Magdalena v. Lins

• Decision Date: 16 December 2014
• Docket Number: 13805, 153047/13
• Citation: 2014 N.Y. Slip Op. 08782,123 A.D.3d 600,999 N.Y.S.2d 44
• Parties: Marcio MAGDALENA, Plaintiff–Respondent, v. Eduardo LINS, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 600
999 N.Y.S.2d 44
2014 N.Y. Slip Op. 08782

Marcio MAGDALENA, Plaintiff–Respondent
v.
Eduardo LINS, et al., Defendants–Appellants.

13805, 153047/13

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

Dec. 16, 2014.

999 N.Y.S.2d 45

Stroock & Stroock & Lavan LLP, New York (Michael A. Fernández of counsel), for appellants.

MAZZARELLI, J.P., ANDRIAS, MANZANET–DANIELS, FEINMAN, GISCHE, JJ.

Opinion

123 A.D.3d 600

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered February 28, 2014, which, to the extent appealed from as limited by the briefs, denied defendants' motion to dismiss the complaint for lack of personal jurisdiction and on forum non conveniens grounds, unanimously reversed, on the law, with costs, and the motion granted on the ground of lack of personal jurisdiction. The Clerk is directed to enter judgment accordingly.

The court erroneously concluded that the parties had consented to jurisdiction in New York based on a forum selection clause. It appears that the court conflated the oral fee sharing agreement between the parties (the Fee Sharing Agreement), which is the subject of the instant lawsuit and which contains no consent or forum selection provision, with a separate written fee sharing agreement between defendant Glendun Point S.A. and an entity that is not a party to this lawsuit (the Non–Circumvention Agreement), which contains the forum selection provision the court cited. Since plaintiff is neither a party to the

123 A.D.3d 601

Non–Circumvention Agreement, which pre-dates the Fee Sharing Agreement at issue, nor an intended third party beneficiary of that agreement, he cannot enforce its forum selection clause against defendants (see ComJet Aviation Mgt. v. Aviation Invs. Holdings, 303 A.D.2d 272, 758 N.Y.S.2d 607 [1st Dept.2003] ; see also PT. Bank Mizuho Indonesia v. PT....