United States District Court, S.D. New York
March 1, 2004.
JOEL ROSS, ROSS PROPERTIES, INC. and CITADEL REALTY GROUP, LLC, Plaintiff, -against- UKI LTD., TONEX HOLDINGS, LTD., JACOB SCHIMMEL, MARC SCHIMMEL and HAROLD SCHIMMEL, Defendants
The opinion of the court was delivered by: WILLIAM PAULEY, District Judge
MEMORANDUM AND ORDER
In this breach of contract and quantum meruit action,
plaintiffs Joel Ross ("Ross"), Ross Properties, Inc. ("Ross Properties"),
and Citadel Realty Group, LLC ("Citadel") allege that defendants UKI Ltd.
("UKI"), Tonex Holdings, Ltd. ("Tonex"), Jacob Schimmel, Abraham Moses
Schimmel ("Marc Schimmel"), and Harry C. Schimmel breached a series of
oral brokerage agreements with plaintiffs. Currently before this Court
are motions to dismiss this action for lack of personal jurisdiction,
pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, by
defendants Harry Schimmel, Marc Schimmel, and Tonex. For the reasons set
forth below, Harry Schimmel's motion is granted, and Marc Schimmel's and
Tonex's motions are denied.
I. The Parties
Ross is a licensed real estate broker in New York, and a principal in
two New York-based real estate brokerage agencies, Ross Properties and
Citadel. (Affidavit of Joel Ross in Opposition to Motion to Dismiss,
dated May 22, 2003 ("Ross Aff.") ¶ 2; Complaint ("Compl.") ¶¶
1-3.) UKI is a United Kingdom limited liability company, based in London,
that serves as an advisor and asset manager for real estate investors.
(Declaration of Abraham Moses Schimmel, dated January 15, 2003 ("M.
Schimmel Decl.") ¶ 10.) Tonex is a holding company, organized under
the laws of Gibraltar, that owns various subsidiaries that invest in real
estate and other assets. (Declaration of Maurice Moses Benady, dated
March 27, 2003 ("Benady Decl.") ¶ 3.) Tonex is beneficially owned by
a trust whose beneficiaries are members of the Schimmel family. (Ross
Decl. ¶¶ 27-28, Exs. 9, 11, 20, 26, 42-44.) Jacob Schimmel and Marc
Schimmel, U.K. citizens who reside in London, England, are officers,
directors, and shareholders of UKI. (M. Schimmel Decl. ¶¶ 2, 10;
Declaration of Jacob Schimmel, dated June 20, 2003 ("J. Schimmel Decl.")
¶ 1; Compl. ¶ 6.) Harry Schimmel, Jacob and Marc Schimmel's
father, is a U.K. citizen who has at times served as a consultant to UKI.
(Declaration of Harry C. Schimmel, dated March 21, 2003 ("H. Schimmel
Decl.") ¶¶ 2, 11.)
In October 1998, Ross was introduced to Jacob and Marc Schimmel, and
agreed to assist the Schimmels in accessing sources of capital in the
United States for various real estate acquisitions. (Ross Decl. ¶ 6.)
Ross claims that although he personally dealt with Jacob and Marc
Schimmel, they were "young, inexperienced and unsophisticated with
regard to real estate financing, " and that Harry Schimmel was in fact
the "head . . . of the entire Schimmel real estate empire." (Ross Decl.
II. The Westbrook Transactions
In October 1998, Ross introduced Marc and Jacob Schimmel to the
principals of Westbook Partners, LLC ("Westbrook"), an opportunity fund
based in New York that targeted real-estate investments. (Ross Decl.
¶ 9.) Over the course of the next few months, Ross, on behalf of
Jacob and Marc Schimmel, negotiated a joint venture with Westbrook (the
"Westbrook Joint Venture") in which the Schimmels would provide 10% of
the equity and Westbrook would provide 90%, with the Schimmels managing
the acquired properties. (Ross Decl. ¶¶ 10, 11.)
On November 4, 1998, UKI, by Marc Schimmel, entered into an agreement
with Ross Properties (the "Joint Venture Agreement") under which Ross
Properties was to be paid a commission based on the equity contributed by
acquisitions of property by the Westbrook Joint Venture. (Ross
Decl. ¶ 12, Ex. 3.) Ross was paid approximately $1.5 million under
the Joint Venture Agreement. (Ross Decl. ¶ 14, Ex. 5.)
While the Complaint and opposing declaration are far from clear on this
point, Ross also appears to allege that he entered into a simultaneous
oral agreement with the Schimmels at the time of the Joint Venture
Agreement (the "Westbrook Oral Agreement"). Under the Westbrook Oral
Agreement, Ross was to receive a brokerage commission of 1% of the gross
proceeds of any transaction, other than those covered under the Joint
Venture Agreement, involving the Schimmels (or any related entity) and
Westbrook. (Compl. ¶ 14.)
A. The British Land Agreement
In March 1999, Tonex, through a wholly-owned subsidiary Allerbeck
Limited, purchased a portfolio of properties from The British Land
Company, PLC (the "Bond Portfolio"). (Ross Decl. ¶ 30, Exs. 13, 25.)
Tonex financed the acquisition of the Bond Portfolio through a secured
loan facility with a German bank, DG Bank AG (the "British Land
Agreement"). (Ross Decl. Ex. 13; Compl. ¶ 18.) Ross alleges, however,
that Tonex first procured a viable offer from Westbrook to fund the
acquisition of the Bond Portfolio (the "Westbrook Offer"), and then
leveraged the Westbrook Offer to obtain a more favorable deal from DG
(Ross Decl. ¶ 31; Compl. ¶ 18.) Ross claims that, under the
terms of the Westbrook Oral Agreement, he is entitled to a 1% brokerage
commission on the British Land Agreement. Ross alleges that Jacob
Schimmel acknowledged this debt, but that Marc Schimmel refused to pay
it, stating that "we will do a lot more business with you [Ross] in the
future and will make it up to you that way." (Ross Decl. ¶¶ 31-32.)
B. Project Alliance
In March 2001, Jacob Schimmel told Ross that the Schimmel family
desired to sell many of their properties. (Ross Decl. ¶ 42.) Ross
suggested to Jacob Schimmel that the family sell certain of their
properties to Westbrook, and reminded him that if they did so, Ross would
be owed a 1% commission under the Westbrook Oral Agreement. (Ross Decl.
¶ 42.) Jacob Schimmel agreed. (Ross Decl. ¶¶ 42-43, 47.) Later
that year, Westbrook, along with another fund, purchased a $573,000,000
portfolio of properties beneficially owned by Marc Schimmel, Jacob
Schimmel, and Tonex ("Project Alliance"). (Ross Decl. ¶¶ 44-45, Exs.
11, 30-32; Compl. ¶ 15.) Ross claims that, under the terms of the
Westbrook Oral Agreement, he is owed a 1% commission as a result of
III. The GMAC Transactions
In Spring 2000, Jacob Schimmel informed Ross that "the Schimmel family"
was contemplating a possible takeover of Great Portland Estates Plc.
("Great Portland"), a publicly-traded real estate investment company in
the U.K. (Ross Decl. ¶ 36.) In order to meet the Schimmel's need for
a substantial amount of financing to complete the Great Portland
takeover, Ross set up a series of meetings for Jacob and Marc Schimmel
with officers of GMAC Commercial Mortgage ("GMAC") in New York. (Ross
Decl. ¶ 37.)
On or about April 13, 2000, Ross and Jacob Schimmel entered into
another oral agreement (the "GMAC Oral Agreement") pursuant to which Ross
would be paid a fee of 1% of any senior financing and 2% of any mezzanine
financing obtained from GMAC by the Schimmels and their related entities.
(Ross Decl. ¶ 38; Compl. ¶ 22.) Although both Marc and Jacob
Schimmel attended meetings with GMAC in New York through Summer 2000, the
Great Portland transaction was never completed. (Ross Decl. ¶¶ 39-41,
Ex. 29.) Ross, however, continued to cultivate the GMAC relationship on
behalf of the Schimmels with an eye toward future deals. (Ross Decl.
In October 2002, Tonex acquired certain properties in the U.K.
("Project Aston Martin"). (Ross Decl. ¶¶ 54-55, Exs. 39-40.) GMAC
financed Project Aston Martin, providing Tonex with
a $210,000,000 loan facility. (Ross Decl. ¶ 54, Exs. 39-43;
Compl. ¶ 23.) Ross claims that GMAC made additional loans to the
Schimmels and related entities in excess of $785,000,000. (Ross Decl.
¶ 54; Compl. ¶¶ 24-27.) Ross claims that under the terms of the
GMAC Oral Agreement, he is owed a commission on these loans.
I. Rule 12(b)(2) Standards
On a motion to dismiss for lack of personal jurisdiction pursuant to
Rule 12(b)(2), the plaintiff bears the burden of showing that the court
has jurisdiction over the moving defendant(s). Metro. Life Ins. Co.
v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996). To satisfy
that burden where, as here, the parties have conducted jurisdictional
discovery but no evidentiary hearing has been held, a plaintiff need only
make a prima facie showing of personal jurisdiction.
Metro. Life Ins., 84 F.3d at 567. Such a prima facie showing
is satisfied by "an averment of facts that, if credited by [the ultimate
trier of fact], would suffice to establish jurisdiction over the
defendant." Ball v. Metallurgie Hoboken-Overpelt, S.A.,
902 F.2d 194, 197 (2d Cir. 1990).
In reviewing a Rule 12(b)(2) motion, a court must construe all
pleadings and affidavits "in the light most
favorable to the plaintiff and doubts are resolved in the plaintiff's
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); accord Metro. Life Ins., 84 F.3d at 567;
Landoil Res. Corp. v. Alexander & Alexander Servs., Inc.,
918 F.2d 1039, 1043 (2d Cir. 1990). However, a plaintiff may not rely
merely on conclusory statements or allegations to establish jurisdiction.
Ball, 902 F.2d at 197.
II. Exercise of Personal Jurisdiction
In a federal diversity case such as this, the resolution of issues
concerning personal jurisdiction are governed by the law of the state in
which the district court sits. DiStefano v. Carozzi N. Am.,
Inc., 286 F.3d 81, 84 (2d Cir. 2001); CutCo Indus., Inc. v.
Naughton, 806 F.2d 361, 365 (2d Cir. 1986). Accordingly, New York
law controls personal jurisdiction in this action. The issue currently
before this Court is whether the moving defendants are subject to
personal jurisdiction under New York law on the theory that they
transacted business within the meaning of Section 302(a)(1) of the New
York Civil Practice Law and Rules ("CPLR"), a provision of New York's
long-arm statute, and, if so, whether doing so comports with
constitutional due process guarantees. See Int'l Shoe Co. v. State
of Washington, 326 U.S. 310, 316 (1945); accord
Metro. Life Ins., 84 F.3d at 567 ("[T]he amenability of a
foreign corporation to suit in a federal court in a diversity action is
determined in accordance with the law of the state where the court sits,
with `federal law' entering the picture only for the purpose of deciding
whether a state's assertion of jurisdiction contravenes a constitutional
guarantee.") (quoting Arrowsmith v. United Press Int'l.
320 F.2d 219, 223 (2d Cir. 1963) (en banc)).
A. Jurisdiction Under CPLR 302(a)(1)
CPLR 302(a)(1) permits a court to exercise jurisdiction over a person
or entity that "in person or through an agent . . . transacts business
within the state or contracts anywhere to supply goods and services in
the state."*fn1 N.Y. CPLR § 302(a)(1) (McKinney's 2004).
Specifically, jurisdiction under CPLR 302(a)(1) is proper where: (1) the
defendant has transacted business in New York; and (2) the cause of
action arises out of the subject matter of the transacted business.
CutCo Indus., 806 F.2d at 365.
First, a non-domiciliary transacts business under CPLR 302(a)(1) where
he "purposefully avails [himself] of the privilege of conducting
activities within [New York], thus invoking the benefits and protections
of its laws." CutCo
Indus., 806 F.2d at 365 (quoting McKee Elec. Co. v.
Rauland-Borg Corp., 20 N.Y.2d 377, 382 (1967)). A court must look to
the totality of the circumstances in deciding whether the defendant has
engaged in such purposeful activity. CutCo Indus., 806 F.2d at
365. Second, the court must find "some articulable nexus between the
business transacted and the cause of action sued upon." McGowan v.
Smith, 52 N.Y.2d 268, 272 (N.Y. 1981); accord Kreutter v.
McFadden Oil Corp., 71 N.Y.2d 460, 467 (N.Y. 1988) (requiring a
"substantial relationship between the transaction and the claim
asserted"); see also PDK Labs, Inc. v. Freidlander,
103 F.3d 1105, 1109 (2d Cir. 1997); Agency Rent a Car Sys., Inc. v. Grand
Rent a Car Corp., 98 F.3d 25, 29-31 (2d Cir. 1996); CutCo
Indus., 806 F.2d at 365. In a breach of contract case, the pivotal
inquiry is "whether the defendant has performed purposeful acts in New
York in relation to the contract." A.C.K. Sports, Inc. v. Doug
Wilson Enters., 661 F. Supp. 386, 390 (S.D.N.Y. 1989).
In addition to affirmative acts, jurisdiction is also
appropriate under CPLR 302(a)(1) pursuant to the so-called "agency
theory." To be considered an agent for jurisdictional purposes, the
putative agent must have acted in the state "for the benefit of, and with
the knowledge and consent of" the non-resident principal. Grove
Press, Inc. v. Angleton, 649 F.2d 121, 122 (2d Cir. 1981);
accord Galgav v. Bulletin Co., Inc.,
504 F.2d 1062, 1065 (2d Cir. 1974) (an agent must act "at the request
and for the business purposes of" the principal). In addition, the Second
Circuit has interpreted CPLR 302(a)(1) to require a showing that the
principal exercised some control over the activities of the alleged
agent. CutCo Indus., 806 F.2d at 366; accord Grove
Press, 649 F.2d at 122 ("[A] showing must be made that the alleged
agent acted in New York for the benefit of, with the knowledge and
consent of, and under some control by, the nonresident principal.").
Thus, if plaintiffs can demonstrate that personal jurisdiction vests over
an agent of one of the moving defendants, and that the agent acted on
behalf of the moving defendant in the transaction at issue, personal
jurisdiction will be imputed to the moving defendant.
B. Due Process
In addition to determining whether the New York long-arm statute
extends the state's jurisdiction over a non-domiciliary defendant, a
court must also determine whether exercise of this jurisdiction comports
with federal due process. Bank Brussels Lambert v. Fiddler Gonzalez
& Rodriguez, 305 F.3d 120, 127 (2d Cir. 2002). To do so, a court
must undertake a two-step analysis: (1) a "minimum contacts" inquiry; and
(2) a "reasonableness" inquiry. Bank Brussels Lambert, 305 F.3d
at 127; Metro. Life Ins., 84 F.3d at 567.
Under the "minimum contacts" inquiry, a court must determine whether
the defendant "has `certain minimum contacts [with the forum]. . . such
that the maintenance of the suit does not offend traditional notions of
fair play and substantial justice.'" U.S. Titan, Inc. v. Guangzhou
Zhen Hua Shipping Co., 241 F.3d 135, 152 (2d Cir. 2001) (quoting
Calder v. Jones, 465 U.S. 783, 788 (1984)) (alteration in
original and internal citations omitted). To establish minimum contacts
with New York, a plaintiff must show that the moving defendant
"purposefully availed" himself of the privilege of doing business in New
York and "should reasonably anticipate being haled into court there."
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980); accord Burger King Corp. v. Rudzewicz, 471 U.S. 462,
475 (1985) (requiring that "there be some act by which the defendant
purposely avails itself of the privilege of conducting activities within
the forum State, thus invoking the benefits and protections of its
Under the second step of the due process analysis, a court must
determine "whether the assertion of personal jurisdiction comports with
`traditional notions of fair play and substantial justice' that
is, whether it is reasonable under the circumstances of the particular
case." Metro. Life Ins., 84 F.3d at 568 (quoting Int'l
Shoe, 326 U.S. at 316). In evaluating reasonableness, courts must
consider the following five factors:
"(1) the burden that the exercise of jurisdiction will impose on
the defendant; (2) the interests of the forum state in adjudicating the
case; (3) the plaintiff's interest in obtaining convenient and effective
relief; (4) the interstate judicial system's interest in obtaining the
most efficient resolution of the controversy; and (5) the shared interest
of the states in furthering substantive social policies." Metro.
Life Ins., 84 F.3d at 568; accord Asahi Metal Indus. Co. v.
Superior Court, 480 U.S. 102, 113-14 (1987); Burger King,
471 U.S. at 476-77; Bank Brussels Lambert, 305 F.3d at 129.
III. Defendant Harry Schimmel
Even after construing all pleadings and affidavits in the light most
favorable to plaintiffs, and resolving all doubts in their favor,
plaintiffs are unable to make a prima facie showing of personal
jurisdiction over defendant Harry Schimmel. Harry Schimmel is a citizen
and resident of the U.K., and it is undisputed that he undertook no
affirmative acts in New York with respect to the transactions at issue.
Further, the indirect actions alleged by plaintiffs are insufficient to
establish jurisdiction under either the CPLR or federal due process.
For example, while plaintiffs assert generally that Harry Schimmel was
a consultant to UKI and therefore personally benefitted from the
transactions at issue, they present no
evidence to rebut defendants' specific averment that Harry
Schimmel's consultancy was limited to properties managed by UKI that
pre-dated the earliest of the Ross transactions. (H. Schimmel Decl. ¶
11; Reply Declaration of Harry C. Schimmel, dated June 19, 2003 ("H.
Schimmel Reply Decl.") ¶ 5.) See, e.g., Kreutter, 71 N.Y.2d
at 467 (must be a "substantial relationship between the transaction and
the claim asserted"); McGowan, 52 N.Y.2d at 272 (must find
"some articulable nexus between the business transacted and the cause of
action sued upon").
Further, plaintiffs claim that this Court may exercise jurisdiction
over Harry Schimmel pursuant to an agency theory on the grounds that he
was a beneficial owner of at least some of the properties sold to
Westbrook pursuant to Project Alliance. However, this Court may not
exercise jurisdiction over Harry Schimmel under the agency theory absent
any proof that he knew about, authorized, and exercised some control over
the actions of Jacob Schimmel, Marc Schimmel, UKI, or Ross with respect
to the Westcliff Oral Agreement. (H. Schimmel Decl. ¶ 11; H. Schimmel
Reply Decl. ¶¶ 11, 13, 15.) See, e.g., Grove Press, 649 F.2d
at 122 (in order to exercise jurisdiction over an agent, a court must
find that the agent "acted in New York for the benefit of, with the
knowledge and consent of, and under some control by, the nonresident
principal"); Drucker Cornell v. Assicurazioni Generali S.p.A.,
Consol., Nos. 97 Civ. 2262, 98 Civ. 9186 (MBM),
2000 WL 284222, at *6 (S.D.N.Y. March 16, 2000) (in finding no
jurisdiction under agency theory, stating "plaintiffs cannot rely upon
such wholly non-specific allegations as the sole basis for connecting
[defendant] to the alleged conspiracy").
Finally, plaintiffs' allegation that Harry Schimmel was the Chairman of
UKI, and therefore is subject to the jurisdiction of this Court based on
UKI's contacts, is unavailing. Even if Harry Schimmel were Chairman of
UKI (Ross Decl. Ex. 2), plaintiffs make no effort to pierce UKI's
corporate veil, nor could they on the record before this Court. Harry
Schimmel's position with UKI does not by itself subject him to the
jurisdiction of this Court. See, e.g., Black v. USA Travel
Auth., No. 99 Civ. 11278 (WHP), 2001 WL 761070, at *4 (S.D.N.Y. July
6, 2001) ("It is well-settled that `where a corporation is doing business
in New York, an officer of the corporation does not subject himself,
individually to . . . jurisdiction unless he is doing business in [New
York] individually.'") (quoting United Mizrahi Bank Ltd. v.
Sullivan, No. 97 Civ. 9282 (LMM), 2000 WL 1678040, at *3 (S.D.N.Y.
Nov. 6, 2000)).
The gravamen of plaintiffs jurisdictional allegations concerning Harry
Schimmel are that he is the "patriarch of the Schimmel family" and
"de facto head of the Schimmel family empire." (Pl. Opp. at 1,
18; see also Ross Decl. ¶¶ 7-8 (Harry Schimmel is the
"head . . . of the entire Schimmel real estate
empire.").) Such conclusory allegations are insufficient to support
a prima facie showing of personal jurisdiction under the New York
long-arm statute, and do not comport with constitutional due process
requirements. See Ball, 902 F.2d at 197. Accordingly, Harry
Schimmel's Rule 12(b)(2) motion is granted, and all claims against
defendant Harry C. Schimmel are dismissed.*fn2
IV. Defendants Marc Schimmel and Tonex
In contrast to their allegations concerning Harry Schimmel, plaintiffs
have made out a sufficient prima facie case for this Court's
exercise of personal jurisdiction over both Marc Schimmel and Tonex under
an agency theory. Plaintiffs have alleged that Marc Schimmel knew of and
consented to actions by
Jacob Schimmel, UKI, and Ross in New York, and that he exercised at
least "some control" over those actions. See Grove Press, 649
F.2d at 122. For example, Marc Schimmel played an active role in the
negotiation of the Joint Venture Agreement in both his personal and
corporate capacities (Ross Decl. ¶ 10-11), while directly and
personally benefitting from Project Alliance (Ross Decl. ¶¶ 44-45,
Exs. 11, 30-32). See CutCo Indus., 806 F.2d at 366 ("[W]here there is
joint control of a business enterprise similar to that existing
in a partnership or joint venture enough control has been shown
to establish prima facie this particular element of agency to
satisfy long-arm jurisdiction.").
In addition, Marc Schimmel was intimately involved in the negotiation
of the failed Great Portland takeover, which led directly to the GMAC
Oral Agreement and Project Aston Martin. (Ross Decl. ¶¶ 39-41, Ex.
29.) See, e.g., Kreutter, 71 N.Y.2d at 467 (must be a
"substantial relationship between the transaction and the claim
asserted"). Therefore, at this stage of the proceedings, Marc Schimmel
may be presumed to have consented to, and exercised some control over,
the execution of the Westbrook Oral Agreement and GMAC Oral Agreement in
New York, thus subjecting him to jurisdiction under CPLR 302(a)(1).
See A.I. Trade Fin., 989 F.2d at 79-80 (court must construe all
pleadings and affidavits "in the light most favorable to the plaintiff
and doubts are resolved in the plaintiff's favor, notwithstanding a
controverting presentation by the moving party.")
(emphasis added); see also CutCo Indus., 806 F.2d at 366
("Under traditional agency law, joint participation in a partnership or
joint venture establishes `control' sufficient to make each partner or
joint venturer an agent of the others.").
Further, exercising personal jurisdiction over Marc Schimmel comports
with the requirements of the due process clause. Through his actions and
the actions of his agents, Marc Schimmel purposefully availed himself of
the privilege of doing business with plaintiffs in New York, and could
reasonably anticipate having to defend his actions in a New York court.
World-Wide Volkswagen, 444 U.S. at 297. As a result, Marc
Schimmel has sufficient "minimum contacts" with New York such that the
exercise of this Court's jurisdiction over him "does not offend
traditional notions of fair play and substantial justice."
Calder, 465 U.S. at 788. Further, after considering the factors
established by the Supreme Court in Metro. Life Ins., 84 F.3d
at 568, this Court's exercise of jurisdiction over Marc Schimmel is
reasonable under the circumstances of this case. Accordingly, Marc
Schimmel's motion to dismiss for lack of personal jurisdiction is denied.
As with Marc Schimmel, plaintiffs have made a sufficient prima
facie showing that Jacob Schimmel, UKI, and Ross acted as agents of
Tonex with respect to at least some of the
transactions at issue. Tonex was the eventual Schimmel-controlled
counterparty in the British Land Agreement (Ross Decl. ¶ 31, Ex. 13)
and Project Aston Martin (Ross Decl. ¶ 54-55, Exs. 39-40), and was a
direct beneficiary of Project Alliance (Ross Decl. ¶¶ 44-45, Exs. 11,
30-32). Further, plaintiffs have credibly alleged control over Tonex by
members of the Schimmel family including Marc and Jacob Schimmel (Ross
Decl. ¶¶ 27-28, Exs. 42-44), and UKI's role as Tonex's managing agent
with respect to the above-mentioned transactions (Ross Decl. ¶ 54,
Exs. 42-44). See A.I. Trade Fin., 989 F.2d at 79-80.
Accordingly, plaintiffs have sufficiently demonstrated that Tonex knew of
and consented to actions by Jacob Schimmel, UKI, and Ross in New York,
and that it exercised at least "some control" over those actions, and
thus personal jurisdiction under CPLR 302(a)(1) is appropriate. See
Grove Press, 649 F.2d at 122.
In addition, this Court finds that, like Marc Schimmel, Tonex had
sufficient minimum contacts with New York, and that the exercise of
personal jurisdiction over Tonex comports with the "traditional notions
of fair play and substantial justice" embodied in the due process clause
of the Fourteenth Amendment. Int'l Shoe, 326 U.S. at 316.
Therefore, Tonex's motion to dismiss based on lack of personal
jurisdiction is denied.
For the foregoing reasons: (1) defendant Harry C. Schimmel's
Rule 12(b)(2) motion to dismiss based on lack of personal jurisdiction is
granted, and plaintiffs' claims against him are dismissed; (2) defendant
Abraham Moses ("Marc") Schimmel's Rule 12(b)(2) motion is denied; and
(3) defendant Tonex Holdings Ltd.'s Rule 12(b)(2) motion is denied.