Robert E. Wilson, III, Respondent,
Daniel Valente Dantas, et al. Appellants, et al., Defendants.
C. Korologos, for appellants.
Terrance Reed, for respondent.
order of the Appellate Division, insofar as appealed from,
should be affirmed, with costs, and the certified question
answered in the affirmative. Defendants have expressly
abandoned their personal jurisdiction claims in their appeal
to this Court. Their remaining claims, to the extent
reviewable on this appeal, are without merit (see
CPLR 3211 [a] ; Leon v Martinez, 84 N.Y.2d 83,
87-88 ; Islamic Republic of Iran v Pahlavi, 62
N.Y.2d 474, 478-479 , cert denied 469 U.S.
WILSON, J. (dissenting):
should dismiss this appeal for lack of appellate
jurisdiction; the two issues as to which plaintiff sought
leave to appeal have been rendered academic by
plaintiff's subsequent amendment of his complaint.
Defendants agree that those two issues are no longer present.
However, because the majority has concluded otherwise,
requiring us to reach the nonfinal arguments now raised by
defendants, I address those arguments in detail. I disagree
with the majority's conclusion as to the complaint's
sufficiency, and would remand the forum non
conveniens issue for redetermination.
rules require parties requesting leave to appeal to include
"[a] concise statement of the questions presented for
review and why the questions presented merit review by this
Court, such as that the issues are novel or of public
importance, present a conflict with prior decisions of this
Court, or involve a conflict among the departments of the
Appellate Division. Movant shall identify the particular
portions of the record where the questions sought to be
reviewed are raised and preserved" (22 NYCRR 500.22).
The First Department's rules similarly require that
"[t]he moving papers shall include a copy of the order
of this court from which leave to appeal is requested, and
shall set forth the questions of law to be reviewed by the
Court of Appeals" (NY Ct Rules § 600.14).
petitioned the First Department for leave to appeal to this
Court. They identified two legal questions, both concerning
the sufficiency of the original complaint in pleading
personal jurisdiction.  Within the thirty-four page
memorandum urging review by this Court, there is a single
boilerplate statement that "[d]efendants respectfully
request leave to bring all cognizable issues before the Court
of Appeals." Defendants did not mention the issues they
now press on appeal.
opposition, plaintiff argued that the Appellate Division can
grant leave from non-final orders generally only "where
the questions present important issues of substantial public
and pressing interest, " and that defendants "are
limited to the questions that they have raised in their
motion for leave to appeal." In reply, defendants
mentioned only the two issues relating to personal
jurisdiction, and did not dispute plaintiff's contention
that their appeal was limited to the two personal
the Appellate Division granted leave, plaintiff amended his
complaint to eliminate the claimed defects in the allegations
of personal jurisdiction. Defendants thereafter conceded the
mootness of the issues they pressed on us, and instead ask us
to review issues they have never claimed meet the standards
for review by this Court of nonfinal orders.
justify this switcheroo, defendants cite the Appellate
Division's certified question: "whether Supreme
Court's order as modified by the Appellate Division was
properly made." However, as we held in Quain,
"if a party in its application for leave to appeal
specifically limits the issues it seeks to have reviewed, it
is bound by such limitation and may not raise additional
issues on appeal" (Quain v Buzzetta Constr.
Corp., 69 N.Y.2d 376, 379 ). Although
Quain involved a motion for leave granted by this
Court and not the Appellate Division, the rule should be the
justification for binding a party to its express limitation
implicates questions of notice and fairness. "To permit
[the party to appeal other questions not raised] necessarily
disadvantages the opposing parties, who might have joined
issue or even cross-moved for leave to appeal as to
additional issues had adequate notice been given"
(id. at 380). Here, for example, plaintiff did not
cross-move or seek leave to appeal from the Appellate
Division's dismissal of his third, fifth and ninth causes
of action, presumably on the understanding - as plaintiff
asserted in his opposition to the leave to appeal - that the
leave request was limited to the two personal jurisdiction
questions presented by defendants as, in defendants'
words, "deserving consideration by the Court of
the United States Supreme Court, we lack (but should possess)
the ability to dismiss appeals based on an improvident grant
of leave to appeal. It is therefore particularly important
that we avoid cases where the issues specified by the
appellant as the basis for review have evaporated.
the Court's decision that we must decide the nonfinal
issues newly raised by defendants, I conclude that, as a
matter of law, only a portion of one cause of action in
plaintiff's complaint  should survive defendants'
alleged in the complaint, plaintiff Robert E. Wilson, III,
who was employed by Citibank in the 1990s, devised an
investment strategy related to Brazil, which he persuaded
Citibank to pursue. In 1997, Citibank, Mr. Wilson and Mr.
Dantas agreed to form a Cayman Islands entity, Opportunity
Equity Partners, Ltd. (OEP), to be managed by Mr. Dantas in
furtherance of that investment strategy. Citibank instructed
Mr. Wilson to move to Brazil to assist with management of the
investment fund; he was employed in Brazil by OEP, of which
he was also a 1% shareholder. Mr. Wilson alleges that Mr.
Dantas and two business enterprises formerly headed by Mr.
Dantas, OEP and Opportunity Invest II, Inc. (OI), wrongfully
injured him by promising and failing twice to pay him 5% of
the carried interest in the private equity funds run by OEP.
Wilson claims that before leaving Citibank to become a
principal and shareholder of OEP Ltd., he sent Mr. Dantas a
letter in July 1997 that specified the terms of Mr.
Wilson's forthcoming employment, including that he was to
receive 5% of the carried interest generated by the funds.
Mr. Wilson signed the letter; no one else did.
months later, in December of 1997, the seven shareholders of
OEP, including Mr. Wilson, entered into a Shareholders'
Agreement, to which OEP and OI were also parties. At the same
time, OEP, as General Partner, Citibank, N.A., as Initial
Limited Partner, and International Equity Investments, Inc.,
as Limited Partner, entered into the Amended and Restated
Limited Partnership Agreement (LP Agreement). Also at the
same time, OEP, OI, Citibank, N.A., Banco Opportunity S.A.,
CVC/Opportunity Equity Partners Administradora de Recursos,
Ltda., and the seven Principals of OEP, including Mr. Wilson,
entered into an Operating Agreement.
Shareholders' Agreement provided that, of OEP's 100
issued shares, OI would own 96 and Mr. Wilson and three other
individuals would each own one. The Shareholders'
Agreement specifically provided: "Nothing in this
Agreement shall constitute or be deemed to constitute a
partnership between any of the parties hereto." In 2005,
various Citibank entities sued OEP and Mr. Dantas, who filed
counterclaims. That litigation was resolved in 2008 through a
confidential settlement. Mr. Wilson was not a party to that
litigation. He claims that Mr. Dantas falsely promised him
that he would be paid his share ...