Imax Corp. v. Group, 4623, 650342/13.

• Decision Date: 10 October 2017
• Docket Number: 4623, 650342/13.
• Parties: IMAX CORPORATION, Petitioner–Appellant, v. THE ESSEL GROUP, Respondent, Subhash Chandra, et al., Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 464

62 N.Y.S.3d 107

IMAX CORPORATION, Petitioner–Appellant,

v.THE ESSEL GROUP, Respondent,Subhash Chandra, et al., Respondents–Respondents.

4623, 650342/13.

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

Oct. 10, 2017.

Kelley Drye & Warren LLP, New York (Jonathan K. Cooperman of counsel), for appellant.

Mauro Lilling Naparty LLP, Woodbury (Seth M. Weinberg of counsel), for Subhash Chandra, Zee TV USA, Inc., Asia TV USA Ltd. and Natural Wellness USA, Inc., respondents.

Law Offices of Megha D. Bhouraskar, P.C., New York (Megha D. Bhouraskar of counsel), for Atul Goel, Amit Goenka and Laxmi Goel, respondents.

RICHTER, J.P., GISCHE, KAHN, KERN, JJ.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered on or about October 9, 2015, which denied the petition for an order pursuant to CPLR 5201 and 5225(b) directing respondents to deliver funds or property sufficient to satisfy a judgment, unanimously affirmed, with costs.

Petitioner, a Canadian company, seeks to satisfy a judgment entered in its favor against nonparty E–City Entertainment I Pvt. Ltd. with funds or property owned by respondents, whom it identifies as "The Essel Group, an Indian conglomerate that owns and controls E–City, certain companies that are part of the Essel Group, and individuals in control of the Essel Group (referred to in India as ‘Promoters')." Petitioner alleges that the Essel Group and the individual respondents collectively perpetrated a fraud against it by fraudulently demerging E–City during the arbitration proceedings that resulted in the judgment and transferring assets out of E–City and into other Essel Group companies, including the corporate respondents, to avoid paying damages.

Initially, petitioner failed to establish that New York courts have personal jurisdiction over the Essel Group and the individual respondents on the basis of a tortious act committed without the state "causing injury to person or property within the state" ( CPLR 302[a][3] ). As the original event that caused the economic injury was the demerger of E–City in India, the situs of the injury is India (see e.g. Cotia [USA] Ltd. v. Lynn Steel Corp., 134 A.D.3d 483, 484, 21 N.Y.S.3d 231 [1st Dept.2015] ). Petitioner's executive offices in New York do not alone constitute a sufficient predicate for jurisdiction (see Fantis Foods v. Standard Importing Co., 49 N.Y.2d 317, 326, 425 N.Y.S.2d 783, 402 N.E.2d 122 [1980] ; Peters v. Peters, 101 A.D.3d 403, 404, 955 N.Y.S.2d 315 [1st Dept.2012] ). Nor does it avail petitioner that respondent Subhash Chandra, chairman of the Essel Group, traveled to New York to negotiate the agreement with petitioner, since the injury petitioner alleges arose not from the breach of the agreement but from the demerger. These facts do not constitute a sufficient start in showing that jurisdiction could exist to justify pretrial jurisdictional disclosure (see Peterson v. Spartan Indus., 33 N.Y.2d 463, 467, 354 N.Y.S.2d 905, 310 N.E.2d 513 [1974] ; SNS Bank v. Citibank, 7 A.D.3d 352, 354, 777 N.Y.S.2d 62 [1st Dept.2004] ).

Additionally, petitioner failed to establish that New York courts have general jurisdiction over respondent Chandra individually pursuant to CPLR 301. New York courts may not exercise general jurisdiction against a defendant under the United States Constitution or under CPLR 301 unless the defendant is domiciled in the state ( Daimler AG v. Bauman, –––U.S. ––––, 134 S.Ct. 746, 760–761, 187 L.Ed.2d 624 [2014] ; Magdalena v. Lins, 123 A.D.3d 600, 601, 999 N.Y.S.2d 44 [1st Dept.2014] ) or in an exceptional case where "an individual's contacts with a forum [are] so extensive as to support general jurisdiction notwithstanding domicile elsewhere" ( Reich v. Lopez, 858 F.3d 55, 63 [2d Cir.2017] ). In the present case, movant has failed to show either that Chandra was domiciled in New York or that Chandra's contacts with New York were so extensive as to support general jurisdiction. Initially, the purchase of the apartment, even if attributable to him personally, is insufficient to establish that Chandra was domiciled in New York (see Magdalena v. Lins, 123 A.D.3d 600, 601, 999 N.Y.S.2d 44 [1st Dept.2014] ; see also Chen v. Guo Liang Lu, 144 A.D.3d 735, 737, 41 N.Y.S.3d 517 [2d Dept.2016] ). Further, the evidence submitted by petitioner demonstrates that Chandra's business activities in New York were undertaken on behalf of a corporate entity (see Laufer v. Ostrow, 55 N.Y.2d...