Matter of Matthews v Symbion Power LLC

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Matter of Matthews v Symbion Power LLC 2020 NY Slip Op 32701(U) January 28, 2020 Supreme Court, New York County Docket Number: 653331/2019 Judge: Barry Ostrager 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. [*FILED: 1] NEW YORK COUNTY CLERK 01/29/2020 04:14 PM NYSCEF DOC. NO. 55 INDEX NO. 653331/2019 RECEIVED NYSCEF: 01/29/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. BARRY R. OSTRAGER IAS MOTION 61 EFM Justice ---------------------------------------------------------------------------------X SIMON MATTHEWS INDEX NO. 653331/2019 MOTION DATE Plaintiff, 002 MOTION SEQ. NO. -vDECISION + ORDER ON MOTION SYMBION POWER LLC, Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 22, 23, 24, 25, 26, 27,28,29, 30, 31,32, 33, 34, 35, 36,37, 38,39,40,41,42,43,44,45,46,47,48, 50, 51 were read on this motion to/for DISMISS The defendant's motion to dismiss is granted in part and denied in part. Briefly, this is a dispute relating to plaintiffs claim for compensation pursuant to written contracts entered into in 2009 and 2011 between the plaintiff, a British domiciliary, and Symbian Power Company (Symbion Europe") as well as an alleged oral contract between the plaintiff and a representative of Symbion Power LLC. ("Symbion"). Symbion and Symbion Europe are subsidiaries companies of Symbion Holdings, Ltd. The plaintiff has a minority interest in Symbion Holdings, Ltd and is thus familiar with the corporate structure of the various Symbion entities. The plaintiff has a claim pending in Delaware Chancery Court against Symbion Holdings Ltd. Symbion Europe has apparently initiated an action in Cyprus related to plaintiffs contract with Symbian Europe. Plaintiffs contract with Symbion Europe contains a Cyprus choice of law provision as well as a consent to jurisdiction in Cyprus provision. This action is solely against Symbian, which is a Delaware corporation with its principal place of business in New York. The Cyprus action appears to have been initiated in retaliation for the filing of the action in this Court. 653331/2019 MATTHEWS, SIMON vs. SYMBION POWER LLC Motion No. 002 1 of 3 Page 1of3 [*FILED: 2] NEW YORK COUNTY CLERK 01/29/2020 04:14 PM NYSCEF DOC. NO. 55 INDEX NO. 653331/2019 RECEIVED NYSCEF: 01/29/2020 Manifestly, defendant's motion to dismiss onforum non conveniens grounds must be denied because there has been no showing that Symbian is amenable to jurisdiction in Cyprus and consequently there has been no showing that plaintiff has an alternative choice of forum. Symbian is subject to jurisdiction in New York. The defendant has moved to dismiss the contract claims on various grounds, including the applicable statute oflimitations. Since Symbion is not a signatory to the 2009 and 2011 contracts, those claims must be dismissed. Plaintiff argues that he may assert these claims against Symbion based on an alleged agency relationship between Symbion and Symbion Europe. However, plaintiff has not plead this assertion with sufficient specificity; as plaintiff would have to allege, at a minimum, that Symbion completely dominates and control Symbion Europe. Thus, as a matter of law, plaintiff cannot assert a claim against Symbian pursuant to a contract plaintiff entered into with Symbian Europe. Although plaintiff submitted documentation that plaintiffs work was supervised by Symbian, plaintiff cannot have a breach of contract claim against Symbian pursuant to a contract that he knowingly entered into with Symbian Europe. On the other hand, plaintiffs oral contract claim, which is based upon an alleged agreement with the head of Symbian cannot be dismissed on this motion. Similarly, under the applicable standards on a CPLR Section 3211 motion, plaintiffs quasi-contract claims, which are plead in the alternative to his breach of contract claims, cannot be dismissed on this motion. There are sufficient issues of fact pled to preclude dismissal on 3211 statute of limitations grounds. Thus, insofar as the defendant seeks to dismiss plaintiffs oral contract claim and quasi-contract claims, the motion is denied without prejudice to renewal as a motion 653331/2019 MATTHEWS, SIMON Motion No. 002 vs. SYMBION POWER LLC 2 of 3 Page 2 of 3 [*FILED: 3] NEW YORK COUNTY CLERK 01/29/2020 04:14 PM NYSCEF DOC. NO. 55 INDEX NO. 653331/2019 RECEIVED NYSCEF: 01/29/2020 for summary judgment at the conclusion of discovery. The balance of defendant's motion to dismiss is denied for the reasons stated above. Accordingly, it is hereby ORDERED that Defendant's motion to dismiss is granted in part and denied in part; and it is further ORDERED that the Clerk dismiss and sever plaintiffs first and second causes of action from the Complaint; and it is further ORDERED that Defendant answer the complaint within thirty days of this Decision & Order; and it is further ORDERED that the parties appear for a preliminary conference on March 31, 2020 at 9:30 a.m. 1/28/2020 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED . D NON-Fl DENIED L DISPOSITION GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT D OTHER D REFERENCE BARRY R. OSTRAGER JSC 653331/2019 MATTHEWS, SIMON vs. SYMBION POWER LLC Motion No. 002 3 of 3 Page 3 of 3

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