Prime Properties USA 2011, LLC v. Richardson , 145 A.D.3d 525 ( 2016 )

Prime Props. USA 2011, LLC v Richardson (2016 NY Slip Op 08328)

Prime Props. USA 2011, LLC v Richardson

2016 NY Slip Op 08328

Decided on December 13, 2016

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 13, 2016
Tom, J.P., Friedman, Saxe, Feinman, Kahn, JJ.

2451 651891/13

[*1]Prime Properties USA 2011, LLC, Plaintiff-Appellant,

v

Laura Richardson et al., Defendants-Respondents, Rubin Associates International Law, P.C., Defendant.

Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), for appellant.

Kellner Herlihy Getty & Friedman, LLP, New York (Thomas Vandenabeele of counsel), for respondents.

Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered September 12, 2014, which granted the motion of defendants Laura Richardson and Roland Richardson to dismiss the claims against them pursuant to CPLR 327(a), unanimously affirmed, with costs.

Contrary to the Richardsons' contention, this appeal is not moot, even though the court in the parallel French proceeding already issued a decision on the merits after trial. If we had reversed the motion court's decision, this would have affected the parties' rights (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]) — plaintiff and the Richardsons would have been forced to litigate here.

The Richardsons moved to dismiss based on lack of personal jurisdiction and forum non conveniens. "The court should have addressed the issue of personal jurisdiction before forum non conveniens because, if a court lacks jurisdiction over a defendant, it is without power to issue a binding forum non conveniens ruling as to that defendant" (Flame S.A. v Worldlink Intl. [Holding] Ltd., 107 AD3d 436, 437 [1st Dept 2013] [internal quotation marks omitted], lv denied 22 NY3d 855 [2013]). New York has specific personal jurisdiction over the Richardsons pursuant to CPLR 302(a)(1) (see e.g. George Reiner & Co. v Schwartz, 41 NY2d 648, 653 [1977]; Kleinfeld v Rand, ___ AD3d __, 2016 NY Slip Op 6751 [1st Dept 2016]).

The court providently exercised its discretion by granting the Richardsons' forum non conveniens motion (see e.g. Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 U.S. 1108 [1985]). At its heart, this case involves real estate located in the French Antilles, not in New York (see Regal Knitwear Co. v Hoffman & Co., 96 Misc. 2d 605, 610-611 [Sup Ct, NY County 1978]). The court properly considered the pendency of the French action (see World Point Trading PTE v Credito Italiano, 225 AD2d 153, 161 [1st Dept 1996]). "[O]ur courts should not be under any compulsion to add to their heavy burdens by accepting jurisdiction of a cause of action having no substantial nexus with New York" (Silver v Great Am. Ins. Co., 29 NY2d 356, 361 [1972]).

Plaintiff's argument that this case should be remanded to a different justice is rendered academic by our affirmance and the

Justice's retirement from the bench; in any event there was no evidence of bias.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 13, 2016

CLERK