Astier v. Ondimba

2024 NY Slip Op 30006

• Court: New York Supreme Court, New York County
• Decided: January 2, 2024
• Status: Unpublished

Opinion

Astier v Ondimba 2024 NY Slip Op 30006(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. 53 RECEIVED NYSCEF: 01/02/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice -------------------X INDEX NO. 156010/2022 YAMILEE BONGO ASTIER. SASHA BONGO-ASTIER, MOTION DATE 05/08/2023 Plaintiff, MOTION SEQ. NO. 004 • V -

PASCALINE MFERRI BONGO ONDIMBA, NESTA BONGO- PING, CHRISTOPHER BONG-PING, LYNN OTALY- DECISION + ORDER ON SERGENT, MAEL JUNIOR OTALY-SERGENT, AMIN ISHA CORPORATION, PHARUS LLC MOTION

Defendant.

-········-···-··-··· · - - ·-----------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 004) 24, 25, 26, 27, 29, 32, 34, 37, 48 were read on th is motion to/for DISMISS

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

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

13ondo-1\stier (together, ''Plaintiffs"); Angelica Aminov, Esq. and Michael Grudbcrg, Esq.

appeared for Defendants Aminisha Corporation and Pharus LLC (the "Corporate Defendants");

and Alice Buttrick, Esq. and Jonathan P. Bach, Esq. appeared for l)cfcndants Pascalinc l'v!fcrri

Rongo Ondimba, Nesta Bongo-Ping, Christopher Bong-Ping, Lyrm Otaly-Sergent, and Mae]

Junior Otaly-Scrgcnt (together, the " Individual Defendants"), the Corporate l)cfcnclants motion

for an Order dismissing Pla inti ffs' claims against them is granted .

I. Bac.kground

Plaintiffs Yamillc Bongo Asticr and her daughter Sasha 13ondo-Asticr arc alleged to be

the daughter and granddaughter, respectfully, of Omar 13ongo Ondimba ("l'rcsiclcnt Ondimba"),

the former President of Gabon (NYSCEF l)oc. 35 at p. 5). Plaintiffs commenced this action

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

19, 2022, claiming that after President Ondimba's death, Defendants misappropriated fonds from

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

On May 8, 2023, the Individual De fendants brought a motion (Motion Sequence 3) to

dismiss Plaintiffs ' claims against them (NYSCEF Doc. 19). By Decision and Order dated

January 2, 2024, this Court granted the Individual Defendants' motion to dismiss Plaintiffs'

claims against them and denied Plaintiffs' cross-motion lbr leave to fi le an amended complaint.

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

Plaintiffs' claims against them on the grounds th,ll (1) Plaintiffs lack standing; (2) this Court

lacks personal jurisdiction over the Corporate Defendants; (3) Plaintiffs' cl.aims are time-barred;

(4) Plaintiffs ' plead ing fails to state a cause or action; and (5) Plaintiffa' Complaint fails to

include necessary parties (NYSCEF Doc. 24).

II. Discussion

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

The Corporate Defendants move to dismiss Plaintiffs' Complaint pursuant to, inter alia,

CPLR. 32 J l (a)(8) on the ground that this Court lacks personal jurisdiction over the Corporate

Defendants. Where a defendant moves to dismiss pursuant to CPI..R 32 11 (a)(8), it is the

plaintiffs burden to prove the court has jurisdiction (Copp v Ramirez, 62 AD3d 23, 28, 874 f l st

Dept 2009.1). As discussed below, Plaintiffs have failed to meet their burden of demonstrating

that this Court has personal jurisdiction over the Corporate Defendants.

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

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

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York's long-arm statute, and the exercise ofjurisdiction comports with due prncess" (English v

Avon Prods.. Inc., 206 AD3d 404,405 [1st Dept 2022]).

1. Plaintiffa' Claims arc not Permissible Under CPLR 302(a)

Preliminarily, Plaintiffs concede that the Corporate Defendants are residents o f California

(NYSCEF Doc. 1 at ii!\ at 5). Pursuant to CPLR 302(a), a New York court may exercise

personal jurisdiction over any non-domici liary, or his executor or administrator, who in person or

through an agent:

( 1) transacts any business wi thin the state or contracts anywhere to supply goods or services in the stale; or (2) commits a tortious act within the state . .. ; or (3) commits a tortious act without the state causing injury to person or property within the state ... if 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 (ii) expects or sho uld reasonably expect the act to have consequences in the state and derives substantia.1 revenue from interstate or international commerce; or (4) 0\,1lS, uses or possesses any real property simatcd within the state.

Plaintiffs Complaint contains no allegation that the Corporate Defendants transacted any

busine.% in New York State, engaged in any tortious act within New York State, or possessed

any property in New York State. Nonetheless, Plaintiffs contend that the Complaint satisfies

each clement of CPLR 302(a)(3) with respect to the Corporate Defendants hccausc Plaintiffs'

claims, if proven, would "establish the tortious acts of fraudulent conveyance and unj ust

enrichment committed outside New York ... [wh.ich] would rea,onahle be expected to have

consequences tn Plaintiffs in New York" (NYSCEF Doc. 37 at p. 6). l'or the reasons outlined

below, this argument is unavai ling.

II is well established that, for the purposes of CPLH. 302(a)(3), " the situs or the injury is

the location o r the original event which caused the injury, not the location where the resultant

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damages arc subsequently felt" (Cotia (USA) Ltd v l.ynn Steel Cmp.. 134 AD3d 483. 484 fist

Dept 2015 J (internal citations omitted); see also (Marie v Altshuler, 30 AD3d 271, 272 I I st Dept

20061) (holding that " the rule that the situs of the injUI)' for long-am1 purposes is where the event

giving rise to the injury occurred, not where the resultant damages occurred, is not restricted 10

medical malpractice or personal injury cases"). Further, Courts have firmly held that ··the

residence or domicile of the injured party within a State is not a suflicicnt 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·' (Famis Foods, Inc. v Standard

Importing Co. 49 NY2d 3 17, 326 f 19801; see also, (HH Trinity Apex lnvs. I.LC v Smith,

Anderson. JJloum. Dorsett. lvfifche/1 & Jernigan, L.L. P., 2 10 ADJd 474, 476 [ I st Dept 20221)

(ho lding thut " Plaintiff.~' rel iance on fan] alleged extortion as a bas is for CPL R 302(a)(3)

jurisdiction is ... misplaced, because their having felt economic inj ury in New York, a lone. is not

suflicicnt 10 confer jurisdiction under that subsection").

Accordingly, Plaintil'fs' claim that the effects of the Corporate De fendants' alleged

tortious conduct '·would reasonably be expected lo have consequences to Plaintiffs in New

York;' is not suflicienl lo allege that the Corporate Defendants commiucd a tortious act causing

injury to Plaintiffs ' person or property in l\ew York under Cl'LR 302(aX2) or (a)(3).

Having failed to claim that the Corporate Defendants transacted any business in Kew

York. engaged in any tortious act in New York, owned any property in New York , or caused any

injury 10 Plaintiffs· person or property in New York, Plaintiffs fail to establish that this Court has

personal jurisdiction over the Corporate Defendants under CPT.R 302(a). Accordingly, Plaintiffs'

claims against the Corporate Defendants must be dismissed.

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

Even assuming arguendo and contrat)' to law and fact that Plaintills surliciently pied

injury to person or property within New York, this Court's exercise of personal jurisdiction over

the Corporate Defendants would violate the requirements or due process.

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

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

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

satisfied where the nondomiciliat)' 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 relationshi p between the defendant

and the forum state must arise out of defendant's own contacts with the forum and not contacts

between the plaintiff.. .and the fornm State"' (Slate o,(New York v Vayu, Inc. 39 NY3d 330, 337

r202Jl) (quoting Williams v Bee miller, Inc.. 33 NY3d 523, 529 [2019 J).

ln Walden v Fiore, 57 1 lJ.S. 277 (2014), the United States Supreme Court held that;

"mere injury to a forum resident i~ not a sufficient connection to the fonun .. .The proper question is not where the plainti ff experienced a particular injury or effect but whether the de/endant's conduct connects him to the forum in a meaningful way.'·

The Walden Court forther held that where a defendant's relevant conduct occurred entirely out of

state, ''the mere fact that his conduct affected plaintiff~ wi th connections to the forum State does

not suffice to authorize jurisdiction" (Id. at 291). For the exercise of personal j urisdiction to be

proper, "it is essential that there be some act by which the defendant purposefully avails itself of

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

protections of its laws'' (DeUlsche Bank Sec., Inc. v i\tfomana Bd. oflnvs.. 21 t'\.D3d 90, 94 List

Dept 2005 J).

In the case at bar, Plaintiffs' Complaint fails to allege that the Corporate Defendants had

sufficient contacts with New York to estab lish personal jurisdiction. Plaintiffs' claim that the

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

there (NYSCEF Doc. 35 at p. 6) is insufficient to establish the Corporate Defendants requisite

contacts with New York.

As the Corporate Defendants arc not domiciled in New York and Plaintiffs have failed to

adequately c.laim that the Corporate Defendants transacted any business in New York, engaged

in any tortious act within New York, possessed any property in New York, caused injury to

Plainti ffs' person or properly in New York, or established the requisite minimum contacts in

New York to satisfy due process, this Court does not have personal jurisdiction over the

Corporate Defendants pursuant to CPLR 302, and Plainti ll\' claims against the Corporate

Defendants must be dismissed. 1

Accordingly, it is hereby,

ORDERED that the Corporate Defendants' motion fi.>r an Order dismissing Plaintiffa'

claims against them is granted, and Plaintiff.~' claims against the Corporate Defendants are

dismissed in their entirety; and it is further

ORDERED that wiihin ten (10) days of entry, counsel for the Corporate Defendants shall

serve a copy of this Decision and Order, with notice ofenlly, on Plaintiffs Yam ille Rongo Astier

and Sasha I3ondo-Astier; and it is further

1 Having dism issed Plaintiffs' chims ag ainst the Individual Defendants hascd on this Court's lack of personal jurisdiction. lhc Individual Defendants' alternative grounds for dismissal need not be considcrcc.l.

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ORDF.RF.D that the Clerk oflhe Court is directed to enter judgment accordingly.

This constitutes the Decision and Order of the Court.

11212024 DATE HON. RY V. ROSADO, J .S.C.

CHfC.KON1!: a CASE DISPOSED x NON..ftNAL otSPOSITION

GRANTED □ DENIED x GRAHTED IH PART □ OTHER APPUC.I.TION: SETTLE ORDER SUS,.TOAOER

CHECK If APPROPRl•TE: INCLUDES TRANSFERJREASSIGN FIOUCIARY APPOINTMENT □ REFERENCE

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