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BOWER v. WEISMAN

June 30, 1986

SACHIKO T. BOWER, Plaintiff,
v.
FREDERICK R. WEISMAN, FREDERICK WEISMAN CO., and RARE PROPERTIES, INC., Defendants



The opinion of the court was delivered by: SWEET

SWEET, D.J.

O P I N I O N

 Defendant Frederick R. Weisman ("Weisman") has moved to dismiss the second amended complaint ("complaint") of plaintiff Sachiko Bower ("Bower") (1) for lack of personal jurisdiction pursuant to Rule 12(b)(2), Fed.R.Civ.P.; (2) for a more definite statement pursuant to Fed.R.Civ.P. 12(e); (3) for a stay of the First, Second and Third claims in the complaint pursuant to the Federal ARbitration Act, 9 U.S.C. § 3; (4) for dismissal of claim Two for failure to state fraud with particularity as required by Rule 9(b), Fed.R.Civ.P.; (5) for dismissal of the Fourth, Fifth, Sixth and Seventh claims pursuant to Rule 12(b)(6) for failure to state a claim and; (6) for sanctions under Rule 11, Fed.R.Civ.P. For the reasons set forth below, these motions are granted in part and denied in part.

 Prior Proceedings

 Bower commenced this action in New York State court on November 7, 1985, naming Weisman, Frederick Weisman Co. ("FWC") and Rare Properties, Inc. ("Rare Properties"), both Delaware corporations, as defendants. After removal, this court ordered expedited discovery and a trial date of December 3, 1985 to permit a resolution of the townhouse dispute prior to a December 19, 1985 scheduled closing date on a sale of the townhouse to a third party. By stipulation and order of November 25, 1985, Bower agreed to vacate the property and reserved the right to bring a damage action for the events set forth before. On January 18, Bower served the Second Amended Complaint in this action.

 The Pleadings

 According to the Second Amended Complaint, in July, 1985, Bower and Weisman terminated a fifteen-year close personal and business relationship. According to Bower, in exchange for valuable business and social assistance which Bower rendered to Weisman during their relationship, Weisman promised to provide Bower with an economic interest in his affairs and to provide Bower and her daughter with financial security. Bower contends that Weisman agreed to provide these benefits even after their relationship terminated, as long as Bower, a Japanese citizen, did not remarry or leave the United States and that Weisman breached a series of written and oral agreements, codifying Weisman's promise of financial security.

 Bower asserts that in the final version of this agreement dated July 6, 1985, Weisman agreed (1) to purchase a house in California for Bower at a cost of $6.5 million; (2) to provide Bower with an irrevocable trust in the amount of $3.9 million and $100,000 in trust for Bower's daughter; (3) to pay Bower an annual sum of $120,000 for ten years over and above a promissory note held by FWC dated November 1, 1983; (4) to pay Bower's living expenses until her remarriage or departure from the United States; (5) to provide rent-free possession of Weisman's New York townhouse until her remarriage or departure from the United States. Provision number (3) concerns a promissory note and consultant agreement executed on November 1, 1983 by FWC and Preferred Capital International Inc. ("Preferred Capital"), a corporation wholly owned by Bower.

 In mid-July, 1985, the Bower-Weisman relationship terminated, and according to Bower, Weisman reneged on this agreement and attempted to coerce her to leave the townhouse, which she asserts was purchased with her own money but which she sold to Weisman in 1980 at his request to accommodate his tax needs in reliance on his promises of a rent-free tenancy. In September and November, 1985, Weisman instructed his agents to enter the apartment, to strip it of artwork and furniture which was purportedly the property of Weisman, to change the locks on Bower's door when she was at work and her daughter was home ill, and to station three armed guards in the townhouse lobby, with instructions to prevent the entry of "unauthorized" individuals. Furthermore, Bower claims that Weisman's real estate agents and attorneys made unauthorized visits to the apartment and disturbed her personal belongings.

 The complaint alleges seven claims arising from the July 6, 1985 agreement outlined above, each of which is challenged in this motion. Claim One asserts tort and contract claims for money damages arising from the "breach of express agreements"; Claim Two alleges fraud, misrepresentation and deceit in connection with the agreement; Claim Three is for "breach of contract and conversion" and concerns Weisman's attempt to remove Bower from the townhouse and his alleged conversion of art and furniture. Claims Four and Five charge the defendants with trespass and false imprisonment in connection with the townhouse, and Claims Six and Seven concern intentional infliction of emotional distress, and private nuisance, also in connection with Weisman's actions to recover the townhouse.

 Jurisdictional Facts

 As Weisman's motion challenges this court's jurisdiction over his person, it is necessary to set out the threshold jurisdictional facts. Weisman asserts that he is a California resident and has been such for forty-seven years, where he votes, owns real estate, and files his tax returns. While he admits to "occasional" visits to New York for social, cultural and entertainment purposes and to attend business meetings on behalf of a Maryland corporation, he insists that he owns no real or personal property in New York, has not negotiated or executed contracts in New York, and has not conducted business in New York.

 Bower has put forth evidence demonstrating that Weisman was served with process in this action on January 18, 1986 while he was staying at a hotel in New York. Bower has also annexed checks from a joint bank account maintained in the names of "Frederick Weisman and Sachiko T. Bower" with the townhouse address imprinted on the checks. Although Weisman states that this account was for Bower's convenience, he closed the account at the termination of their relationship on July 17, 1985 and withdrew the entire balance. Weisman's statements for this account, as well as other mail addressed to him, were mailed to the townhouse.

 Weisman's affidavit of November 7, 1985 submitted in the prior state court proceedings recounts ". . . I occupied one of the residential unties [of the townhouse property] as my living quarters in New York City, and I allowed plaintiff Bower to stay there as my companion/guest for approximately 5 years until July, 1985 when our relationship ended." The telephone records for the townhouse show a listing for three numbers under the name of "Mrs. F. Weisman" as well as a listing for FWC. Finally, in the affidavit which Weisman submitted in connection with the instant motion, Weisman admits to negotiating some "personal financial and business matters" with bower and her accountant present, negotiations which Bower contends formed a part of the same agreement at issue in this action:

 
On September 10, 1984, I attended a meeting in New York with plaintiff and our respective accountants. At that meeting, we engaged in preliminary discussions on a variety of topics regarding personal, financial and business matters. No agreement whatsoever with respect to any aspect of our dealings resulted from this meeting. In fact, there were numerous similar discussions which took place in California both before and after September 10, 1984, with respect to the same or similar topics.

 Weisman affidavit, ...


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