This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 180 

Rasheed Al Rushaid, et al.,

 Appellants,

 v.

Pictet & Cie, et al.,

 Respondents.

Gary P. Naftalis, for appellants.

Maeve L. O'Connor, for respondents.

RIVERA, J.:

Plaintiffs challenge the dismissal of their claims for

lack of personal jurisdiction, alleging defendants' business

activities bring them within the reach of New York's long-arm

statute. We conclude that defendants' intentional and repeated

use of New York correspondent bank accounts to launder their

customers' illegally obtained funds constitutes purposeful

transaction of business substantially related to plaintiffs'

claims, thus conferring personal jurisdiction within the meaning

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of CPLR 302(a)(1). Accordingly, the Appellate Division order

should be reversed and the matter remitted to Supreme Court for

consideration of defendants' alternative grounds for dismissal of

the amended complaint.

I. Background

Plaintiff Rasheed Al Rushaid is a Saudi resident and

co-owner of plaintiff Al Rushaid Petroleum Investment Corporation

(ARPIC), a company organized under the laws of Saudi Arabia and

the owner of another Saudi company, plaintiff Al Rushaid Parker

Drilling, Ltd. (ARPD). Defendants are Pictet & Cie (Pictet), a

private bank with its principal place of business in Geneva,

Switzerland, Vice President and Client Relationship Manager

Pierre-Alain Chambaz and Pictet's eight general partners.1

Plaintiffs sued defendants in New York state court for concealing

ill-gotten money from a scheme orchestrated by three of

plaintiffs' employees.

As alleged in the first amended complaint, ARPD

contracted to build six oil rigs for Saudi Arabia's national oil

company. Unbeknownst to the plaintiffs, three ARPD employees

responsible for procuring services and vendors for the project

breached their fiduciary responsibilities by accepting bribes and

1The general partner defendants are Philippe Bertherat, Remy

Antoine Best, Renaud Fernand de Planta, Jacques Joseph de

Saussure, Bertrand Francois Lambert Demole, Jean-Francois Demole,

Marc Philippe Pictet, and Nicolas Lucien Pictet.

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kickbacks from certain vendors, in exchange for purchasing

products at inflated prices and ignoring deficiencies in the

vendors' services.2

Defendants played a central role in the employees'

scheme by knowingly laundering and concealing the bribes and

kickbacks for approximately four years. According to the amended

complaint, "the corrupted employees needed the help of a willing

banker, a role fulfilled by defendants Pictet and Chambaz." 

Specifically, Chambaz set up an offshore "bogus" company to

receive the bribes -- TSJ Engineering Consulting Co., Ltd. (TSJ)

in the British Virgin Islands. He opened and actively managed

Geneva-based Pictet bank accounts for TSJ and the individual

employees. The bank orchestrated the laundering of funds from

the vendors who wired bribes in favor of "Pictet and Co. Bankers

Geneva" to Pictet's New York correspondent bank account.3 From

2Plaintiffs alleged that once they discovered the bribes

they commenced an action in Switzerland, through which they

successfully froze TSJ's and the employees' Pictet accounts.

Also, the employees were indicted in Switzerland for money

laundering.

3The complaint alleges that Chambaz and Pictet knew the

money was "the result of some breach of the corrupted employees'

duties," "provide[d] substantial help," "hid" millions of dollars

in kickbacks, set up "a 'bogus' company to receive the bribes,"

"also set up and managed Pictet bank accounts that were used by

the corrupted employees to launder and conceal the bribe money,"

knew that TSJ would be used to launder money, and "helped the

corrupted employees open bank accounts" that would be used to

receive the laundered money, all in violation of their own

fiduciary duties. Thus, contrary to the dissent's assertion

(dissenting op at 6), the plaintiffs allege that Pictet and

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there, the funds were credited by Pictet to TSJ's Geneva-based

account, and the money was later divided up and transferred to

the employees' individual accounts.

Plaintiffs alleged that "Pictet and Chambaz valued

their cozy business relationship with the corrupted employees

more than they valued proper banking procedures or ensuring that

it complied with its own financial responsibilities." As

described in the amended complaint, Chambaz was no innocent

banker. He was friends with the employees, and one of them -- a

friend for over 30 years -- emailed Chambaz about TSJ's name and

requested that Chambaz "add the co. to make it appear to be

okay." Chambaz also knew the employees' annual income and that

they worked full time as officers or directors for ARPD. Thus,

he had information that the money being deposited vastly exceeded

the employees' pay and was the result of some breach of their

duties, but he continued to help the employees conceal the

scheme. 

Plaintiffs asserted that defendants aided and abetted

the employees' breach of their fiduciary duty and were part of a

civil conspiracy with the employees. Plaintiffs sought over $350

million in damages for harm incurred as a result of the bribery

and kickback scheme and the consequent financial devastation of

their business. 

 Defendants moved to dismiss the amended complaint under

Chambaz designed and orchestrated the scheme. 

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CPLR 3211 (a) for lack of personal jurisdiction and failure to

state a claim, and pursuant to CPLR 327 on the basis of forum non

conveniens. Defendants also moved to dismiss as against Al

Rushaid and ARPIC for lack of standing under CPLR 3211 (a)(2). 

In opposition to the motion, plaintiffs submitted

copies of TSJ's Articles of Incorporation and other corporate

documents listing the employees as owners and sole shareholders,

and applications for TSJ's and the employees' Pictet bank

accounts. Plaintiffs also submitted copies of documents tracing

wire transfers from the vendors to Pictet's five New York

correspondent accounts, which the complaint alleged were credited

to TSJ's and the employees' Pictet Geneva accounts. The

documents provide a record of invoices directing payment to

Pictet's Citibank account in New York, "credit advice" documents

reflecting payment to that same account, and routing documents

tracing transfers again through that same New York account. 

Plaintiffs also submitted similar documents evidencing receipts

from and transfers to various other Pictet accounts in New York

including HSBC Bank USA, N.A., Deutsche Bank Trust Company,

America, and JPMorgan Chase Bank N.A. In sum, the documents

represented numerous transfers, 15 of which were to/from

Citibank, New York and totaled over $4 million.

Supreme Court granted defendants' motion to dismiss for

lack of personal jurisdiction, concluding that defendants' use of

the correspondent accounts was passive not purposeful (2014 WL

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4226466 [Sup Ct, NY County 2014]). The court also denied

jurisdictional discovery based on a statement by plaintiffs'

counsel at oral argument that the request was their fallback

argument. In light of its decision, the court did not address

defendants' alternative grounds for dismissal.

Plaintiffs appealed, arguing that personal jurisdiction

existed under the reasoning of Licci v Lebanese Can. Bank, SAL

(20 NY3d 327 [2012]). The Appellate Division affirmed, and

distinguished Licci as requiring deliberate acts which were

absent in plaintiffs' case because the defendants merely carried

out their clients' instructions and did not "purposefully avail[]

[themselves] of the privilege of conducting activities in New

York" (127 AD3d 610, 611 [1st Dept 2015]). We granted leave to

appeal (26 NY3d 909).

II. New York's Long-Arm Statute CPLR 302 (a)(1)

Plaintiffs allege that Pictet's repeated use of New

York correspondent accounts to receive and transfer millions of

dollars in illicit funds was central to the kickback and bribery

scheme, and constitutes the transaction of business substantially

related to their claims against defendants sufficient to confer

personal jurisdiction under CPLR 302 (a)(1). Defendants respond

that personal jurisdiction cannot depend on third party conduct,

and requires a type of purposeful availment by defendants that is

lacking here. Defendants also counter that the bank deposits are

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incidental to the claimed wrongdoing because the basis for the

lawsuit is defendants' role in conspiring and aiding and abetting

the concealment of the bribes, not the manner in which the funds

were allegedly concealed.

We conclude that defendants' use of the correspondent

bank accounts was purposeful and that plaintiffs' aiding and

abetting and conspiracy claims arise from these transactions. 

Our decision is in accord with the analysis in Licci, that the

requirements of CPLR 302 (a)(1) are satisfied where the quantity

and quality of contacts establish a "course of dealing" with New

York, and the transaction and claim are not "merely coincidental"

(see Licci, 20 NY3d at 340).

A. Transacting Business in New York Through a Correspondent

Account

CPLR 302 (a)(1) of New York's long arm statute

provides, 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

agent . . . transacts any business within the

state or contracts anywhere to supply goods

or services in the state.

The CPLR 302 (a)(1) jurisdictional inquiry is twofold: under the

first prong the defendant must have conducted sufficient

activities to have transacted business in state, and under the

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second prong, the claims must arise from the transactions.4

Thus, "jurisdiction is proper even though the defendant never

enters New York, so long as the defendant's activities here were

purposeful and there is a substantial relationship between the

transaction and the claim asserted" (Fischbarg v Doucet, 9 NY3D

375, 380 [2007]). 

The Court has explained that "[p]urposeful activities

are those with which a defendant through volitional acts, avails

itself of the privilege of conducting activities within the forum

State, thus invoking the benefits and protections of its laws"

(id. [internal citations omitted]). Determining "'purposeful

availment' is an objective inquiry, [which] always requires a

court to closely examine the defendant's contacts for their

quality" (Licci, 20 NY3d at 338, citing Fischbarg, 9 NY3d at

380). 

In Amigo Foods Corp. v Marine Midland Bank-NY (39 NY2d

391 [1976]), the Court considered whether a non-domiciliary's use

of a New York-based correspondent bank provides a jurisdictional

basis under CPLR 302 (a)(1). In that case, plaintiff Amigo Foods

4Notably, "[t]he transacting-business requirement of N.Y.

C.P.L.R. 302 requires far fewer contacts with New York than does

the doing-business requirement of N.Y. C.P.L.R. 301. Indeed,

proof of one transaction in New York is sufficient to invoke

jurisdiction. This easing of requirements is offset by the

corresponding requirement that the cause of action arise from the

very transaction or transactions which are relied upon to provide

the contact with the forum" (15 NY Jur. 2d Business Relationships

§ 1159).

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Corporation, a New York wholesaler, contracted to buy potatoes

from a Maine potato grower. Payment was to be made by letter of

credit at or through defendant Aroostook Trust Company, a bank

located in Maine. Amigo Foods obtained the letter of credit from

New York-based Marine Midland Bank, which delivered the letter to

Aroostook's New York correspondent bank, Irving Trust Company. 

The parties disputed the nature of the relationship between

Aroostook and Irving Trust, and relied on competing legal

theories as to whether Irving Trust was an agent or an

independent contractor of Aroostook. On appeal from dismissal of

the complaint for lack of jurisdiction, this Court reversed and

remanded for jurisdictional discovery, concluding that 

Aroostook's involvement needed to be clarified because, "standing

by itself, a correspondent bank relationship, without any other

indicia or evidence to explain its essence, may not form the

basis for long-arm jurisdiction under CPLR 302 (subd. (a), par.

1)" (39 NY2d at 396).

On remand, discovery revealed that Amigo Foods directed

Marine Midland Bank to wire funds to the wholesaler's account

with Aroostook. Marine Midland unilaterally chose to wire

payment through the "relatively small checking account" defendant

maintained at Irving Trust. When Aroostook informed the Maine

potato grower of this transaction, the potato grower instructed

Aroostook to reject the funds, which it did. The Appellate

Division dismissed for lack of jurisdiction because Aroostook,

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through its New York correspondent account, had "passively and

unilaterally been made the recipient of funds" (61 AD2d 896 [1st

Dept 1978]). We affirmed for the reasons stated (46 NY2d 855

[1979]). 

Years later the Court revisited the issue of 

correspondent accounts as a basis for personal jurisdiction in

Licci. In that case the Second Circuit certified two questions

regarding the application of CPLR 302 (a)(1) to a foreign bank

charged with violations of the Anti-Terrorism Act, Alien Tort

Statute, and Israeli tort law. In Licci, several dozen United

States, Canadian, and Israeli citizens were injured by terrorist

attacks in Israel launched by Hizballah. The plaintiffs sued

Lebanese Canadian Bank (LCB) for facilitating terrorist acts by

providing banking services to Hizballah. Personal jurisdiction

in New York was alleged based on LCB's use of a New York

correspondent bank account to effectuate the wire transfers that

provided the funds to Hizballah's "financial arm," the Shahid

Foundation, necessary to the commission of the illegal attacks.

In addressing the certified questions, our Court stated

that "in the banking context, the requisite inquiry under CPLR

302 (a)(1)'s first prong [the transacting business requirement]

may be complicated by the nature of inter-bank activity,

especially given the widespread use of correspondent accounts

nominally in New York to facilitate the flow of money worldwide,

often for transactions that otherwise have no other connection to

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New York, or indeed the United States" (20 NY3d at 338). To

clarify, the Court relied on Amigo Foods as an example of

activity that cannot serve as a basis for personal jurisdiction

because Aroostook's use of the correspondent account "was

essentially adventitious -- i.e., it was not even Aroostook's

doing" (Licci, 20 NY3d at 338). This Court did not reason,

contrary to the dissent's suggestion (dissenting op at 3), that

personal jurisdiction arising from the use of a correspondent

bank account in New York must also be accompanied by additional

activities in the state. Instead, Licci held that "complaints

alleging a foreign bank's repeated use of a correspondent account

in New York on behalf of a client -- in effect, a 'course of

dealing'[] -- show purposeful availment of New York's dependable

and transparent banking system, the dollar as a stable and

fungible currency, and the predictable jurisdictional and

commercial law of New York and the United States" (Licci, 20 NY3d

at 339, citing Indosuez Intl. Fin. v National Reserve, 98 NY2d

238, 247 [2002]). 

The case cited by the Court in support of this "course

of dealing" formulation, Indosuez Intl. Fin. v National Reserve

Bank (98 NY2d 238 [2002]), involved 14 currency exchange

transactions between a Netherlands corporation and a Russian

bank, six of which were made by the plaintiff to a New York bank

and ten of which had New York choice of law provisions. Personal

jurisdiction existed because the parties had established payment

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in five prior similar transactions through a New York bank, by

which "a course of dealing ha[d] been established" (98 NY2d at

247; citing Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65

[1984] [finding sufficient contacts to maintain jurisdiction

where defendant maintained a correspondent bank account in New

York, the account was "the very account through which" the

transaction at issue was effectuated, and the defendant

"regularly" used the account to "accomplish its international

banking business"];5 and Parex Bank v Russian Sav. Bank, 116 F

Supp 2d 415 [SDNY 2000][finding a Russian company "does business"

in New York where it "routinely" conducted exchange deals and

agreed to accept payment and a security deposit using New York

banks and banking institutions]).

Given this understanding of the first prong of CPLR 302

5The dissent's apparent concern over our reference to these

cases is misplaced. The Court in Licci cites both Indosuez

(Licci, 20 NY3d at 339) and Banco Ambrosiano (id. at 335) to

support its analysis of when the use of a correspondent account

rises to the level of a "course of dealing." Further, the

dissent incorrectly insists that Indosuez is inapplicable because

jurisdiction hinged on the New York forum selection clauses and

the fact that the bank was itself a party to the contract. The

forum selection clauses were only an alternative ground for

jurisdiction, not a necessary component of it (Indosuez, 98 NY2d

at 247). Additionally, it is true that the bank was a party to

the contracts at issue, but nowhere does the Court rely on this

fact in its personal jurisdiction analysis. The dissent's

attempt to distinguish Banco Ambrosiano is similarly

unpersuasive. Not only did Indosuez cite Banco Ambrosiano in the

context of defining a course of dealing, but Licci also cited

Banco Ambrosiano as an example of this Court's consideration of

when a party may be subject to jurisdiction based on the use of a

correspondent bank account, albeit in a different context.

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(a)(1), the Court in Licci concluded that the repeated use by LCB

of the correspondent account showed a transaction of business

where LCB "deliberately used a New York account again and again"

and "presumably" LCB used this New York account because it was

"cheaper and easier for LCB than other options." Thus, even

though "LCB could have routed the dollar transactions on behalf

of Shahid elsewhere, the fact that LCB used a New York account

'dozens' of times indicates desirability and a lack of

coincidence" (20 NY3d at 340). 

As these cases establish, unintended and unapproved use

of a correspondent bank account, where the non-domiciliary bank

is a passive and unilateral recipient of funds later rejected --

as in Amigo Foods -- does not constitute purposeful availment for

personal jurisdiction under CPLR 302 (a)(1). Repeated,

deliberate use that is approved by the foreign bank on behalf and

for the benefit of a customer -- as in Licci -- demonstrates

volitional activity constituting transaction of business. In

other words, the quantity and quality of a foreign bank's

contacts with the correspondent bank must demonstrate more than

banking by happenstance.

Turning to plaintiffs' appeal, we first assume as true

the facts alleged in the amended complaint because, "[o]n a

motion to dismiss pursuant to CPLR 3211, the pleading is to be

afforded a liberal construction. We accept the facts as alleged

in the complaint as true, accord plaintiffs the benefit of every

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possible favorable inference, and determine only whether the

facts as alleged fit within any cognizable legal theory" (Leon v

Martinez, 84 NY2d 83, 87–88 [1994]). The Court may "consider

affidavits submitted by plaintiffs to remedy any defects in the

complaint, because the question is whether plaintiffs have a

cause of action, not whether they have properly labeled or

artfully stated one" (Chanko v American Broad. Co. Inc., 27 NY3d

46, 52 [2016]). 

The amended complaint asserts that Pictet maintained a

relationship with New York banks and marketed "business relations

in New York" on its website. Specifically, the Citibank, New

York account was used to wire the bribes to a Pictet account in

Geneva, after which point, the money was divided up and

distributed amongst the "corrupted employees" by deposit to their

individual Pictet accounts. Chambaz knew the large sums of money

being wired were proceeds of an illegal scheme but never

questioned them, and continued to aid and abet the fraud. In

opposition to the motion to dismiss, plaintiffs submitted copies

documenting 15 wire transfers to Citibank in favor of TSJ, from

2006-2008, which reveal the movement of millions of dollars from

the vendors to the employees. Similar transactions were

documented from several other of Pictet's New York correspondent

accounts. 

After the vendors sent the money to Citibank, Pictet

did not ignore or reject the funds, as the defendant did in Amigo

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Foods (39 NY2d 391). Rather, Pictet credited the funds in that

correspondent bank account to TSJ, an essential step in the

money-laundering scheme. Citibank and the other banks held funds

for Pictet, then Pictet credited them to the TSJ account, and

next distributed the funds to the employee accounts. It is of no

moment that the employees "directed the vendors" to deposit the

money in the New York accounts because what matters is

defendants' banking activity with the correspondent accounts,

here, that the money deposited in New York was credited to the

Pictet accounts in accordance with Pictet's money-laundering. As

described in the complaint, the employees accessed the funds in

those accounts after Pictet credited the transfer from its New 

York correspondent account.

The Appellate Division erroneously concluded that

plaintiffs failed to establish purposeful availment because

defendants "merely carried out their clients' instructions." Our

cases do not require that the foreign bank itself direct the

deposits, only that the bank affirmatively act on them. Contrary

to the dissent's assertion (dissenting op at 4), in Licci, it was

Hizbollah that directed the wire transfers through LCB's

correspondent bank and not defendant, LCB. A foreign bank with a

correspondent account, therefore, that repeatedly approves

deposits and the movement of funds through that account for the

benefit of its customer is no less "transacting business in New

York" because the customer, or a third party at the customer's

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direction, actually deposits or transfers the funds to New York.

Moreover, the jurisdictional inquiry at the first prong

requires a close examination of defendant's contacts (Licci, 20

NY3d at 338). If those contacts are enough, the fact that others

may also have contact with the correspondent bank is not

dispositive. The facts here illustrate the point because the

complaint alleges that defendants orchestrated the money

laundering and that the New York account was integral to the

scheme. It is precisely the fact that defendants chose New York,

when other jurisdictions were available, that makes the New York

connection "volitional" and not "coincidental." The focus of the

jurisdictional analysis is the foreign bank's conduct vis-a-vis

the correspondent bank, meaning how it uses the correspondent

accounts -- not whether some other bank could have been used

instead.

Defendants' use of the correspondent accounts is far

from the "unilateral" payment in Amigo Foods where plaintiffs

chose to deposit money in New York at their own discretion

because here the vendors' choice to deposit money in New York was

precisely part of defendants' design, and not a "unilateral"

decision at all. Pictet was therefore actively engaged in a

cycle of banking transactions wherein money went from the vendors

to New York to Geneva, and then from Geneva to the employees. 

The use of the account was not "adventitious" because the account

was used routinely to hold deposits which Pictet then credited to

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TSJ's account in Geneva. Thus, the correspondent account was

crucial to a course of repeated banking activity.

Defendants' conduct is like that found sufficient in

Licci, where the defendants actively used a correspondent bank to

further a scheme that caused harm. As in Licci, the defendants'

use of the New York account to transfer money provided the

employees with the "laundered" profits from the bribery and

kickback scheme. Also, just as in Licci, defendants used the

correspondent account in New York "to move the necessary" money

(Licci, 20 NY3d at 340).

Defendants' correspondent banking activity is

sufficient to establish a purposeful course of dealing,

constituting the transaction of business in New York under CPLR

302 (a)(1).

B. Cause of Action Arising from the Contacts with New York

To satisfy the second prong of CPLR 302 (a)(1) that the

cause of action arise from the contacts with New York, there must

be an "'articulable nexus' [] or 'substantial relationship' []

between the business transaction and the claim asserted" (Licci,

20 NY3d at 339). This inquiry is "relatively permissive" (id. at

339, citing McGowan v Smith, 52 NY2d 268 [1981] and Kreutter v

McFadden Oil Corp., 71 NY2d 460 [1988]), and does not require

causation, but merely "a relatedness between the transaction and

the legal claim such that the latter is not completely unmoored

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from the former, regardless of the ultimate merits of the claim"

(Licci, 20 NY3d at 339). The claim need only be "in some way

arguably connected to the transaction" (id. at 340). 

The allegations in the complaint easily satisfy this

nexus requirement. Plaintiffs allege that defendants aided and

abetted in the employees' breach of their fiduciary duty to the

plaintiffs, and defendants further conspired with each other and

the employees by acting in concert to breach fiduciary duties,

defraud plaintiffs, and convert plaintiffs' property. These

claims depend on the assertions that defendants established the

banking structure in New York and Geneva through which they

orchestrated the money laundering part of the bribery/kickback

scheme. Defendants served as the employees' bankers, without

whom the employees could not launder and conceal millions in

kickbacks and bribes. In Licci, the Court found the requisite

nexus where the bank effected wire transfers which financed

terrorist activities. Similarly, the complaint alleges that

Pictet and defendants effected the transfers of money to the New

York correspondent bank as part of the money-laundering scheme

that put the bribes/kickbacks in the hands of the employees. 

Those allegations are enough to show the minimum level of

relatedness to the Citibank transactions.

Defendants argue that the use of the New York

correspondent bank is not substantially related to the

allegations because the transfers occurred months after TSJ and

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the individual Pictet bank accounts were created, and therefore

the transfers were incidental to the scheme that injured the

plaintiffs, since the injury would exist had payment been made by

means other than wire transfers. Defendants mistakenly rely on

Johnson v Ward (4 NY3d 516 [2005]) in support of their argument

that the New York connection was "merely coincidental." In

Johnson, a non-resident driver, with a New York state license and

registration, got into a car accident from which a tort claim

arose. The accident occurred in New Jersey and all the parties

were New Jersey residents. The Court reasoned that the

possession of a New York license and registration at the time of

the accident was "merely coincidental" because the claim arose

out of the allegedly negligent driving, not the issuance of a New

York license and registration. The defendant driver could have

had a license from elsewhere or no license at all.

Here, the money laundering could not proceed without

the use of the correspondent bank account, and, as plaintiffs

argue, their claims require proof that the bribes and kickbacks

were in fact paid. The money laundering scheme Chambaz designed

relied precisely on the existence of bank accounts in different

jurisdictions, through which the money would pass. In Johnson,

the claim of negligence was wholly separate from defendant's

possession of a New York state license and registration. In

contrast, plaintiffs' claims of aiding and abetting breaches of

fiduciary duties and conspiracy turn entirely on the money

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laundering Pictet and Chambaz allegedly set up and maintained,

necessarily including the use of a New York bank account.

III. Federal Constitutional Due Process

Exercise of personal jurisdiction under the long-arm

statute must comport with federal constitutional due process

requirements (LaMarca V Pak-Mor Mfg. Co., 95 NY2d 210, 216

[2000]). It is well established that a nondomiciliary must have

"certain minimum contacts with [the forum] such that the

maintenance of the suit does not offend traditional notions of

fair play and substantial justice" (International Shoe Co. v

State of Wash., Office of Unemployment Comp. & Placement, 326 US

310, 316 [1945] [internal quotation marks and citations

omitted]). As the Second Circuit has aptly noted, "despite the

fact that section 302 (a)(1) . . . and constitutional due process

are not coextensive, and that personal jurisdiction permitted

under the long-arm statute may theoretically be prohibited under

due process analysis, we would expect such cases to be rare"

(Licci ex rel. Licci v Lebanese Can. Bank, SAL, 732 F3d 161, 170

[2d Cir 2013]). This is not such a case, and defendants'

arguments to the contrary are meritless.

The "minimum contacts" test "has come to rest on

whether a defendant's conduct and connection with the forum State

are such that it should reasonably anticipate being haled into

court there" (LaMarca, 95 NY2d at 216 [citations omitted]). Such

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minimum contacts exist where a defendant "purposefully avails

itself of the privilege of conducting activities within the forum

State" (id.). Here, defendants' maintenance and repeated use of

a New York correspondent bank account "to achieve the wrong

complained of in this suit satisfies the minimum contacts

component of the due process inquiry" (Licci ex rel. Licci, 732

F3d at 173).

Whether personal jurisdiction offends "notions of fair

play and substantial justice" depends on a consideration of "the

burden on the defendant, the forum State's interest in

adjudicating the dispute, the plaintiff's interest in obtaining

convenient and effective relief, the interstate judicial system's

interest in obtaining the most efficient resolution of

controversies, and the shared interest of the several States in

furthering fundamental substantive social policies" (Burger King

Corp. v Rudzewicz, 471 US 462, 477 [1985]). Here, while the

parties are foreign nationals, the burden of litigation in New

York is reduced by "modern communication and transportation"

(Licci ex rel. Licci, 732 F3d at 174 [citations omitted]). 

Furthermore, the complaint implicates the fraudulent use of New

York's banking system, an issue of great importance to the State,

and New York courts provide the plaintiffs a greater possibility

of relief. On balance, and considering all the remaining

factors, the maintenance of suit here does not "offend

traditional notions of fair play and substantial justice." 

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IV. Forum Non Conveniens

Defendants advance another alternative argument, that

we should dismiss the complaint on forum non conveniens grounds

as a matter of law. We find no support for this position. "In

general, a decision to grant or deny a motion to dismiss []on

forum non conveniens grounds is addressed to a court's

discretion, and we will review it only to decide whether

discretion has been abused" (Mashreqbank PSC v Ahmed Hamad Al

Gosaibi & Bros. Co., 23 NY3d 129, 137-38 [2014]). Such cases,

where forum non conveniens grounds is required as a matter of

law, are "relatively uncommon" (id.). "The doctrine is flexible,

requiring the balancing of many factors in light of the facts and

circumstances of the particular case" (National Bank & Trust Co.

of N. Am. v Banco De Vizcaya, S.A., 72 NY2d 1005, 1007 [1988]). 

The instant appeal is a poor candidate for forum non conveniens

disposition in this Court because there has been no discovery and

plaintiffs allege the existence of additional contacts that may

affect the balance of factors in favor of maintaining

jurisdiction over the case. Instead, Supreme Court should

address the matter in the first instance.

V.

Accordingly, the order of the Appellate Division should

be reversed, with costs, and the case remitted to Supreme Court

for further proceedings in accordance with this opinion.

- 22 -
Rasheed al Rushaid, et al. v Pictet & Cie, et al.

No. 180 

GARCIA, J. (concurring):

This case calls upon us to again examine when the use

of a New York correspondent bank account by a foreign bank is

sufficient to confer personal jurisdiction over that foreign bank

under this State's long-arm statute. 

- 1 -
- 2 - No. 180 

The majority and dissent disagree on whether the

conduct of defendant here, a Swiss bank, was sufficient to

satisfy the first prong of our long-arm test -- the transaction

of business within the State. I agree with the majority that

defendant's conduct was sufficient to confer personal

jurisdiction. However, given the dissent's dire warning that we

"risk[] upending forty years of precedent" (dissenting op at 1),

I write separately simply to make clear we do no such thing. 

I. 

The substance of plaintiff's allegations are not in

dispute. Nor is the rule requiring us to accept those

allegations as true in deciding the issue of personal

jurisdiction (see Licci v Lebanese Canadian Bank, 20 NY3d 327,

340 [2012]). 

Plaintiff Rasheed Al Rushaid is a Saudi resident and

co-owner of plaintiff Al Rushaid Petroleum Investment

Corporation, a Saudi company that in turn owns plaintiff Al

Rushaid Parker Drilling, Ltd. (ARPD). Defendants are Pictet &

Cie (Pictet), a private bank with its principal place of business

in Geneva, Switzerland, Vice President and Client Relationship

Manager Pierre-Alain Chambaz and Pictet's eight general partners. 

Plaintiffs commenced this action in New York state

court asserting that defendants were active participants in a

kickback and money-laundering scheme orchestrated by three of

ARPD's employees.

- 2 -
- 3 - No. 180 

ARPD contracted to build six oil rigs for Saudi

Arabia's national oil company. Three ARPD employees responsible

for procuring services and vendors for the project allegedly

breached their fiduciary responsibilities by accepting bribes and

kickbacks from certain vendors, in exchange for purchasing

products at inflated prices and ignoring deficiencies in the

vendors' performance. Those vendors were located around the

globe, in, among other countries, China, Norway, the United Arab

Emirates and the United States.

According to the complaint, Pictet was not a passive

banking establishment providing commercial services to the ARPD

employees. Rather the bank, through its executive Chambaz, knew

of, and affirmatively assisted in, the kickback arrangement

between the ARPD employees and the vendors. Chambaz knew the

corrupt ARPD employees personally -- one for more than thirty

years -- and knew they were accepting bribes in the course of

their employment. He assisted each with setting up a personal

account with Pictet in Switzerland and he helped them to create a

front company in the British Virgin Islands, TSJ Engineering

Consulting Co., Ltd. [TSJ], to receive the bribes from those

vendors.1 Chambaz "actually knew that substantial sums, well in

1 As evidence of Chambaz's knowledge of the scheme,

plaintiff's introduced an email from one of the ARPD employees to

Chambaz discussing the name of TSJ, in which the employee

requested that Chambaz "add the co. [to the account name] to make

it appear to be okay." The name itself, "TSJ," stands for the

first letter of the first names of the three corrupt employees:

- 3 -
- 4 - No. 180 

excess [of any ARPD salary], were going into, and out of, the TSJ

account were not earned by the corrupted employees in the course

of their employment with ARPD, or through any legitimate business

venture." 

Two causes of action are pleaded as a result: aiding

and abetting the employees' breach of fiduciary duties owed to

plaintiffs' and civil conspiracy for defendants' role in

establishing TSJ and the corresponding bank accounts that enabled

the employees to "launder the funds that flowed from the bribes."

II.

New York's long-arm statute provides:

(a) Acts which are the basis of jurisdiction.

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

agent:

(1) transacts any business within the state

or contracts anywhere to supply goods or

services in the state.

(CPLR 302 [a][1]). 

The jurisdictional inquiry is twofold: under the first

prong, enumerated in subsection (a)(1), the defendant must have

conducted sufficient activities to have transacted business in

the state, and under the second prong, enumerated in subsection

(a), the claims must "arise from" those specific transactions. 

Thomas Caplis, Shekhar Shetty, and James Wright, whose names are

listed as shareholders on TSJ's Articles of Association.

- 4 -
- 5 - No. 180 

The crux of the disagreement is whether the use of the

correspondent account in New York by the Swiss bank was

purposeful. Understanding the commercial motivation behind

correspondent accounts and how they are used by foreign banks is

therefore relevant to resolving the issues presented. As one

federal court has articulated it:

Interbank accounts, also known as

correspondent accounts, are used by foreign

banks to offer services to their customers in

jurisdictions where the banks have no

physical presence, and otherwise to

facilitate transactions involving such

jurisdictions. Given the international

importance of U.S. currency and the U.S.

market, many foreign banks have such

interbank accounts in the United States.

There are banks that conduct virtually all

transactions external to the bank through

their U.S. interbank accounts. 

Because interbank accounts can be used to

complete transactions in the United States

without the need to directly establish an

account in the United States, they can be

vehicles for money laundering, with or

without the complicity of the foreign bank. 

(United States v. Union Bank for Savings & Investment (Jordan),

487 F3d 8, 15 [1st Cir 2007] [internal citations omitted]; see

generally Minority Staff of Senate Permanent Subcomm. on

Investigations, 107th Cong., Report on Correspondent Banking: A

Gateway to Money Laundering, 11-14, 30, 41-42 [Comm. Print

2001]). 

Here, the complaint alleges that Pictet was complicit

in laundering the proceeds of a kickback scheme through its New

York correspondent account. These facts fit comfortably within

- 5 -
- 6 - No. 180 

the guideposts established by our two cases on point: Licci (20

NY3d 327) and Amigo Foods Corp. v Marine Midland Bank-New York et

al. (39 NY2d 391 [1976]).

Amigo Foods is the leading case finding mere

coincidental use of a correspondent account. The facts in Amigo

Foods are recounted in the majority and in Licci (majority op at

8-9; Licci, 20 NY3d at 335-336). It is clear that, as the

dissent notes, the defendant bank in Amigo Foods, Aroostook, was

the "passive recipient of payment" on a letter of credit in favor

of its Maine client. However, the entity directing the payment

to Aroostook's correspondent account at a New York institution

was not that client, but a third-party: Marine Midland Bank-New

York, the buyer's bank. Aroostook's entire involvement in that

commercial transaction, as later developed through additional

discovery, was its receipt of the payment directed by Marine

Midland to Aroostook's New York correspondent account,

notification of its client in Maine, and rejection of the funds

per the client's instructions. Marine Midland -- the holder of

plaintiff's letter of credit -- was taking advantage, for its own

convenience, of a banking service provided by Aroostook to

deposit funds paid on that letter of credit (Amigo Foods Corp. v

Marine Midland Bank-New York et al., 61 AD2d 896 [1st Dept 1978]

affd 46 NY2d 855 [1979]; see Licci, 20 NY3d at 337). The

"depositor" was not defendant's client (see dissenting op at 3). 

Because the plaintiff failed to establish that Aroostook

- 6 -
- 7 - No. 180 

"purposefully availed itself of the privilege of conducting

activities in New York thereby invoking the benefits and

protections of its laws" (Licci, 20 NY3d at 337, quoting Amigo

Foods, 61 AD2d at 897), the analysis ended at prong one of the

long-arm test. 

In Licci, this Court found such "purposeful availment"

with respect to activity conducted through defendant's

correspondent account in New York. We held that "a foreign

bank's repeated use of a correspondent account in New York on

behalf of a client -- in effect, a 'course of dealing' -- shows

purposeful availment of New York's dependable and transparent

banking system, the dollar as a stable and fungible currency, and

the predictable jurisdictional and commercial law of New York and

the United States" (Licci, 20 NY3d at 339 [internal citation

omitted][emphasis supplied]). The fundamental misimpression

apparently left by Licci is that the defendant bank itself must

somehow direct the funds into the correspondent bank account (see

Rasheed Al Rushaid et al. v Pictet, 127 AD3d 610 [1st Dept

2015]["Thus, unlike (the defendant bank in Licci), defendants

merely carried out their clients' instructions"]). The dissent

takes a quote from a later Second Circuit opinion in Licci; the

"bank 'deliberately chose' to process the transfers through AmEx

in New York" (dissenting op at 7, quoting Licci ex rel. Licci et

al. v Lebanese Canadian Bank, SAL, 732 F3d 161, 171 [2nd Cir

2013]).

- 7 -
- 8 - No. 180 

Here, there can be no dispute that once the money was

in the correspondent account -- a time when only Pictet held

title to the funds -- the bank affirmatively and deliberately

transferred the money to Switzerland on behalf of the ARPD

employees (see Sigmoil Resources, N.V. v Pan Ocean Oil

Corp.(Nigeria) et al., 234 AD2d 103 [1st Dept 1996]). But the

dissent is apparently troubled by the absence of an affirmative

act by Pictet in directing the money into the New York

correspondent bank account.2

The first problem with this line of reasoning is that

nowhere in the record of Licci is there any indication that the

defendant, Lebanese Canadian Bank [LCB], itself played a role in

choosing to use the New York correspondent account. Rather, as

the majority points out, the only evidence in the record is that

2 If this is indeed the missing piece for the dissent, it

would seem remand for additional discovery would be in order to

determine what role if any Chambaz or others at Pictet played in

the routing of funds to New York. Certainly, given the

allegations concerning the establishment of the front company in

the British Virgin Islands, there is enough to warrant that step.

It is certainly as sufficient as the initial showing made by

plaintiff in our first Amigo Foods decision -- when we remitted

that case to the trial court for further discovery (39 NY2d at

396). While acknowledging that such a request had been made by

plaintiff pursuant to CPLR 3211(d), the lower court denied 

discovery because it mistakenly believed the argument abandoned,

not for any "failure" in the affidavits submitted (2014 WL

4226466; see dissenting op at n 2). Given that jurisdictional

issues in long-arm cases are likely to be complex, discovery is

"desirable, indeed may be essential, and should quite probably

lead to a more accurate judgment than one made solely on the

basis of inconclusive preliminary affidavits (Peterson v Spartan

Ind., 33 NY2d 463, 467 [1974]). 

- 8 -
- 9 - No. 180 

Hizballah directed the use of that account3 for deposit of funds

ultimately used to further the terrorist goals of that

organization. If such facts -- the specific nature of the

commercial transaction and the bank's unilateral choice of the

corresponding account venue to effect the transfer -- truly

formed the underpinning of our holding, it is odd to say the

least that they are not articulated in our decision. Rather, the

relevant allegations were that "LCB used this correspondent

account . . . to transfer several million dollars by means of

'dozens' of international wire transfers on behalf of Shahid;

that LCB knew that Hizballah was a terrorist organization and

that Shahid was part of its financial arm; that the wire

transfers 'caused, enabled and facilitated the terrorist rocket

attacks'. . .; and that LCB knew that Hizballah required wire

transfer services in order to . . . carry out such terrorist

attacks" (Licci, 20 NY3d at 332). 

Second, just as the Lebanese bank did in Licci, Pictet

provides a correspondent account in this State as a service to

its clients. The client here -- the same front company

established with the help of the bank -- used that service

approximately 15 times to transfer millions of dollars in U.S.

currency to Pictet accounts in Geneva. Funds arrived into the

3The complaint alleged that the Hizballah accounts were

maintained at "various LCB branches in Lebanon" and were "titled

to the Shahid (Martyrs) Foundation," (2009 WL 3639957 [SDNY,

amend. compl. 45-46]). 

- 9 -
- 10 - No. 180 

New York correspondent account, at the direction of the front

company that the bank helped establish, from those vendors in

China, U.A.E., Norway and the United States and were then wire

transferred to Pictet accounts in Switzerland in U.S. dollars. 

Pictet's actions in clearing these transactions through its New

York correspondent account for a client depositing millions

dollars into that Swiss bank was certainly "affirmative and

deliberate" and done for the bank's own commercial purposes. 

That purposeful activity stands in stark contrast to Aroostook's

passive receipt of a fund transfer from a third-party's bank

routed through New York for the sole convenience of that thirdparty (Amigo Foods, 61 AD2d at 897).4

Moreover, although much more critical to the analysis

of the second prong discussed briefly below, the allegations that

Pictet was a knowing participant -- as a coconspirator or aider

and abettor -- in the wrongdoing strongly supports a finding of

purposeful availment. Pictet, it is alleged, had a shared

purpose with the corrupt ARPD employees -- to further the

kickback scheme -- in the same manner the Lebanese bank in Licci

4If in Licci, LCB had helped Hizballah establish Shahid as a

front company, Shahid had then directed donors to deposit funds

in the LCB correspondent account in New York, that money was

wired from that LCB bank account to a Shahid account at LCB in

Lebanon, and it was then dispersed to individuals intending to

carry out terrorist attacks -- all with a collective purpose to

further the terrorist goals of Hizballah -- the dissent would

find no "purposeful availment" under prong one of our long-arm

test. 

- 10 -
- 11 - No. 180 

was alleged to have shared Hizballah's terrorist goals. Use of a

correspondent bank account in New York was a deliberate step by

clients in both cases to move funds central to these shared

goals. In neither case was the use of a New York correspondent

account merely "coincidental." 

Accordingly, the finding that the actions of Pictet

satisfy prong one of our test for long-arm jurisdiction is in

keeping with both Amigo Foods and Licci and is not in any way a

"retreat" from the principles articulated in those cases.5

III.

As the dissent finds that plaintiff has failed the

jurisdictional test on prong one, there is no discussion of the

application of the "arising from" prong. "[A]t minimum," all that

is required is "a relatedness" so that the legal claim is not

"completely unmoored" from the transactions (Licci, 20 NY3d at

339). As noted above, plaintiff alleges that Pictet aided and

abetted the ARPD employees breach of their fiduciary duties to

their employer and conspired with them to do the same. Pictet is

alleged to have used its New York correspondent account to

knowingly transfer the proceeds of the kickback scheme -- acting

this way to assist the ARPD employees in profiting from their

5As the majority notes, Supreme Court should still address

the forum non conveniens issue (majority op at 22). In that

context, our State's interest in the integrity of its banking

system may again be considered along with factors militating

against resort to a New York forum (see Mashreqbank PSC v Ahmed

Hamad Al Gosaibi & Bros. Co. et al., 23 NY3d 129, 137 [2014]).

- 11 -
- 12 - No. 180 

breach of fiduciary duty (see id. at 340). This is sufficient to

establish an articulable nexus between the use of the

correspondent account and the claims asserted (id. at 339).

IV.

"It should hardly be unforeseeable to a bank that

selects and makes use of a particular forum's banking system that

it might be subject to the burden of a lawsuit in that forum for

wrongs related to, and arising from, that use" (Licci, 732 F3d

at 171-172). The conclusion that personal jurisdiction attaches

in a case brought by victims of such wrongs may well chill

foreign banks from taking advantage of this State's banking

system to knowingly forward money for terrorist purposes, or to

knowingly launder the proceeds of illegal activity. So be it.

- 12 -
Rasheed al Rushaid, et al. v Pictet & Cie, et al.

No. 180 

PIGOTT, J.(dissenting):

CPLR 302(a)(1) does not confer personal jurisdiction

over a foreign bank when, as in this case, the bank's only

connection to New York is the maintenance of a New York

correspondent account and the passive receipt of payments into

that account, at the unilateral direction of third parties. The

majority's contrary conclusion is based on a misreading of Licci

v Lebanese Canadian Bank (20 NY3d 327 [2012]), in which we held

that a foreign bank was subject to personal jurisdiction because

it deliberately and repeatedly wired money through its New York

correspondent account into the hands of Hizballah, to effect

terrorist goals shared by the bank. In ignoring the significant

distinctions between Licci and this case, the majority risks

upending over forty years of precedent that holds the mere

maintenance of a New York correspondent account is insufficient

to assert personal jurisdiction over a foreign bank. 

Accordingly, I dissent.

- 1 -
- 2 - No. 180

New York's long-arm statute authorizes a court to

exercise personal jurisdiction over any non-domiciliary who

transacts business within the state, if the cause of action

arises from such acts (see CPLR 302[a][1]). "Although it is

impossible to precisely fix those acts that constitute a

transaction of business, our precedents establish that it is the

quality of the defendants' New York contacts that is the primary

consideration" (Fischbarg v Doucet, 9 NY3d 375, 380 [2007]). 

Specifically, we look for "[p]urposeful activities" in which a

party, "through volitional acts, avails itself of the privilege

of conducting activities within the forum State" (id. [internal

quotations omitted]). For example, in Fischbarg, we upheld the

exercise of personal jurisdiction over out-of-state defendants

who had retained an attorney in New York to represent them in a

foreign proceeding, because they "projected themselves into our

state's legal services market" and, "on their own volition,"

chose to utilize the plaintiff's services (id. at 382). 

So, too, in Licci, the foreign bank projected itself

into this State by affirmatively and deliberately transferring

money on behalf of a client, through its New York correspondent

account, to Hizballah (see 20 NY3d at 340). The evidence in

Licci established that the bank "could have . . . processed U.S.-

dollar-denominated wire transfers for the Shahid account through

correspondent accounts anywhere in the world," yet it

"deliberately chose to process the many Shahid wire transfers

- 2 -
- 3 - No. 180

through AmEx in New York" (Licci ex rel. Licci v Lebanese Can.

Bank, 732 F3d 161, 171 [2d Cir 2013] [emphasis added]). What is

more, the bank in Licci transferred the funds through its New

York account "to effect its [the bank's] . . . shared terrorist

goals" (Licci, 20 NY3d at 340 [emphasis added]). 

"Not all purposeful activity, however, constitutes a

transaction of business within the meaning of CPLR 302(a)(1)"

(Fischbarg, 9 NY3d at 380). In stark contrast to Licci, the

foreign bank in Amigo Foods Corp. v Marine Midland Bank-New York

was held not to have purposefully availed itself of the privilege

of conducting activities in New York where it maintained a New

York correspondent account and had "passively and unilaterally

been made the recipient of funds which, at its customers'

direction, it ha[d] declined" (61 AD2d 896, 897 [1st Dept 1978],

affd for reasons stated 46 NY2d 855 [1979]). A depositor's

"unilateral choice" to deposit money into the bank's account did

not suddenly transform a correspondent banking relationship into

the kind of volitional act that is required under the long-arm

statute (id.).

If there were any confusion as to the meaning of our

decision in Amigo Foods, we put it to rest in Licci. There, we

clarified that 

"Amigo Foods [i]s best read as standing for

the proposition that the first prong of the

long-arm jurisdiction test . . . may be

satisfied by the defendant's use of a

correspondent bank account in New York, even

if no other contacts between the defendant

- 3 -
- 4 - No. 180

and New York can be established, if the

defendant's use of that account was

purposeful" 

(Licci, 20 NY3d at 338, quoting Licci ex rel. Licci v Lebanese

Can. Bank, SAL, 673 F3d 50, 66 [2d Cir 2012] [emphasis in

original]). We described the bank's use of its correspondent

account in Amigo Foods as "essentially adventitious -- i.e., it

was not even [the bank]'s doing," whereas the bank's actions in

Licci -- knowingly and unlawfully transferring funds to Hizballah

on its client's behalf to accomplish the bank's terrorist goals 

-- demonstrated the kind of purposeful availment contemplated by

CPLR 302(a)(1) (id. at 338, 340 [emphasis added]). 

Our decision in Licci thus confirmed the rule, based in

prior case law, that something more than the mere receipt of

funds in a New York correspondent account is required in order to

assert personal jurisdiction over a foreign bank (see Faravelli v

Bankers Trust Co., 59 NY2d 615, 618 [1983], affg for reasons

stated 85 AD2d 335, 339 [1st Dept 1982] [foreign bank not subject

to personal jurisdiction under the long-arm statute where it

directed a New York bank to remit payment from a purchase

contract to the foreign bank's New York correspondent account];

Nemestky v Banque de Developpement de la Republica Du Niger, 48

NY2d 962, 964 [1979] [foreign bank's maintenance of a New York

correspondent account was insufficient to assert personal

jurisdiction, even if bank's guarantee of the trade acceptance

upon which plaintiff brought suit arose from the bank's

- 4 -
- 5 - No. 180

correspondent banking relationship]; cf. Banco Ambrosiano v Artoc

Bank & Trust, 62 NY2d 65, 70 [1984] [plaintiff conceded lack of

personal jurisdiction over foreign bank whose only contact with

New York was maintenance of a New York correspondent account into

which the funds that were the subject of the action were

deposited]).1 

Rather, a foreign entity must initiate purposeful

contact with New York, beyond the mere maintenance of a

correspondent account, in order for its relationship with a New

York bank to form the basis for the exercise of personal

jurisdiction (see 20 NY3d at 338-339; Ehrlich-Bober & Co. v Univ.

of Houston, 49 NY2d 574, 581-582 [1980] [public university in

Texas that maintained a correspondent account in New York subject

to personal jurisdiction because it had solicited the funds that

were the subject of the action and specifically directed that

they be placed in the account]). Accordingly, the foreign bank

in Indosuez International Finance B.V. v National Reserve Bank

(98 NY2d 238 [2002]) was subject to personal jurisdiction where

the bank itself entered into numerous contracts with the

plaintiff and specified that payments under those contracts were

1 The majority's reliance on Banco Ambrosiano is misplaced

(majority op at 12). Our decision in that case was limited to an

analysis of quasi in rem jurisdiction, as the plaintiff had

conceded that personal jurisdiction was lacking (62 NY2d at 69-

70). We cited Banco only once in Licci, as an example of a case

in which we "discussed similar or related issues" involving a

foreign bank's use of a correspondent account (20 NY3d at 335). 

- 5 -
- 6 - No. 180

to be made into the bank's New York account, for the benefit of

the bank. Unlike the foreign bank in Amigo Foods, whose only

contact with New York was the maintenance of a correspondent

account into which other parties unilaterally chose to deposit

funds, the foreign bank in Indosuez was itself a party to the

contract that had required payments to be made into its

correspondent account (id. at 246-247). The bank had also

expressly designated New York as the place of performance and

submitted to New York jurisdiction in six of its agreements

(id.). 

Here, defendants' sole connection to New York was the

maintenance of a correspondent account at Citibank, N.A., into

which third party vendors deposited funds that were alleged to be

the proceeds of bribes and kickbacks obtained by foreign "corrupt

employees" in connection with a Saudi Arabian construction

project. Although plaintiffs generally alleged that defendants

knew about the employees' unlawful activities overseas and helped

them to set up a company in the British Virgin Islands, with bank

accounts in Geneva, plaintiffs have not identified any volitional

act on the part of defendants that was directed at New York. 

Indeed, the only intentional conduct alleged in

the complaint that relates in any way to New York was carried out

by the foreign employees -- who directed the vendors to wire the

bribes and kickbacks to "Citibank[, N.A.], New York, in favour of

'Pictet and Co. Bankers Geneva,' for the credit of" the

- 6 -
- 7 - No. 180

employees' overseas account -- and the vendors, who followed that

direction. Nowhere is it alleged that defendants "orchestrated

the laundering of funds . . . to Pictet's New York correspondent

bank account" (majority op at 3), or that "the vendors' choice to

deposit money in New York was . . . part of defendant's design"

(majority op at 16), as it was in Licci (see Licci, 732 F3d at

171 [bank "deliberately chose" to process the transfers through

AmEx in New York]).2 

Like the foreign bank in Amigo Foods, Pictet has not

wired money through its New York correspondent account, nor has

it initiated any other contact with the forum state such as the

kind we found dispositive in Licci and Indosuez. Even accepting

as true all of the facts alleged in the amended complaint, Pictet

was nothing more than an "adventitious" recipient of money that

had been transferred into its account at the unilateral direction

of foreign nationals, which is insufficient under section

302(a)(1) to exercise personal jurisdiction over a foreign bank.

The majority's interpretation of Licci and,

consequently, its determination that Pictet's receipt of funds at

the direction of others constitutes the purposeful transaction of

business in New York, is a complete about-face from the rule that

2 Because the plaintiffs failed to submit affidavits in

opposition to the motion to dismiss that would suggest "facts

essential to justify opposition may exist but cannot then be

stated," they have not satisfied the procedural requirements of

CPLR 3211(d) that would entitle them to further jurisdictional

discovery. 

- 7 -
- 8 - No. 180

we established in Amigo Foods, and to which foreign banks have

fashioned their conduct for over four decades -- namely, that

maintenance of a New York correspondent account, standing alone,

will not subject them to jurisdiction in this state. The

majority's retreat from that principle eschews the clear and

predictable rules that are important in this area of the law, and

will have grave implications for correspondent banking

relationships, which "facilitate the flow of money worldwide,

often for transactions that otherwise have no other connection to

New York, or indeed the United States" (Licci, 20 NY3d at 338).3

* * * * * * * * * * * * * * * * *

Order reversed, with costs, and case remitted to Supreme Court,

New York County, for further proceedings in accordance with the

opinion herein. Opinion by Judge Rivera. Judges Abdus-Salaam,

Fahey and Garcia concur, Judge Garcia in a concurring opinion in

which Judge Abdus-Salaam concurs. Judge Pigott dissents and

votes to affirm in an opinion in which Chief Judge DiFiore and

Judge Stein concur.

Decided November 22, 2016

3 In light of my conclusion that defendants did not transact

business in this state, I have no need to consider the

sufficiency of plaintiffs' allegations with respect to the second

prong of the long-arm statute (see CPLR 302[a][1]) or whether the

exercise of personal jurisdiction in this case satisfies due

process (see Walden v Fiore, 134 S Ct 1115, 1121 [2014]).

- 8 -