CK's Supermarket Ltd. v Peak Entertainment Holdings, Inc.

CK's Supermarket Ltd. v Peak Entertainment Holdings, Inc. 2007 NY Slip Op 01482 [37 AD3d 348] February 22, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

CK's Supermarket Limited, Appellant,
v
Peak Entertainment Holdings, Inc., Respondent.

—[*1] Law Offices of Edward Weissman, New York (Edward Weissman of counsel), for appellant. Law Offices of Dan Brecher, New York (Dan Brecher of counsel), for respondent.

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered August 1, 2006, which, in an action on a guaranty, granted defendant's pre-answer motion to dismiss the action, unanimously affirmed, with costs.

The action was properly dismissed for lack of jurisdiction, there being no evidence that the subject guaranty, which was drafted and executed in the United Kingdom, involved any purposeful activity by defendant in New York (see O'Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199, 200-201 [2003]). Indeed, the only purposeful activity alleged is that defendant's New York-based counsel assisted in negotiating the guaranty. That is not enough (see Glassman v Hyder, 23 NY2d 354, 363 [1968]). Nor does plaintiff show that defendant is present in New York. Moreover, assuming jurisdiction, the action should in any event be dismissed on the ground of forum non conveniens. The parties are both foreign corporations that maintain their principal offices in the United Kingdom, where an alternative forum exists, and it does not appear that either party is authorized to do business in New York or maintains an office in New York, or that the debt underlying the guarantee is related to any business activity in New York. That the guaranty was negotiated by defendant's New York-based counsel, and that defendant would not be unduly inconvenienced by a New York forum, would not persuade us to retain the action. Concur—Mazzarelli, J.P., Saxe, Marlow, Nardelli and Gonzalez, JJ.