Gliklad v. Cherney

• Decision Date: 03 July 2012
• Citation: 948 N.Y.S.2d 48,2012 N.Y. Slip Op. 05333,97 A.D.3d 401
• Parties: Alexander GLIKLAD, Plaintiff–Respondent, v. Michael CHERNEY, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 401

948 N.Y.S.2d 48

2012 N.Y. Slip Op. 05333

Alexander GLIKLAD, Plaintiff–Respondent,

v.Michael CHERNEY, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

July 3, 2012.

Friedman Kaplan Seiler & Adelman LLP, New York (Philippe Adler of counsel), for appellant.

Winston & Strawn LLP, Chicago, IL (W. Gordon Dobie of the bar of the State of Illinois, admitted pro hac vice, of counsel), for respondent.

GONZALEZ, P.J., ANDRIAS, SAXE, DeGRASSE, ROMÁN, JJ.

Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered May 24, 2011, which granted plaintiff Alexander Gliklad's cross motion to strike defendant's affirmative defense of lack of personal jurisdiction, unanimously reversed, on the law, without costs, and the cross motion denied. Order, same court and Justice, entered July 21, 2011, granting plaintiff's motion for a preliminary injunction enjoining defendant from prosecuting a pending action in Israel; order, same court and Justice, entered October 21, 2011, which denied defendant's motion to dismiss pursuant to CPLR 327 on the ground of forum non conveniens; and order, same court and Justice, entered October 27, 2011, which denied defendant's motion to renew and reargue the July 2011 order, unanimously affirmed, without costs.

The IAS court erred in granting plaintiff's motion to strike defendant's affirmative defense of lack of personal jurisdiction. Contrary to plaintiff's contention, defendant did not waive this defense by moving for summary judgment dismissing the complaint on the merits, given that defendant had previously raised the jurisdictional defense. Competello v. Giordano, 51 N.Y.2d 904, 434 N.Y.S.2d 976, 415 N.E.2d 965 [1980] is distinguishable, as the defendant in that case failed to raise the defense of lack of personal jurisdiction in a motion pursuant to CPLR 3211(a)(7).

Defendant failed to meet his burden of establishing that New York is an inconvenient forum for this action ( see Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478–479, 478 N.Y.S.2d 597, 467 N.E.2d 245 [1984],cert. denied469 U.S. 1108, 105 S.Ct. 783, 83 L.Ed.2d 778 [1985] ). Further, the subject promissory note contained a clause selecting New York as the forum, barring defendant's forum non conveniens motion ( see Sebastian Holdings, Inc. v. Deutsche Bank AG., 78 A.D.3d 446, 447, 912 N.Y.S.2d 13 [2010] ).

The court properly granted plaintiff's motion for a preliminary injunction barring defendant from prosecuting the action he had commenced in Israel over the same promissory note at issue in the instant action. A party moving for a preliminary injunction must establish a likelihood of success on the merits, irreparable harm if the injunction were not granted, and a balance of the equities in the movant's favor ( see W.T. Grant Co. v. Srogi, 52 N.Y.2d 496, 517, 438 N.Y.S.2d 761, 420 N.E.2d 953 [1981];Casita, L.P. v. MapleWood Equity Partners [Offshore] Ltd., 43 A.D.3d 260, 841 N.Y.S.2d 19 [2007] ). Here, even if defendant may have a meritorious defense, plaintiff made a prima facie showing that his claim under the promissory note has merit ( see Matter of Witham v. vFinance Invs., Inc., 52 A.D.3d 403, 860 N.Y.S.2d 98 [2008];Bingham v. Struve, 184 A.D.2d 85, 591 N.Y.S.2d 156 [1992] ). Plaintiff also established a risk that he would suffer irreparable harm if he were to travel to Israel to litigate the other action, since this act might jeopardize his Canadian asylum status. In addition, the balance of the equities favors plaintiff, since the expenditures of time and resources by the parties and the...