Peters v Peters

Peters v Peters 2012 NY Slip Op 08242 Decided on December 4, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 4, 2012
Saxe, J.P., Sweeny, Richter, Abdus-Salaam, Román, JJ.
8239 600456/04

[*1]Frances C. Peters, Plaintiff-Appellant,

v

George Christy Peters, et al., Defendants, UBS AG, etc., et al., Defendants-Respondents.




Leslie Trager, New York, for appellant.
Mayer Brown, LLP, New York (Mark G. Hanchet of counsel),
for respondents.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered July 12, 2011, which granted defendant UBS AG's and defendant UBS Trustees' (UBS Bahamas) motions to dismiss the complaint as against them on forum non conveniens and personal jurisdiction grounds, respectively, without prejudice to recommencement in the appropriate jurisdictions, unanimously affirmed, without costs.

The motion court properly exercised its discretion in finding that the fact of plaintiff's residence in New York is outweighed by the remaining factors under consideration on UBS
AG's motion to dismiss on the ground of forum non conveniens (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479 [1984], cert denied 469 US 1108 [1985]). The transaction out of which the cause of action arose occurred in Switzerland, all the meetings described by plaintiff that involved UBS AG personnel took place in that country, nearly all the nonparty witnesses are there, Swiss law would apply to the claims, and plaintiff may bring suit in Switzerland.

The court properly granted UBS Bahamas' motion to dismiss on the ground of lack of personal jurisdiction pursuant to CPLR 302(a)(2), since plaintiff does not allege that UBS Bahamas committed a tort within the State of New York (see Longines-Wittnauer Watch Co. v Barnes & Reinecke, 15 NY2d 443, 460 [1965], cert denied 382 US 905 [1965]; National Union Fire Ins. Co. of Pittsburgh v Davis, Wright, Todd, Reise & Jones, 157 AD2d 571, 572 [lst Dept 1990]). Plaintiff's claim that the individual defendants, as agents of UBS Bahamas, committed a tort in New York in furtherance of a conspiracy is conclusory (see e.g. Pramer S.C.A. v Abaplus Intl. Corp., 76 AD3d 89, 97 [1st Dept 2010]).

The court also properly found that UBS Bahamas is not subject to jurisdiction pursuant to CPLR 302(a)(3)(ii), since the allegedly wrongful disbursement of approximately $20 million was not an injury-causing event in New York, but, rather, a decision by a trustee in the Bahamas to authorize the release of funds from bank accounts in Switzerland. Plaintiff cannot establish injury in New York merely because she resides here (see e.g. Magwitch, L.L.C. v Pusser's Inc., 84 AD3d 529, 532 [1st Dept 2011], lv denied 18 NY3d 803 [2012]; Mid-Atlantic Residential [*2]Invs. Ltd. Partnership v McGuire, 166 AD2d 205, 206-207 [1st Dept 1990]).

Plaintiff failed to establish that essential jurisdictional facts may exist that are not presently known so as to warrant further jurisdictional discovery (see Copp v Ramirez, 62 AD3d 23, 31 [1st Dept 2009], lv denied 12 NY3d 711 [2009]).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 4, 2012

CLERK