdiction under

the long-arm statute" unless they have been ' used by the de fendant to actively participate in

business transactions in New York '" (Liberatore v Calvino, 293 AD2d 2 17,220 [1st Dept 2002])

(quoting Levisohn, Lerner, Ber;:er & Langsam v Medical Taping Sys., Inc., IO F. Supp. 2d 334,

344 [S.D.N.Y. 19981).

As Plaintiffs' Proposed Amended Complaint suffers from the same fatal deficiency as the

original claims with respect to this Court's personal jurisd iction over the Individual Defendants,

Plaintiffs' cross-motion for leave to file an amended complaint is denied.

1 Having

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Accordingly, it is hereby,

O RD ~R F,D that IJ1e Ind ividual Defendants' motion for an Order dismissing Plaintiffs'

cl.aims against them is granted, and Plaintiffs' claims against the Individ ual Defendants arc

dismissed in their entirety; and it is further

ORD ERED that Plainti ffs Yamillc I3ongo Asticr and Sa~ha Aondo-Astier·s cross-motion

for an Order granting Plainti ffs leave to lile an amended complaint is dc11icd: and it is further

ORDERED that within ten (10) days of entry, counsel for the Individual Defendants shall

serve a copy of this Decision and Order, with notice of entry, on Plaintiffs Yamillc Bongo t\s1icr

and Sasha Bondo-t\sticr; and it is further

ORDERED that the Clerk of the Court is directed lo enter judgment accord ingly.

This constitutes the Decision and Order of t he Court.

1/2/20 24 DATE m. VI½ a,k JSc HON. µARY V. ROSADO, J.S.C.

CHECK ONE: CASE DISPOSED x NON-FINAL DISPOSITION

GRANTEO □ DENIED x GRANTED IN PART □ OTHER APPLICATION : SETTLE ORDER SUBMIT OROER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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