to aggregate at least $10 million to invest in a trading program,
depositors were told that they would receive all the benefits of private
banking in Liechtenstein, including secure, individual accounts and
tax-free interest. Plaintiffs were also told that if they deposited at
least $100,000, they would be eligible to participate in a "high yield
investment program and/or a reserved funds program." (Compl. ¶
26(e)(i)). The bank was to be structured as a branch of VP Bank, an
established Liechtenstein bank. However, when VP Bank withdrew from the
arrangement allegedly because it "took offense" by a depositor who
contacted the bank directly inquiring about Global Trust Bank, defendants
quickly switched their operation to Landesbank. Under the arrangement
with Landesbank, "all funds would be deposited into one account and
[Adler and Wilkinson] would have to keep track of individual depositor's
balances as a separate ledger until" Sexton set up yet another "banking
relationship." (Id., Ex. D). Plaintiffs, however, were not told that the
funds were aggregated in one account.
Landesbank, too, grew concerned when "someone" contacted the bank
directly, "which caused the bank to discontinue accepting deposits" and
to take control of all the funds. (Id.). Defendants told plaintiffs that
their funds were safe and that Landesbank had taken control over the
funds "in order to protect" the depositors. (Id., Ex. A). Defendants also
made several veiled threats to deter depositors from contacting
Landesbank directly by stating that "any contact with Landesbank would
probably create additional delays" in resolving the matter and by
reminding depositors that defendants "have identified the individual who
created this mess and we intend to release his information to all
participants at the appropriate time." (Id.).
Plaintiffs were told their funds would be returned after an audit was
conducted. However, after a depositor called the accounting firm, the
auditors "became nervous about continuing the audit," and defendants had
to commission an audit by an accounting firm in Liechtenstein. Finally,
plaintiffs claim that their money was never returned and that Sexton and
Wilkinson would only speak through their attorneys. These allegations are
sufficient to infer defendants' fraudulent intent. Plaintiffs have
adequately alleged a claim for fraud.
Accordingly, defendants' motion to dismiss Claim One is denied.
IV. BREACH OF CONTRACT (COUNTS TWO AND THREE)
Defendants argue that the breach of contract claims are barred by the
Statute of Frauds because there is no written contract between the
parties and any oral or implied-in-fact contract could not be performed
within one year. These arguments are without merit. While plaintiffs do
not allege that there was a single, signed agreement, any reasonable
reading of the Complaint and the exhibits attached thereto alleges a
valid written contract between the parties.*fn5 Under New York law, a
written contract "may consist of several documents only some of which are
signed, provided that they clearly refer to the same transaction." R.G.
Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984), citing
Weitnauer Trading Co. v. Annia, 516 F.2d 878, 880 (2d Cir. 1975);
Crabtree v. Elizabeth Arden
Sales Corp., 305 N.Y. 48 (1953). See also Springwell Corp. v. Falcon
Drilling Co., 16 F. Supp.2d 300, 303 (S.D.N.Y. 1998) (Sotomayer, J.)
("[A] sufficient writing under the Statute of Frauds may be established
by a combination of signed and unsigned documents, letters or other
writings provided at least one writing, the one establishing a
contractual relationship between the parties, must bear the signature of
the party to be charged (or his authorized agent), while the unsigned
document must on its face refer to the same transaction as that set forth
in the one that was signed.") (citations and internal quotation marks
The multiple written communications between the parties satisfy the
Statute of Frauds. On or about December 17, 1998, Arnold Cyr sent
plaintiffs a signed letter giving an overview of the arrangement between
his company, Levite Holdings, and a Liechtenstein bank. The letter
stated, among other things, that Levite had arranged for depositors to
open individual bank accounts in Liechtenstein, depositors would have
"full control of the funds" and the "funds [would] be electronically
verified . . . without moving, hypothecating or encumbering the funds in
any way." (Compl., Ex. J). On December 22, 1998, Cyr called Helen Louros
and stated that "he had become part of the Global Trust Management Team
and that all of plaintiffs' accounts and transactions would be through
Global Trust Bank (not Levite Holdings)." (Id. ¶ 26(c)). Cyr then
sent Rose Louros written instructions how to wire money to Global Trust
Bank in Liechtenstein. (Id., id., Ex. G). In response to Cyr's
solicitation, plaintiffs' wired over $340,000 to defendants and executed
powers of attorney to enable Sexton to open bank accounts on their
behalf. Defendants promised in writing, among other things, that: 1) the
funds would be deposited in individual accounts; 2) the principal would
be guaranteed dollar for dollar; and 3) depositors would receive tax-free
interest. (Id., Exs. E, O). Additionally, defendants sent plaintiffs
letters evidencing defendants' knowledge of plaintiffs' reliance and
providing assurances of defendants' intent to perform.*fn6 For example,
in March 1999, Wilkinson sent plaintiffs a letter stating, "We look
forward to doing our best on your behalf and we know that you rely on us
to be both ethical and professional." (Compl. Ex. Q).
Thus, as alleged in the Complaint, taken together the written
communications between the parties establish a valid written contract.
Defendants next argue that even if an implied-in-fact contract is found,
it is barred by the Statute of Frauds because the plaintiffs allege that
"the contract was ongoing "from 1997 to the filing of the complaint."
(Def. Mem. at 13). This argument cannot be sustained. Under New York
General Obligations Law § 5-701, any contract that by its terms
cannot be performed within one year is void unless evidenced in writing
and signed by the party to be charged. N.Y. Gen. Oblig. §
5-701(a)(1). "The law is well-settled that for a contract to fall within
this provision of the Statute of Frauds, there must be absolutely no
possibility of performance of the contract within one year." Riley v.
N.F.S. Services, Inc., 891 F. Supp. 972, 975 (S.D.N.Y. 1995), citing
Ohanian v. Avis Rent A Car System, Inc., 779 F.2d 101, 106 (2d Cir.
1985), in turn citing 2 Corbin on Contracts § 444, at 535.
The Complaint alleges that plaintiffs were solicited in or about
December 1998 to deposit funds in a newly-formed bank in Liechtenstein
and in exchange would receive all the various private banking benefits.
Plaintiffs wired funds to defendants in Liechtenstein and executed powers
of attorney in December 1998. The asserted promises made by defendants,
including establishing and administering the bank accounts, were alleged
to be performed immediately upon receipt of the funds and powers of
The only term that defendants note that possibly gives rise to a
Statute of Frauds defense is defendants' promise to invest the funds in a
high yield investment program. Defendants argue that "plaintiffs
continuously and consistently state in their pleadings . . . that the
trading program was not finished with in [sic] three months, but was
ongoing with no termination date except by the choice of the plaintiffs."
(Def. Reply ¶ C). Defendants cite ¶¶ 26(b) and (c)(i) of the
Defendants' argument is misleading. Paragraphs 26(b) and (c)(i) do not
mention an investment program at all. Paragraph 26(b) states:
In a telephone conversation on or about December 17,
1998, Arnold Cyr stated to plaintiff, Rose that the
Investors should execute powers of attorney to James
Sexton . . . for the sole purpose of establishing their
individual bank accounts; that each plaintiff would
have an individual account in their own names and/or in
the name of an individual designated by plaintiffs; and
plaintiffs would have full control over their funds at
all times, that the power of attorney would only be
used by defendant Sexton to set up plaintiffs[']
account. He confirmed these verbal statements in an
undated letter he faxed to plaintiffs.
(Compl. ¶ 26(b)). Paragraph 26(c)(i) states:
On or about December 22, 1998, Arnold Cyr told Rose
Louros in a telephone conversation to Rose's residence
that he had become part of the Global Trust Management
Team and that all of plaintiffs' accounts and
transactions would be through Global Trust Bank (not
Levite Holdings). In said telephone conversation, he
assured plaintiff that:
at all times, the Investors['] principal was 100%
guaranteed; plaintiff would have sole control over
her account and would be able to withdraw principal
at any time.
(Id. ¶ 26(c)(1)).
In any event, the Complaint alleges that the investment program was to
begin in February 1999 and was to last three months. See Compl. ¶¶
26(c)(ii); 26(e)(i)-(ii). Additionally, defendants' own correspondence to
plaintiffs discusses an eight-week trading program. See id., Exs. B, Q.
Plaintiffs also allege that in order to participate in any investment
program, plaintiffs were required to submit appropriate paperwork. See
id., Ex. Q. Thus, plaintiffs' participation in any investment program had
to be evidenced in writing. Defendants fail to show that any
implied-in-fact contract (or oral contract for that matter) would be
barred by the Statute of Frauds. Accordingly, defendants' motion to
dismiss Counts Two and Three is denied.
V. UNJUST ENRICHMENT (COUNT SIX)
Plaintiffs also bring in the alternative a claim for unjust enrichment
stating that "defendants on behalf of the Global Trust Management Team
took possession and/or control of plaintiffs['] funds" and "refuse[d] to
return plaintiffs['] funds despite demand for their return." (Compl.
¶¶ 70, 71). Thus, plaintiffs allege, defendants have been unjustly
Defendants move to dismiss this claim arguing that since the breach of
contract claims (Counts Two and Three) are barred by the Statute of
Frauds, the unjust enrichment claim is also barred by the Statute of
Frauds. Defendants rely on Ellis v. Provident Life & Accident Insurance
Co., 3 F. Supp.2d 399 (S.D.N.Y. 1998) (Pollack, J.), aff'd, 172 F.3d 37
(2d Cir. 1999), in which the Court held on that any implied-in-fact
contract found would be void for noncompliance with the Statute of
Frauds. Defendants' reliance on Ellis is misplaced. Ellis involved a
motion for summary judgment, while the case at bar concerns a motion to
Defendants also argue that under New York law, "a claim of unjust
enrichment based upon an uncontroverted oral contract, cannot stand."
(Def. Reply ¶ E). In support of this argument, defendants cite
Huntington Dental & Medical Co., Inc. v. Minnesota Mining and
Manufacturing Co., No. 95 civ. 10959, 1998 WL 60954 (S.D.N.Y. Feb. 13,
1998), in which the court stated in dicta that "the law prevents a
plaintiff from circumventing the reach of the statute of frauds by
asserting a quasi-contract claim, such as quantum meruit or unjust
enrichment." Id. at *7. Huntington involved an alleged oral
distributorship agreement for the sale of goods. The court dismissed a
breach of contract claim in part because the oral contract was barred by
the Statute of Frauds as the contract was for an indefinite duration. The
court then dismissed the claims for unjust enrichment and quantum meruit
for failure to allege the elements of those causes of action.*fn8
Defendants' reliance on Huntington is also without merit. First, it
cannot be said at this point in the proceedings that the court is dealing
with "an uncontroverted oral contract." As discussed above, plaintiffs
have sufficiently alleged a written contract. Second, as held above, even
assuming the parties had an oral or implied-in-fact contract, such
contract is not subject to the Statute of Frauds as it could be performed
within one year. Third, defendants do not argue that plaintiffs fail to
plead the elements of unjust enrichment.*fn9
Accordingly, defendants' motion to dismiss Count Six is denied.
VI. CONVERSION (COUNTS FOUR AND FIVE)
Plaintiffs claim that defendants converted more than $340,000 of their
money when they "took possession, custody and control" over the money and
subsequently refused to return it. Defendants argue that plaintiffs'
claims fail because the Complaint does not specify "which defendant
received, has possession of the funds, or which of them has or had the
power to return the funds." (Def. Reply ¶ D). This argument cannot be
sustained. Under New York law, "[c]onversion is any unauthorized exercise
of dominion or control over property by one who is not the owner of the
property which interferes with and is in defiance of a superior possessory
right of another in the property." Meese v. Miller, 436 N.Y.S.2d 496, 500
(N.Y.App. Div. 198 1); Van Syckle v. C.L. King and Assocs., Inc.,
822 F. Supp. 98, 106 (N.D.N.Y. 1993) (finding that "party who wrongfully
sells stock of another may be found guilty of conversion"). To maintain a
viable claim for conversion, plaintiffs must allege that "a demand for
the return of property was made and that a refusal to comply with this
demand followed." Schloss v. Danka Business Systems PLC, No. 99 Civ.
817, 2000 WL 282791, *7 (S.D.N.Y. March 16, 2000) (citing Tompkins v.
Fonda Glove Lining Co., 188 N.Y. 261 (N.Y. 1907)); aff'd, 2000 WL 1715262
(2d Cir. Nov. 13, 2000); Granat v. Center Art Galleries-Hawaii, Inc.,
No. 91 Civ. 7252, 1993 WL 403977, *7 (S.D.N.Y. Oct. 6, 1993) (finding
that defendants' alleged refusal to return painting satisfies grounds for
conversion claim). Plaintiffs adequately plead claims of conversion.
Plaintiffs allege that all the named defendants worked together as The
Global Trust Management Team and that defendants worked in concert to
effect the banking scheme. It is undisputed that in accordance with
instructions by Wilkinson, Cyr and Johnson, plaintiffs wired over
$340,000 to Liechtenstein and executed powers of attorney appointing
Sexton attorney-in-fact for the sole purpose of establishing individual
bank accounts for plaintiffs in the newly-formed Liechtenstein bank.
Defendants' receipt and possession of plaintiffs' money is evidenced by
the account statements prepared by Wilkinson and Adler and sent to
plaintiffs by Adler. Additionally, The Global Trust Management Team sent a
letter to plaintiffs dated March 22, 1999 stating that there would soon
be a return of all funds. Finally, plaintiffs allege that they demanded
return of the money and that defendants refused. (Comp. ¶¶ 62, 67).
Plaintiffs state a cause of action for conversion.
Accordingly, defendants' motion to dismiss Counts Four and Five is
VII. BREACH OF FIDUCIARY DUTY (COUNT SEVEN)
Plaintiffs allege that a fiduciary relationship existed between
plaintiffs and the Global Trust Management Team and that defendants
breached their fiduciary duty. In support, plaintiffs claim that they
executed powers of attorney appointing Sexton attorney-in-fact "pursuant
to instructions of Arnold Cyr, Douglas Johnson, Ken Adler and Kevin
McGeever, which powers of attorney were forwarded by defendant Wilkinson
to either Arnold Cyr and/or Adler for plaintiffs to sign." (Id. ¶
Plaintiffs also assert that the relationship between the parties was
that of "a depositor and Private Investment Bank." (Id. ¶ 74(b)).
For the reasons stated below, this claim is dismissed.
Plaintiffs claim that their grant of a power of attorney to Sexton
created a fiduciary relationship between plaintiffs
and defendants. This claim cannot be sustained. First, James Sexton has
never been served or has never appeared in this action. Second, even if
Sexton was a party to this action, the limited grant of the power of
attorney by plaintiffs did not necessarily give rise to a fiduciary
relationship. "In general, a written power of attorney is a formal
contract and creates a principal/agent relationship. However, an agency
relationship only exists if the agent acts primarily for the benefit of
the principal and not for himself." Northwestern National Insurance
Company of Milwaukee, Wisconsin v. Alberts, 769 F. Supp. 498, 508
(S.D.N.Y. 1991), citing Restatement of Agency 2d § 14(d) (1988).
Here, Sexton required all depositors to execute a power of attorney
designating him attorney-in-fact for the sole purpose of establishing the
individual bank accounts. However, Sexton was not acting as a mere agent
of plaintiffs. Rather, he played a primary role in the development of the
entire private banking scheme and received a $25,000 fee from Johnson and
McGeever for his services. "The purpose of [plaintiffs'] grant of power
of attorney to [Sexton] was merely to facilitate the transaction."
Id. Therefore, there is no fiduciary relationship between plaintiffs
and Sexton. In addition, the power of attorney to Sexton did not create a
fiduciary duty in the other defendants. Thus, the power of attorney
naming Sexton did not create a fiduciary relationship between the
plaintiffs and defendants. Plaintiffs also describe their relationship
with defendants as one between a debtor and an investment bank. Under New
York law, "the underlying relationship between a bank and its depositor
is the contractual one of debtor and creditor." Merrill Lynch, Pierce,
Fenner & Smith v. Chemical Bank, 57 N.Y.2d 439, 444 (N.Y. 1982); Aaron
Ferer & Sons Ltd. v. Chase Manhattan Bank, National Assoc., 731 F.2d 112,
122 (2d Cir. 1984) ("New York law is clear that the usual relationship of
bank and customer is that of a debtor and creditor."). As such, a bank
does not owe a fiduciary duty to its customers. In re Gas Reclamation,
Inc. Securities Litigation, 741 F. Supp. 1094, 1104; Aaron Ferer & Sons,
731 F.2d at 122.
Plaintiffs have not alleged any facts to support their claim that a
fiduciary relationship existed between plaintiffs and defendants.
Accordingly, Count Seven is dismissed.
VII. NEGLIGENCE (COUNT NINE)
Plaintiffs claim that defendants "undertook to perform and/or agreed to
perform certain banking and investment services" and were careless,
reckless and negligent in the performance of the banking services and
investment services." (Compl. ¶¶ 85, 87). Despite plaintiffs'
conclusory statement that "defendants had a duty to perform [the banking]
services with due care," the Complaint does not allege that defendants
had any duty to plaintiffs outside the contractual debtor-creditor
relationship. Accordingly, Count Nine is dismissed.
VIII. VIOLATIONS OF NEW YORK BANKING AND GENERAL
BUSINESS LAWS (COUNT EIGHT)
Plaintiffs allege that defendants violated New York State General
Business Law § 349 and New York State Banking Law §§ 131, 132 and
180 by soliciting and receiving deposits from plaintiffs, performing
banking services and using the words "bank," "banking" and "trust" in
their written materials. (Compl. ¶¶ 79-83).
Defendants argue that plaintiffs lack standing to bring this claim.
adequately briefed its arguments, but rather each made conclusory
statements to support its position.
For the following reasons, plaintiffs' claim is dismissed.
New York General Business Law § 349 states in
relevant part that [d]eceptive acts or practices in
the conduct of any business, trade or commerce or in
the furnishing of any service in this state are hereby
N.Y. Gen. Bus. Law § 349(a). In addition, § 349(h) provides a
private right of action enabling any person who has been injured by reason
of any violation of this section [to] bring an action in his own name to
enjoin such unlawful act or practice.
N.Y. Gen. Bus. Law § 349(h). However, § 349(h) is not a general
provision permitting an individual to bring any action involving a
business dispute. Rather, § 349 is part of the New York Consumer
Protection Act and as such "was designed to govern only those marketplace
abuses which affect the public interest or also cause injury to the
public." O'Connor v. Reader's Digest Association, Inc., No. 92 Civ. 7414,
1993 WL 291372, *3 (S.D.N.Y. 1993). "Indeed, the gravamen of the complaint
must be consumer injury or harm to the public interest." Sports Traveler
v. Advance Magazine Publishers, Inc., No. 96 Civ. 5150, 1997 WL 137443,
*2 (S.D.N.Y. 1997) (internal quotation marks and citation omitted).
Further, "federal courts have interpreted the statute's scope as limited
to the types of offenses to the public interest that would trigger
Federal Trade Commission intervention Id.
As a threshold matter, plaintiffs fail to address the issue of whether
defendants' alleged deceptive acts and practices even meet the definition
of conducting business, trade or commerce or furnishing a service in New
York State. As alleged, defendants solicited plaintiffs in New York;
however the bank was to be established in Liechtenstein, and the actions
complained of allegedly occurred in Liechtenstein and in states other
than New York. Additionally, the Global Trust Limited letterhead has
either "Vaduz, Liechtenstein" or a Georgia fax number printed on it, see
e.g., Compl., Exs. E, F, and Cyr worked from Clermont, Florida, see id.,
Exs. G, J.
In any event, plaintiffs fail to plead the public interest requirement
of § 349. The Complaint alleges damages to plaintiffs personally.
Additionally, the alleged actions come nowhere within the scope of
potential danger to the public health or safety.
Plaintiffs also make the conclusory allegation that defendants violated
New York Banking Law §§ 131, 132 and 180.*fn10
Plaintiffs do not respond to defendants' argument that they lack standing
to bring an action under §§ 131, 132 and 180 but rather argue that
§ 349(g)*fn11 "provide[s] that . . . a deceptive practices claim
would include, but not be limited to, defendants['] breach of laws, such
as" §§ 131, 132 and 180. (Pl. Mem. at 12). Plaintiffs' misapprehend
§ 349(g). Section 349(g) merely states that the scope of deceptive
acts or practices is not restricted to those acts subject to other legal
At the same time, § 349 does not limit or affect the authority of
the attorney general to enforce other laws. Section 349 does not provide
a private right of action for individuals to enforce any New York State
law and plaintiffs do not cite (and could not cite) any authority holding
that § 349 provides a private right of action to enforce any New York
State law regardless of a plaintiff's standing under that particular
In any event, even if § 349 gave plaintiffs standing to bring an
action pursuant to §§ 131, 132 and 180, as discussed above, plaintiffs
fail to demonstrate that defendants were conducting banking business in
New York State and fail to plead how violations of the banking sections
meet the public interest requirement of § 349. Accordingly, Count
Eight is dismissed.
IX. PERSONAL JURISDICTION OVER DEFENDANT WILKINSON
A. Standard Applicable to Motion to Dismiss
Plaintiffs bear the ultimate burden of establishing that the court has
jurisdiction over a defendant. Kernan v. Kurz-Hastings, Inc., 175 F.3d 236,
240 (2d Cir. 1999); Metropolitan Life Ins. Co. V. Robertson Ceco-Corp.,
84 F.3d 560, 566 (2d Cir. 1996). The burden of proof plaintiffs must meet
varies with the procedural posture of the case. Prior to discovery,
plaintiffs need only make a prima facie showing through the pleadings and
affidavits that jurisdiction exists. Id., citing Ball v. Metallurgie
Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990). In determining
whether the plaintiffs have met this burden on a Rule 12(b)(2) motion,
the court must assume that all of the plaintiffs' factual allegations are
true, and all "doubts are resolved in the plaintiffs' favor,
notwithstanding a controverting presentation by the moving party." A.I.
Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993).
Ultimately, however, the plaintiffs must establish personal
jurisdiction by a preponderance of the evidence, either at an evidentiary
hearing or at trial. Id. at 79.
B. Personal Jurisdiction
Personal jurisdiction in a diversity case is determined first by the
law of the state in which the district court sits. Kernan, 175 F.3d at
240; Arrowsmith v. U.P.I., 320 F.2d 219, 223 (2d Cir. 1963). Then if
jurisdiction is found under state law, the court must examine whether
exercise of that jurisdiction "comports with the requisites of due
process." Bensusan Restaurant Corp. v. King, 126 F.3d 25, 27 (2d Cir.
1. New York's Jurisdictional Statute Plaintiffs seek to ground
jurisdiction upon § 302(a)(2) of New York's long-arm statute, which
states in relevant part:
As to a cause of action arising from any of the acts
enumerated in this section, a court may exercise
personal jurisdiction over any non-domiciliary, or his
executor or administrator, who in person or through an
2. commits a tortious act within the state,
except as to a cause of action for defamation
of character arising from the act. . . .
It is undisputed that defendant Wilkinson was never present in New York
to promote, manage or administer the Liechtenstein banking scheme.
However, plaintiffs argue that Wilkinson performed purposeful conduct in
New York by faxing letters or documents to New York. (Pl. Mem. at 14).
The Complaint only mentions some minor direct contacts that Wilkinson had
with the plaintiffs in New York. For example, Wilkinson faxed a letter to
plaintiffs in New York on March 14, 1999. (Compl. ¶ 17; id., Ex. Q).
The letter informed plaintiffs that the original investment program had
"changed dramatically" but that the Global Trust Management Team had
located a new program, "which we believe will meet the goals and
objectives of all Participants."
Additionally, plaintiffs state that Wilkinson "prepared, managed and/or
supervised the preparation of depositor account statements, including
plaintiff's [sic], which were sent to plaintiffs in New York." (Id.
¶ 21(q)). While these allegations are evidence of Wilkinson's
participation in the banking scheme, they alone are insufficient to confer
jurisdiction over him pursuant to § 302(a)(2). "[F]ederal cases
construing § 302(a)(2), including a 1986 decision by the Second
Circuit, have uniformly held that jurisdiction under [this] section
cannot be predicated on telephone calls made or letters mailed into this
State." Stein v. Annenberg Research Institute, No. 90 Civ. 5224, 1991 WL
143400, at *3 (S.D.N.Y. July 19, 1991), citing Fox v. Boucher, 794 F.2d 34
(2d Cir. 1986).
Plaintiffs argue that jurisdiction over Wilkinson can be exercised
pursuant to an agency theory of personal jurisdiction or by the act of a
co-conspirator. Under New York law, a court "may exercise jurisdiction
over a defendant who acted through an agent even if that defendant never
physically entered New York."
In re Sumitomo Copper Litigation, 120 F. Supp.2d 328, 336 (S.D.N.Y.
2000) (Pollack, J.) A formal agency relationship is not required to
establish that an out-of-state defendant acted through his agent. Id.
Plaintiffs need `only convince the court that [the
agent] engaged in purposeful activities in this State
in relation to [plaintiffs'] transaction for the
benefit of and with the knowledge and consent of
the  defendants and that they exercise[d] some
control over [the agent] in the matter.'
Id., quoting Karabu Corp. v. Gitner, 16 F. Supp.2d 319, 323 (S.D.N.Y.
1998), in turn quoting Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 467
(N.Y. 1988) (changes in original).