Safra v SNBNY Holdings Ltd. 2024 NY Slip Op 31061(U) March 28, 2024 Supreme Court, New York County Docket Number: Index No. 650710/2023 Judge: Margaret A. Chan Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.INDEX NO. 650710/2023 NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 03/28/2024

1 of 18 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 49M

ALBERTO JOSEPH SAFRA, Plaintiff,

-vSNBNY HOLDINGS LIMITED, CARLOS ALBERTO VIEIRA, CARLOS CESARBERTACOBOMFIM, SIMONI PASSOS MORA TO, VICKY SAFRA, JACOB JOSEPH SAFRA, and DAVID JOSEPH SAFRA
Defendants. 

### ---------------------------------------------------------------------------X

HON. MARGARET A. CHAN: INDEX NO. 650710/2023

MOTION DATE 06/26/2023

MOTION SEQ. NO. 005

DECISION+ ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 005) 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 99, 100, 101,104,105, 106, 107,108,109, llO, 111,112,113,114,122,123,124,125,126,127,128,129,130,131,132
were read on this motion to/for DISMISSAL PlaintiffAlberto Joseph Safra Wberto) brings this action against defendants SNBNYHoldings Limited (SNBNY), Carlos Alberto Viera (Viera), Carlos Cesar Bertaco Bomfim (Bomfim), Simoni Passos Morato (Morato, and together with Viera and Bomfim, the Director Defendants), Vicky Safra (Vicky), Jacob Joseph Safra (Jacob), and David Joseph Safra (David, and together with Vicky and Jacob, the Family Defendants) (collectively, defendants), asserting claims for breach of SNBNY's Articles ofAssociation (the Articles), tortious interference with contractual rights, undue influence, unfairprejudice under Gibraltar law, breach of fiduciary duties, and rescission ofcertain transactions decreasingAlberto's holdings in SNBNY (NYSCEF # 2- compl or the complaint). Presentlybefore the court is defendants' motion to dismiss the complaint pursuant to CPLR 32ll(a)(I), (a)(7), and (a)(S), CPLR 327(a), CPLR 1001, and/or CPLR 3016(b) (NYSCEF # 65). Forthe following reasons, defendants' motion to dismiss is granted. 

### Background.1
This action involves a thorny inter-family dispute concerning the ownership and governance ofSNBNY, a holding company that owns Safra National Bank of New York (SNB), a nationally charted United Statesbank headquartered in New

1 The following facts, which are accepted as true solely for purpose ofthis motion, are drawn from the complaint, as well as the affirmations and exhibits submittedin connection with the motion.

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2 of 18 York (compl 

## ,r,r 1·7, 18, 38, 49). Both SNBNY and SNB are part ofa global portfolio offinance, real estate, and agricultural assets heldby the Safra Group, an entity formerly headed and controlledby the late JosephYacoub Safra (Joseph) 

### (id. 

## ,r,r 48· 50).2 Alberto, David, Jacob, and Esther Safra Dayan (Esther) are Joseph's children. The four children, together Joseph's widow, Vicky, are the heirs to the Safra Group's assets 

### (see id 

## ,r,r 19, 48).
Given the extent and prominence oftheir internationalinterests, the Safra family prepared a comprehensive plan for Joseph's estate (compl 

## ,r 51). As part of that estate plan, 28% ofequity interests in Class B shares ofSNBNYwere to be distributed to each ofAlberto, David, andJacob, while 16% ofequity interests were to be distributed to Esther 

### (id 

## ,r,r 19, 52, 71). Joseph in turn relied onthese proportions in December 2018 when he donated 100,000,000 Class B shares to his children 

### (id 

## ,r 53). Following this distribution, Joseph owned 613 Class A shares of SNBNY; Alberto, David, and Jacob each owned 28,000,000 Class B shares; and Esther owned 16,000,000 Class B shares 

### (id 

## ,r,r 11, 53, 71). 

### Defendants'Dilution of Alberto'sSharesin theBafra Group'sAssets
In 2006, Albertojoined the executive management ofBanco Safra S.A. (Banco Safra), a Brazilian commercialbank, eventually becoming a member ofBanco Safra's Board ofDirectors in 2010 (compl 

## ,r,r 20, 62). But when Davidjoinedthe Banco Safra's management in 2008, issues betweenAlberto and his family began to emerge 

### (see id). Specifically, David embarked on a campaign to gainpower at Banco Safra, which, in turn, undermined the bank's working environment, increased its costs, and depreciated its synergies, coordination, and administrative efficiencies 

### (see id). David's actions resulted in substantial professional and personal disagreements with Alberto due to diverging views onthe bank's business, management, and strategy (id). This resulted inAlberto eventually leaving his position at Banco Safra and founding an asset management firm, ASA Investments 

### (id 

## ,r,r 21, 62). Normally, Joseph would have been called upon to resolve this type of business disagreement amongst siblings (seecompl

## ,r 62). Butbeginningin the latter halfof2019, Joseph's health significantly deteriorated 

### (id 

## ,r,r 15, 21, 54·57, 61). Taking advantage ofthis situation, David enlisted Jacob's assistance, and, with Vicky's apparent knowledge, the two engaged a concerted effort to influence Joseph to reduce Alberto's share ofthe Safra family assets to their direct benefit 

### (see id 

## ,r,r 21·22, 62-64).
The first part ofthe Family Defendants' scheme involved obscuring the extent ofJoseph's health decline (compl 

## ,r 23). For example, on November 18, 2019, without informingAlberto, the Family Defendants hired Professor Robert Howard,

2 Safra Group assets include SNBNY, Banco Safra S.A., JS International Holding Limited, and Andromeda Global Strategy Fund Limited (compl 

### ,r 49).

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3 of 18 a Professor ofOldAge Psychiatry at University College London, to examine Joseph in Geneva, Switzerland (id 

## ,r,r 58, 60). Alberto alleges that the Family Defendants secretly hand·picked Professor Howard to issue a report claiming thatJoseph had sufficient mental capacity in aid oftheir efforts to make significant alterations to his estate planning (id). At the same time, the Family Defendants attemptedto restrictAlberto from visiting his father and removed him from family communications in which Joseph's health and mental capacity were discussed (see id 

## ,r,r 24, 57, 61, 63, 89). By obfuscatingJoseph's situation, the Family Defendants
were able to then influence Joseph withoutAlberto's knowledge (see id 

## ,r,r 23, 26· 27, 63·65, 87).
The second part ofthe FamilyDefendants' campaign involved havingJoseph carry out a series oftransactions that resulted in the dilution ofAlberto's shareholder interests in SNBNY (the Dilution Events) (compl 

## ,r,r 23, 66·73). The foundation ofthe Dilution Events began inthe fourth quarter of2019 (see id

## ,r,r 14· 15, 66). Under Gibraltar law, SNBNYwas required to have sufficient profits to support a capitalization event and the issuance ofnew shares to Joseph (id 

## ,r 76). Accordingly, in November 2019, SNBNY allegedly switched, without explanation, from the US GAAP accounting standardto the International Financial Reporting Standards when preparingits financial statements, and this change became retroactively effective as ofJanuary 1, 2019 (id 

## ,r 67). This change allowed SNBNY to report a jump in income in 2019 of$872,116,000, which, in turn, increased SNBNY's total equity to $1,674,571,000 (see id

## ,r,r 14, 67·68, 72, 78). Alberto alleges, upon information andbelief, that these "write ups" were ultimately taken to artificially create profits andjustify capitalizing new shares (id 

## ,r 69). 3 Relying on SNBNY's updated 2019 financial statements, the Family Defendants then influenced Joseph and the Director Defendants to pass a series of resolutions that increased David and Jacob's shares in SNBNYwhile decreasing Alberto's shares (see compl. 

## ,r,r 9, 12, 69, 72, 78·80). Specifically, on December 4, 2019, Joseph, who was in New York for medical treatment, approved (by special resolution) new Articles authorizing SNBNYto increase its share capital (see id 

## ,r 72 [ii]). That same day, Joseph allegedly passed a special resolution bywhich SNBNY's share capital increased from $100,000,613 (based on 613 ClassA shares and 100,000,000 Class B shares) to $300,002,000 (based on 2000 Class A shares and 300,000,000 Class B shares) through the creation of 1,387 new Class A shares and 200,000,000 new Class B shares (id 

## ,r 72 [iii]). Also on that same day, by a written resolution that was proposed and recommended by the Director Defendants, $868,212,382.01 ofSNBNY's reserves andprofits were capitalized (id 

## ,r,r 9, 12, 69, 72 [iv]). This resulted in the issuance of660 new ClassA shares and 107,665,100 new Class B shares to Joseph (id 

## ,r 72 [ivD. Finally, Joseph transferred his

3 Alberto corroborates his beliefby pointing to the fact that, in 2020, following the DilutionEvents, SNBNY wrote down SNB's book value, leading to a negative income of $325,247,893 (compl 

### ,r 79). As explained, this "write down" occurred even though SNB had increased its income over 2019 (id.).

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4 of 18 107,665,100 newly issued Class B shares solely to Jacob and David in equal shares for no apparent consideration (id 

### 1 72 [v]). Upon completion ofthe Dilution Events, Alberto's Class B Share holdings were reduced from 28% to 13.47%, while David andJacob's holdingsboth increased 

### (see id 

### 1113, 73). 4 According to Alberto, Joseph lacked the capacityto understand, plan, or carry out the sophisticated corporate transactions involved in the Dilution Events (compl 

### 11 5, 12, 15, 70). In support, Alberto identifies certain irregularities in these special resolutions (id 

### 11 3, 77, 80). Despite these irregularities, Alberto avers, each of these resolutions were recommended bythe Director Defendants (id 

### 1 70). 

### Alberto'sDiscovervof theDilution EventsandJoseph'sPassing
On January 13, 2020, Alberto texted his mother to ask whether something hadbeen done regarding his interest in the Safra family businesses (compl 

### 1 90). The next day, Alberto received a letter, back·datedJanuary 6, 2020, which was allegedly written and signedby Joseph (id). The letter expressed that Joseph was hurtby Alberto's decision to leave Banco Safra's management, but it made no mention ofany dilution ofAlberto's interest (id). Alberto responded to the letterby indicating his desire to speak with Joseph to resolve any issues between the two (id 

## 1 91). Despite protests from the Family Defendants, Alberto visited Joseph in Geneva in early 2020 (id). Alberto alleges that Joseph seemed unaware ofthe Dilution Events and did not display any ofthe sentiments raised inthe January 6, 2020, letter (id). Joseph passed away on December 10, 2020 (compl 

## ,r,r 25, 92). Six months later, in June 2021, Alberto learned that his shares had been diluted and the extent ofthe dilution (id 

## 1 88). Alberto had not previously received notice ofany ofthe Dilution Events, or even confirmation ofany changes to his Class B share holdings (id 

## ,r 85). Nor has he received any purported approvals by the Director Defendants thatwere required to carry out the Dilution Events (id). 

### ThePresentLawsuitandDefendants,Challenge to PersonalJurisdiction
Alberto commenced this action on February 6, 2023. This lawsuits represents just one ofseveral proceedings across the globe challengingJoseph's estate administration and Alberto's dilution ofinterests in the Safra family businesses (compl 

## ,r,r 7, 28; 

### seealso NYSCEF # 79

## ,r,r 6·18). Inthis action, Alberto seeks to set aside, cancel, or rescind the transactions impacting his interest in SNBNYbased on Joseph's alleged lack ofmental capacity and incompetence, and he also asserts

4 After the initial transfer in 2019, David and Jacob's SNBNY share holdings were each 39.4%. Then,
on May 5, 2020, David and Jacob each transferred 8,613,208 oftheir Class B shares to Esther, which returned her to her prior level ofClass B share holdings (compl 141! 75, 86). Thisresulted in each of David and Jacob's Class B share holdings dropping to 35.26% (id).

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5 of 18 claims for breach ofthe Articles, undue influence, unfairprejudice under Gibraltar law, and breach offiduciary duties (seecompl

## ,r,r 127·182). 5
Alberto broadly contends that this action concern "business interests located in New York, conduct in New York, and harm in New York" (compl 

## ,r 8). Alberto first focuses on SNBNY, alleging that the court has generaljurisdiction over the companybecause, although incorporated in Gibraltar, its principal place ofbusiness is in New York (id 

### ,r 38). Alberto further avers that SNBNYhas extensive contacts with New York and limited contacts with Gibraltar, citingthe fact that (1) SNBNYs principalpurpose as a holding company is to invest in common stock ofSNB, (2) SNBNYis subjectto regulation bythe Federal Reserve in New York, (3) all three ofSNBNYs directors have business offices located in SNB's headquarters, and (4) SNBNY is essentially managed and operated in New York (id 

## ,r 39). In any event, Alberto also avers, this court has personaljurisdiction over SNBNYbecause, among other things, (i) SNBNYconducts nearly all its business through SNB and (ii) alterations to SNBNYs capital structure were initiated through shareholder resolutions executed in New York under the alleged influence and/or approval ofthe Family Defendants and the Director Defendants (id 

## ,r 40).
Alberto next turns to the court's allegedjurisdiction over the Director Defendants, contendingthat all three work in New York and two ofthe three maintain residences in New York (compl 

## ,r 41). In so alleging, Alberto relies onthe fact that the Director Defendants maintain offices, and engage inbusiness, in New Yorkby virtue oftheir positions within SNB (id). Alberto further states that the court independently hasjurisdiction over the Director Defendants because his claims arise out oftheir transactions in New York (id 

## ir 42). Specifically, he avers, Director Defendants were likely in New York when they purportedly approved Joseph's resolutions diluting Alberto's SNBNYinterests (id). 6
Alberto's final set ofjurisdictional allegations relate to the Family Defendants. Alberto alleges that the courthas personaljurisdiction over Jacob and Vicky because Jacob maintains a residence in New York and serves as the chair of SNB, while Vicky maintains a residence in New York where she regularly spends time (compl 

## ,r 43). Alberto further alleges that the court hasjurisdiction over all the

5 Alberto also brings causes ofactions based on defendants' alleged failure to recognize Alberto's nomination to SNBNY's board ofdirectors (compl. 

### ,r,r 104·126). As alleged, onJune 7, 2021, June 25, 2021, and March 2022, Alberto sentletters to SNBNY and the Family Defendants to exercise his right to appoint a director pursuant to Article 61(a) ofthe Articles (id 

### ,r,r 93·94). The Family Defendants, however, purportedly directed SNBNY not to recognize Alberto's director appointee, and onJuly 2, 2021, SNBNY sent a letter refusing to recognize Alberto's appointment until approved by the FederalReserve (id 

### ,r 95). Now, in connection with their motion, defendants represent that, in the months since this action was commenced, Alberto's nomination has been appointed with immediate effect (see NYSCEF# 130

### ,r 6; NYSCEF# 131). Based on defendants' account, these claims in the complaint appear to be moot. 6 Alberto also alleges that the denial ofhis board appointmentwas takenby, or done with the knowledge of, the Director Defendants when they were likely in New York (compl 

### ,r 42).

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6 of 18 Family Defendants because they took advantage ofJoseph's physical and mental state while he was in New York, explaining that Vicky was withJoseph at the time and David and Jacob were "both aware ofhis medical condition" and were present in New York with Joseph at certainpoints in December 2019 (id 

## ,r 44). Alberto alternatively contends that, because SNBNY's principal place ofbusiness is alleged to be in New York, personaljurisdiction exists ove1· the Family Defendants because his injuries occurred in New York (id 

## ,r 45). Defendants, in response, contestpersonaljurisdiction over SNBNY, the Family Defendants, and defendants Vieira and Bomfim (together, the Non-Resident Directors) (NYSCEF

### # 89

- MOL at 8·31; NYSCEF

### # 126

- Reply at 15·24). As to SNBNY, defendants offer the affirmation ofLiam Roche, the director ofSNBNY's company secretary, Line Secretaries Limited (NYSCEF # 72

- Roche aff

## ,r,r 5·6). Roche contends that SNBNYhas its principal place ofbusiness in Gibraltar, not New York, and he offers severalfact to support his position (see 

### id. 

## ,r,r 4·10). For instance, based on an inspection SNBNY's statutory and minute books maintained in Gibraltar, Roche affirms that SNBNY's sole business is managing the shares it holds, and it employs Gibraltar-based professionalfirms to provide auditing and legal services and representation in corporate matters (id 

## ,r,r 5, 7·8). Roche further explains that SNBNY does not generallyhold in·personboard meetings; rather, meetings are held telephonically and decisions validly made by written resolution signed in whatever place SNBNY's directors are located at the time (id ~j 10). Roche then affirms, more generally, that SNBNY's corporate policies implicatingthe allotment and issuance ofshares in SNBNY, as well as the rights and restrictions attaching to such shares, are drafted and recorded in Gibraltar (id 

## ,r 9). In support, Roche notes that he signed and submitted a "Return ofShares Transfer" in Gibraltar to register Joseph's transfer with the Registrar ofCompanies in Gibraltar (see id

## ,r 16; NYSCEF # 78).
To further challenge personaljurisdiction over SNBNY, defendants also offer the affirmation ofBomfim who reiterates that SNBNYis a Gibraltar holding company for its primary asset, Safra New York Corporation (SNYC) (NYSCEF # 81

- Bomfim aff

## ,r 5). Bomfim goes on to explain that SNBNYhas no office in New York and has no employees in New York (id 

## ,r,r 11·12). He also reiterates that SNBNY's directors' meetings are held telephonically and any resultingboard resolutions are generally drafted in Gibraltar (see id

## ,r,r 14·15).
Defendants next turn to the court's allegedjurisdiction over the NonResident Directors, offering the affirmations ofBomfim andVieira to support their position. Vieira affirms that he is a citizen ofBrazil and maintains his primary business address in Sao Paulo, Brazil at Banco Safra (NYSCEF # 82

- Vieira aff 

## ,r,r 5·6, 8). Although he acknowledges owning an apartment in New York, he represents that he only used this apartment for 116 days in 2019 and generally uses it less than 90 days per year (id 

## ,r 7). Vieira further affirms that, other than his duties as a director ofSNB and other Safra Group·affiliated entities, he does not

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7 of 18 conduct any business activities in New York (id 

## ,r 9). Vieira goes on to explain that whenJoseph signed the December 4, 2019, shareholder resolutions, and when Vieira signed the December 11, 2019, board resolution approvingthe capitalization ofSNBNY and the issuance ofnew Class A and Class B shares, he was in Brazil (id 

## ,r,r 11·12). Vieira, however, acknowledges that he was in New York when he signed the December 19, 2019, board resolution transferringJosephs Class B shares to David and Jacob (id 

## ,r 13).
For his part, Bomfim explains that he is a citizen ofthe United States and Brazil and is a resident ofNew Jersey (Bomfim aff

## ,r 8). Bomfim indicates that he owns an apartment in New York City that he rents to a tenant, and he also owns an apartment in Buffalo, New York, that he rents to his son (id 

## ,r 9). Bomfim acknowledges that he has an office in SNB in New York, but that, other than his duties as an officer ofSNB and a director ofsome other Safra Group-affiliated entities, he does not conduct any business activities in New York (id 

## ,r,r 6, 10). And regardingthe Dilution Events alleged in the complaint, Bomfim affirms that he was not present when Joseph signed the shareholder resolutions on December 4, 2019, but he was in New York when he signed the December 11 and December 19, 2019, board resolutions (id 

## ,r,r 16·18). Finally, defendants target Alberto'sjurisdictional allegations concerning the Family Defendants by submitting affirmations from each ofVicky, David, and Jacob, who all affirm that they are citizens ofBrazil, Greece, and Spain, and not the United States (NYSCEF # 83 David aff

## ,r 3; NYSCEF # 85

- Jacob aff

## ,r 3; NYSCEF # 87 Vicky aff

## ,r 3). David maintains his primary residence in Sao Paulo, Brazil; Jacob maintains his primary residence in Switzerland; and Vicky maintains her primary residence in Switzerland (David aff

## ,r 4; Jacob aff

## ,r 4; Vicky aff

## ,r 4). David occasionally visits but does not maintain a residence in New York; Jacob
owns residentialproperty in New York but only spends, at most, 20 days at that property during a typical year; and Vicky rents an apartment in New York but only spends, at most, 30 days peryear in that apartment (see David aff

## ,r 4; Jacob aff

## ,r 4; Vicky aff

## ,r 4). Addressing the relevant events inAlberto's complaint, David affirms that he was New York to visit his father onDecember 8, 2019, and he left on December 11, 2019 (David aff

## ,r 5). Jacob, in turn, affirms that he was in New York
on December 5, 2019, and he left New York on December 14, 2019 (Jacob aff

## ,r 5). Finally, Vicky states that she spent more time than usual in New York in 2019 due to Joseph's health issues, and that she was in New York with Joseph for medical reasons from December 2, 2019, to January 16, 2020 (Vicky aff

## ,r 5). Legal

### Standard
CPLR 32ll(a)(8) provides that a party may move to dismiss one or more causes ofaction on the ground that the court lackspersonaljurisdiction over defendants (CPLR 3211 [a][8]). On such a motion, the court is required to accept as true allegations set forth in the complaint and accord plaintiffthe benefit ofevery

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8 of 18 possible favorable inference 

### (see Leon vMartinez, 84 NY2d 83, 87·88 (1994]; 

### Lawati vMontagueMorgan SladeLtd, 102AD3d 427, 428 [1st Dept 2013]; 

### Whitcraft v Runyon, 123 AD3d 811, 812 [2d Dept 2014]). Plaintiffnevertheless bears the "burden ofpresenting sufficient evidence, through affidavits and relevant documents, to demonstratejurisdiction" 

### (Coast to CoastEnergy, Inc. v Gasarch, 149 AD3d 485, 486 [1st Dept. 2017]). Although a plaintiffneed not conclusively establish that there ispersonaljurisdictionin defending against a motion to dismiss, he or she must make at least a "sufficient start" in demonstrating its existence 

### (see James v i'FlexInc., 185 AD3d 22, 29·30 [1st Dept 2020] [explaining that plaintiff"need only make a 'sufficient start' in demonstrating, prima facie, the existence ofpersonaljurisdiction"]). Conclusory assertions ofjurisdiction will not suffice 

### (see Gasarch, 149 AD3d at 487 [rejecting "vague, conclusory and unsubstantiated" allegations offered to support long armjurisdiction]; 

### Cotia (USA) Ltd vLynn Steel Corp., 134AD3d 483, 484 [1st Dept 2015] ["Plaintiffhas offered nothingbut conclusory assertions to support long·armjurisdiction under CPLR 302(a)(l)"]). 

### Discussion
Defendants primarily move to dismiss the complaint on the grounds that, except as to defendant Morato (who resides in New York), the court lacks a basis to exercise either general or specific personaljurisdiction (MOL at 8·31; Reply at 15· 24). Defendants first argue that the court lacks general or specificjurisdiction over SNBNYbecause it is a holding companyincorporated in Gibraltar with its principal place ofbusiness in Gibraltar, and none ofAlberto's claims arise out ofany transaction or activities conducted by it in New York 

### (seeMOL at 10·17; Reply at 15·19). Regarding the Family Defendants, defendants contend, the complaint fails to plead either general or specificjurisdictionbecause none ofthem maintain their primaryresidences in New York, none ofthem have had "extensive contacts" with the state, and none ofthem engaged in wrongful conduct within the state or caused injury withinthe state (MOL at 17·26; Reply at 20·24). As for the Non-Resident Directors, defendants aver that the court lacks either general or specificjurisdiction because neither ofthem are domiciled in New York or engaged in extensive business activities in the state, and none ofAlberto's claims arise out ofany ofthe directors' transactions ofbusiness in New York (MOL at 26·28; Reply at 19·20).7
Alberto counters that he has made a prima facie showing ofpersonal jurisdiction over all defendants (NYSCEF # 114- Opp at 22·30). Alberto first contends that he has sufficiently demonstrated that the court can exercise both general and specificjurisdiction over SNBNYbased on his allegations that its principalplace ofbusiness is in New York and that the relevant transactions at

7 Defendants also move to dismiss on the grounds offorum non conveniensand failure to state a claim (see MOL at 31·50). Because Alberto has failed to establishpersonaljurisdiction over SNBNY, the Family Defendants, and the Non-Resident Directors, the court does notreach these alternative bases for dismissal.

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9 of 18 issue in the complaint tookplace in New York (id at 22·27). He further contends that he has sufficiently established that the court may exercise specificjurisdiction over both the Family Defendants and the Non-Resident Directors (id at 27·30). As to the Family Defendants, Alberto avers that the court may exercisejurisdiction because they were in New York whenJoseph and SNBNYcarried out the Dilution Events, and they otherwise caused Alberto injury in New York (idat 27·28). And as to the Non-Resident Directors, Alberto argues that his claims arise out oftheir transaction ofbusiness in New York (id at 29·30).
The court addresses the parties' contentions below. 

### I. Defendants' Motion to 

### Dismissfor 

### Lack ofPersonalJurisdiction

A. General Jurisdiction under CPLR 301 Although he alleges in the complaint that the court has generaljurisdiction
over all defendants 

### (see compl -,i 41), Alberto's generaljurisdiction arguments in his opposition focus solely on SNBNY 

### (see Opp at 22·30). Alberto contends that the court may exercise generaljurisdiction over SNBNYon the grounds that its decisions are made in New York and thus its principalplace ofbusiness is here (id at 22). Specifically, Alberto argues, SNBNY's decisions originate in New York, not Gibraltar, because its three directors exercise control over SNBNYfrom SNB in Manhattan, and hence, SNBNY's decisions are made in New York (id. at 22·24).
For a court to exercise generaljurisdictionover a defendant, a defendant must generally eitherbe domiciled or have its principalplace ofbusiness in New York 

### (Bracco v E. MetalRecycling Term. LLC, 211 AD3d 628,628 [1st Dept 2022]). To establish that a company's principalplace ofbusiness is in New York, plaintiff must demonstrate that a company's "nerve center" is in New York 

### (seeRobins v Procure Treatment Ctrs., Inc., 179 AD3d 412, 414 [1st Dept 2020]). A company's "nerve center" is the place where "the majority ofits executive and administrative functions are performed" 

### (Hertz Corp. vFriend, 559 US 77, 82 [2010]). There are also "exceptional case[s]" where a court may exercise generaljurisdiction over a foreign company because its "ties to New York are so continuous and systematic as to render it essentially 'at home' in New York" 

### (KPPIICCTLLCvDouglasDev. Corp., 222 AD3d 408, 408 [1st Dept 2023]; 

### seealsoDaimlerAGv Bauman, 571 US 117, 139 [2014]). Here, to establish generaljurisdiction over SNBNY, Alberto alleges that SNBNY's principal place ofbusiness is in New York (compl 

## 1 38). But defendants'
sworn submissions establish that, in addition to beingincorporated in Gibraltar, SNBNY's principalplace ofbusiness is also in Gibraltar. As an initial matter, as affirmed by both Roche and Bomfim, SNBNYis merely a holdingcompany whose only asset, SNYC, is also a holding company with interests in four other assets (including SNB) 

### (see Roche aff

## 1 4; Bomfim aff

## 11 4·5). And as a holding company,

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10 of 18 SNBNY's only business activityis managing the shares it holds, withits administrative and corporate affairs being handled and maintained in Gibraltar 

### (see Roche aff

## 1 4·9, 16; 

### seealsoNYSCEF # 78). Gibraltar also happens to be the place in which SNBNY's written shareholder andboard resolutions are drafted and prepared, and, as relevant here, where changes to the corporate register are recorded and pertinent documents filed 

### (see Roche aff,i,i 9, 16; Bomfim aff

## 11 13· 15; 

### seealsoNYSCEF # 7 4 at 4; NYSCEF # 78) By contrast, SNBNYhas no office or employees in New York, and it does not conduct any in·person meetings in New York (Roche ,i 10; Bomfim 

## aff1il 11·12, 14; Vieira affi-1111·12). Viewing these facts together, the record supports a conclusion that, although SNBNY's operations in Gibraltar may not necessarilybe substantial in scope, it is Gibraltar, not New York, where the majority ofSNBNY's executive and administrative functions are performed and where its corporate policies originate 

### (see Utopia Studios, Ltd v Earth Tech, Inc., 607 F Supp2d 443, 445-446 [ED NY 2009] [explainingthat, for purposes ofestablishing a company's principalplace ofbusiness "the salient question [is] where the company's policies originate"]). 8
To avoid this conclusion, Alberto largely relies on SNB's operations in New York to imputejurisdiction over SNBNY 

### (seecompl 

### i-11 38-39). Such reliance is misplaced. It is true that in certain limited circumstances, CPLR 301jurisdiction maybe establishedbythe acts ofrelated entities to the named defendant 

### (see Delagi v VolkswagenwerkAGofWolfsburg, Germany, 29 NY2d 426,432 [1972])). But the mere existence ofa parent-subsidiary relationship, alone, does not confer jurisdiction over a company 

### (see FIMBank

### P.L. C. 

### v Woori Fin. Holdings Co. Ltd., 104AD3d 602, 602-603 [1st Dept 2013] [rejecting that defendant was subject to personaljurisdictionbased on ownership ofsubsidiary]; 

### Porter vLSBIndus., Inc., 192 Ad2d 205, 213 [4th Dept 1993] [explaining that "[a] finding ofagency for jurisdictionalpurposes will notbe inferredfrom the mere existence ofa parent· subsidiary relationship"]; 

### seealso CortlandtSt. Recovery Corp. vBonderman, 73 Misc3d 1217[A], at *7 [Sup Ct, NY County, 2021], 

### modon othergrounds, 215 AD3d 446 [1st Dept 2023] ["the presence ofa local corporation does not createjurisdiction over a related, but independently managed, foreign corporation"]). Rather, the parent's "control over the subsidiary's activities

... must be so complete that the subsidiary is, in fact, merely a department ofthe parent" 

### (Delagi, 29 NY2d at 432; 

### accordBlount vBovisLendLeaseLMB, Inc., 49 AD3d 293, 294 [1st Dept 2008]). To determine ifa subsidiary is a "mere department" ofits parent, courts consider the following factors: (1) "common ownership"; (2) "financial dependency ofthe subsidiary on the parent"; (3) the "degree to which the parent corporation interferes in the selection and assignment ofthe subsidiary's executive personnel and fails to

8 That SNBNYmay be regulated by the Federal Reserve by virtue ofits interests in SNB does not alter this determination (c£ Okoroafor vEmiratesAirlines, 195 AD3d 540, 541 [1st Dept 2021] ~"r~gi~tr~tio~ to do business in New York does not constitute consent to submitto general Jur1sd1ct1on m New York for causes ofaction that are unrelated to its affiliation with New York"); Advance1!ealtyAssocs. v Krupp, 636 FSupp 316, 317·318 [SD NY 1986] [registration ofseveral partnerships as broker dealers in New York did not confer generaljurisdiction over those entities]).

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11 of 18 observe corporate formalities"; and (4) "the degree ofcontrol over the marketing and operational policies ofthe subsidiary exercised by the parent" ( 

### VolkswagenwerkAG. vBeechAircraft Corp., 751 F2d 117, 120·122 [2d Cir 1984]; 

### accordFIALeveraged FundLtdv Grant Thornton LLP, 150 AD3d 492,493 [1st Dept 2017] [relying on the four factor test set out by the Second Circuit in 

### BeechAircraftl).
The crux ofAlberto's position is that SNBNY is "at home" in New York because, as he alleges, (1) SNBNYis a holding company whose principal purpose is to invest, through its subsidiary SNYC, in SNB's common stock, and (2) all three of SNBNY's directors maintain offices in New York at SNB's headquarters and therefore must have made decisions about SNBNYin New York (seecompl 

## ,r 39; Opp at 22·24). But even accepting these allegations as true, the complaint does not sufficiently allege that SNB is a "mere department" ofSNBNY. For instance, beyond identifying common ownership and some financial ties, the complaint does not suggest that SNBNYexerts control over SNB's activities and operations orthat these entities have failed to observe corporate formalities. Rather, it is evident that SNBNY, indirectly through SNYC, operates as "nothing more than an investment mechanism," while SNB "conduct[s] business not as [SNBNY's] agent0 but as its**investment □"**  

### (see Gurvey v Cowan, Liebowitz

### &Latman, PC, 2009 WL 691056, at *4 [SD NY, Mar. 17, 2009, No. 

### 06 Civ. 1202]; 

### Gallelli v Crown Imports, LLC, 701 F Supp 2d 263, 273·274 [ED NY 2010] ["Since the subsidiaries carry out their own businesses, and not the investment business of [parent], the subsidiaries cannot be deemed the agents of [parent]"]; 

### seealsoFIA LeveragedFund, 150 AD3d at 493 [observing that "since [parent] is a holding company, it is financially dependent on its subsidiaries" rather than vice versa]).
In sum, Alberto has failed to establish or make a sufficient start demonstrating that the court may exercise generaljurisdiction over SNBNY. The court next turns to Alberto's specificjurisdiction arguments. 9
B. Specific Jurisdiction Under CPLR 302
New York's long arm·statute, CPLR 302, provides for three separate bases that a court may exercise specificjurisdiction over a non-domiciliary (CPLR 302 [aD. Preliminarily, under CPLR 302(a)(l), a court may exercisejurisdiction over a non· domiciliary who "transacts any business within the state." Thejurisdictional inquiry under CPLR 302(a)(l) involves a "two-pronged analysis" 

### (Bangladesh Bank
vRizal CommercialBanking Corp., -AD3d-, 2024 WL 847976, at *11 [1st Dep Feb. 29, 2024]). "[U]nder the first prongthe defendant must have conducted sufficient activities to have transacted business in the state, and under the second prong, the

9 To ~he extent that Alberto maintains that the court may exercise generaljurisdictionover the Family Defendants or the Non-Resident Directors (see compl

### ,r,r 41, 43), thatcontention fails b~c~use none ofthem maintain New York as theirprimaryplace ofdomicile (see Bomfim aff

### ,r,r 8-9; V1e1ra afr,f,r 5•8; David aff

### ,r 4; Jacob aff

### ,r 4; Vicky aff,r 4).

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12 of 18 claims must arise from the transactions" 

### (Rushaid vPictet& Cie, 28 NY3d 316, 323 [2016]).
The next basis for specificjurisdictionis setforth in CPLR 302(a)(2), which provides that courts may exercisejurisdiction over a non·domiciliarywho, inperson or through an agent, "commits a tortious act within the state" (CPLR 302 [a] [2]). The mere occurrence ofan injuryin New York "cannot serve to transmute an out·ofstate tortious act into one committed here within the sense ofthe statutory wording" 

### (SOS Capital vRecyclingPaperPartnersof PA, LLC, 220 AD3d 25, 33·34 [1st Dept 2023]). Forthis reason, courts typically require that the defendant be physically present in New York at the time ofthe tort 

### (seeFramerS. C.A. vAhaplus Intl. Corp., 76 AD3d 89, 95-97 [1st Dept 2010]). This is true "even when the instrument ofthe tort itselfis in New York" (id. at 97).
The final basis for specificjurisdiction, as relevant here, is set forth in CPLR 302(a)(3)(ii). To establishjurisdiction under this subsection, a plaintiffmust demonstrate that (1) "defendant committed a tortious act outside [New York]," (2) "the cause ofaction arises from that act," (3) "the act caused injury to a person or property within [New York]," (4) "defendant expected or should reasonably have expected the act to have consequences in [New York]," and (5) "defendant derived substantial revenue from interstate or international commerce" 

### (LaMarca vPak· MorMfg. Co., 95 NY2d 210, 214 [2000]; 

### seealso CPLR 302[a][3][ii]). In New York "the situs ofcommercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred" 

### (Deutsche BankAGv Wk, 163 AD3d 414, 415 [1st Dept 2018]; 

### accord Uzan v Telsim Mobil Telekomunikasyon HizmetleriA.S., 51 AD3d 476, 478 [1st Dept 2008] ["the situs ofthe injury for long-arm purposes is where the event giving rise to the injury occurred, not where the resultant damages occurred"]). Here, Alberto invokes all three ofthe above-referenced subsections ofCPLR 302 to contend that the court may exercise specific over each ofSNBNY, the Non· Resident Directors, and the Family Defendants (Opp at 25·30). The court considers each ofAlberto's personaljurisdictionalbases in turn.
1. 

### SpecificJurisdiction overSNBNY
Alberto argues that the court may exercise specificjurisdiction over SNBNY under CPLR 302(a)(l) because his claims arise out ofSNBNY's purported transaction ofbusiness in New York, includingthe planning, execution, and approval ofthe Dilution Events (Opp at 25·27). There is, however, no indication from the complaint or the parties' submissions that Alberto's claims arise out ofany transaction in New York. As explained above, SNBNYis a holding company whose principal purpose is manage the shares it holds through SNYC 

### (see Roche aff

## ,r,r 4· 8; Bomfim aff

## ,r,r 4-5, 11·15). As a result, insofar as SNBNYhas transacted business in New York, it is solely through its investment activities 

### (cf. Gallelli: 701 F Supp

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13 of 18 2d at 272·274). AlthoughAlberto may allege that SNBNY (through acts ofother defendants) diluted his shareholder interest, the purported transactions resulting in this alleged dilution were ultimately effectuatedin Gibraltar, not New York, and impactedAlberto's shareholderinterests as registered in Gibraltar, not New York 

### (seecompl 

### ~f,r 9, 12, 66·83; Roche 

### aff,r,r 9·16; NYSCEF# 78). 10
Unable to establish harm flowing for SNBNY's own transaction ofbusiness in New York, Alberto againpoints to SNB's operations in New York to impute jurisdiction over SNBNY (compl 

## ,r 40). Specifically, Alberto contends that the court has specificjurisdiction over SNBNYbecause (1) it conducts its business through SNB, and (2) SNBNY's directors work out ofSNB's headquarters in New York (id.). Alberto's contentions arejust as unavailing as they were in the CPLR 301 context. To start, as explained above, "[m]ere ownership by a parent company ofa subsidiary that is subject to personaljurisdiction" does not subject the parent tojurisdictionin New York 

### (seeMoreau vRPM, Inc., 20 AD3d 456, 457 [2d Dept 2005]). Moreover, this court has already determined that there is no basis to conclude that SNB is a "mere department" ofSNBNYin the absence ofany control over SNB's activities or failure to observe corporate formalities. Simply stated, nothing in the record suggests that purportedjurisdiction arising from SNB's contacts within New York
canbe imputed on to SNBNY.
At any rate, there are no such allegations in the complaint supporting a conclusion that Alberto's claims arise from any transaction ofbusiness by SNB (ratherthan SNBNY). To assert specificjurisdictionunder CPLR 302(a)(l) over a non·domiciliary parent companybased on its subsidiary's contacts within New York, a plaintiffmust establish that the parent company "knew ofand consentedto" acts 

### bythein-statesubsidiarygiving rise to plaintiffs cause ofaction 

### (seeDeCraene vNeuhaus (U.S.A.), Inc., 2005 WL 1330761, at *5 [SD NY June 3, 2005, No. 04 Civ. 2876(GEL)], quoting 

### EFCO Corp. vNortek, 205 F3d 1322 [2d Cir 2000]); 

### seealso Gasarch, 149AD3d at 486-487 ["[t]o establish that a defendant acted through an agent, a plaintiffmust 'convince the courtthat [the New York actors] engaged in purposeful activities in this State in relation to [the] transaction for the benefit of and with the knowledge and consent of [the defendant] and that [the defendant] exercised some control over [the New York actors]"']). Here, however, all that the complaint alleges is that, through actions takenby defendants in their capacity as

10 In fact, the only true connection to New York is thatJoseph and certain defendants executed shareholder and board resolutions in New York (seecompl

### ,r,r 40, 42; seealsoBomfim aff

### ,r,r 17·18). Butthis fact is not determinative ofwhether SNBNY or the Non·ResidentDirectors transacted business under CPLR 302(a)(l) (seePresidentialRealty Corp vMichaelSq. W., 44 NY2d 672, 673· 674 [1978] [rejectingpersonaljurisdictionin the absence of"proofofany contacts with [New York] other than the fact that the modification letter and the agreementwere signed in New York"]; Galgay v Bulletin Co., 504 F2d 1062, 1065 &n2 [2d Cir 1974] [holding that the "fact that the contract was executed in New York" was not "determinative" ofdefendant's "purposeful activity" in New York]; YachtHaven USVILLCv The WestIndian Co. Ltd, 2022 WL 1555935, at *4 [Sup Ct, NY County, May 16, 2022} ["merely executing a contractin New York is not sufficient to satisfy the transaction-of-business prong ofthe statute")).

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14 of 18 shareholders and directors ofSNBNY, Alberto's shares in SNBNYwere dilutedto the direct benefit ofDavid and Jacob, and he was later deprived ofhis right to appoint a director to the SNBNYboard (with the latter claim now appearing to be moot). None ofthese allegations involved actions carried out by, or on behalfof, SNB orits representatives. Alberto's claims consequently lack any "articulable
nexus between the business transacted [by SNB] and the cause ofaction sued upon" byAlberto 

### (seeMcGowan v Smith, 52 NY2d 268, 272-273 [1981]). The court therefore cannot conclude that it may exercise specificjurisdiction over SNBNY under CPLR 302(a)(2) based on SNB's contacts with New York.
In sum, defendants' motion to dismiss Alberto's claims against SNBNYfor lack ofpersonaljurisdiction is granted.


### 2. SpecificJurisdiction overNon-ResidentDirectors
Alberto argues that the court can exercise specificjurisdiction over the Non· Resident Directors under CPLR 302(a)(l) because his claims arise out oftheir purported transaction ofbusiness in New York, includingtheir approval ofthe Dilution Events (Opp at 29-30). In support ofjurisdiction, Alberto alleges that the Non-Resident Directors maintain offices at SNB in New York and were likely in New York when they approved the resolutions dilutingAlberto's shares in SNBNY andrefused to recognize Alberto's director nominee 

### (see compl

## ,r 42). The court disagrees.
To reiterate, the alleged transactions underlyingAlberto's claims are the increase in share capital, the issuance ofnew Class B shares to Joseph, and the transfer ofthose shares to David and Jacob (compl 

## ,r,r 72·75). Although the relevant resolutions approving these transactions may have been executed and/or approved, in part, in New York 

### (see Bomfim aff

## ,r1 16·17; Vieira aff

## 1 15; 

### hutseeVieira aff

## ,r,r 11·12), they were ultimately preparedin Gibraltar and their actualimpact on SNBNY's shareholder interests was effectuated in Gibraltar (Roche aff

### 41f1 5, 9, 16; Bomfim aff

## ,r1 13·15). Thus, even assuming the Non·Resident Directors somehow did avail themselves to New York by virtue ofmaintaining offices at SNB, Alberto's claims do not arise from the Non-Resident Directors' alleged transactions within the state.1 1

11 NeitherMoneyGram PaymentSys., Inc. v Consorcio Oriental, S.A. (2007 WL 1489806 [SD NY May 21, 2007, No. 05 Civ. 10773(RMB)]) nor Kravitz vBinda (2020 WL 927534 [SD NY Jan. 21, 2020, No. 17·CV·07461 (ALC)(SN)]) warrant a different conclusion. For example, inMoneyGram, the court concluded thatit could exercise long·armjurisdiction over a company's shareholder where the company's actions underlying plaintiffs claim could be imputed to the shareholder, and the company had ~ransacted business in New York by entering into an agreementwith a New York corporation thatmcluded New York forum-selection and choice·of·law clauses (2007 WL 1489806 at* 5). Meanwhile, inKravitz, defendants' communications, travels, and business decisions, includingthe drafting ofboard resolutions in New York, were "partofa largerbusinessplanpurposefully directed at New York" (2020 WL 927534 at *7). Here, by contrast, the transactions underlyingAlberto's

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15 of 18 Defendants' motion to dismiss Alberto's claims against the Non-Resident Directors for lack ofpersonaljurisdictionis granted. 12 

### 8. SpecificJurisdiction overFamilyDefendants
Alberto argues that the court can exercise specificjurisdiction over the Family Defendants because they were either in New York when Joseph executed the resolutions diluting Alberto's interest in SNBNYor engagedin conduct that caused an injury that occurred in New York (Opp at 27·29). Neither basis for jurisdictionis availing.
Alberto first invokes CPLR 302(a)(2) by alleging that the Family Defendants took advantage ofJoseph's deteriorated state in New York (compl 

## ,r 44). Specifically, Alberto alleges that Vicky was with Joseph at the time ofthe Dilution Event, and David andJacob were "both aware" ofhis condition and in New York withJoseph on certain dates in December in relation to his medical issues (id). Nothinginthe complaint, however, supports the court exercisingpersonal jurisdictionpursuant to CPLR 302(a)(2). To start, although Vicky was in New York at the time Joseph purportedly executed the shareholder resolutions diluting Alberto's interests on December 4, 2019 (Vicky aff

## ,r 5), there is no meaningful dispute that both Jacob and David were out ofthe state at the time 

### (seeJacob aff 

## ,r 5; David aff

## ,r 5). Meanwhile, beyond a certain conclusory allegations that they "tortiously took advantage" ofJoseph and were aware ofhis medical conditions during a New York visit (seecompl

## ,r 44), the complaint fails allege what, if anything, the Family Defendants did withJoseph while in New York (c£ 

### id 

## ,r,r 58· 60 [allegingthat the Family Defendants hired Dr. Howard to examine Joseph in Geneva, Switzerland]; 

### id 

## ,r 62 [alleging that David "sought to assert influence over [Joseph]" in connection with the management ofBanco Safra in Brazil]). In the absence ofany non·conclusory allegations to the contrary, Alberto has failed to make a sufficient start establishing specificjurisdiction over the Family Defendants under CPLR 302(a)(2).
Alberto nextinvokes specificjurisdiction over the Family Defendants pursuant to CPLR 302(a)(3)(ii), alleging that, evenifthe Family Defendants were not in New York when they caused Joseph to dilute Alberto's shareholder interests in SNBNY, Alberto's dilution ofhis shareholderinterests occurred in New York (Opp at 28·29; see alsocompl

## ,r 45). This basis forjurisdiction, however, fails for largely the same reasons previously articulated by the court. To reiterate, the crux

claims were implemented outside ofNew York and impacted his shareholder interests registered in Gibraltar. 12 The court would reach the same conclusion aboutjurisdiction over the Non·Resident Directors regardingAlberto's claim that they prevented Alberto from nominating his appointment to the SNBNYboard. As certain letters submitted in connectionwith defendants' motion to dismiss indicate, defendants' alleged failure recognize Alberto's nomination seemingly originatedfrom Gibraltar, not New York (see NYSCEF#s 69·71).

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16 of 18 ofAlberto's allegations is that Joseph, under the undue influence ofthe Family Defendants, effectuated a transfer ofshares to Jacob and David that diluted Alberto's shareholder interests registered in Gibraltar, not New York (seecompl

## ,r,r 66·80). Although the resolutions approving this transaction mayhave been executed in New York, the actual dilution ofshares-includingthe recording and registration the relevant transfer ofshares 

### (see e.g. NYSCEF # 78)-was carried out by SNBNY, through its representatives, in Gibraltar. Because the impact ofthe Dilution Events flowed from Gibraltar, the "situs" ofAlberto's injury is not, as Alberto avers, in New York. 

### It is in Gibraltar.1 3 A finding ofspecificjurisdiction under CPLR 302(a)(3) over the Family Defendants, is unwarranted.
In conclusion, defendants' motion to dismissAlberto's claims against the Family Defendants for lack ofpersonaljurisdictionis granted.
C. Jurisdictional Discovery is Not Warranted
Alberto argues that ifpersonaljurisdiction is in question, the court should adjourn defendants' motion and permitAlberto to takejurisdictional discovery. In support, Alberto submits the Affirmation ofJonathan B. Oblak setting out purportedfacts that "may exist to supportjurisdictional discovery" (NYSCEF#104 

## ,r,r 3·9).
CPLR 3211(d) provides that, "[s]hould it appear from affidavits submitted in opposition to a motion made under [CPLR 3211(8)] that facts essential tojustify opposition may exist but cannot thenbe stated," then the court may direct that the parties engage injurisdictional discovery. In order to obtainjurisdictional discovery, "plaintiff[] must demonstrate the possible existence ofessentialjurisdictionalfacts that are not yet known" 

### (Copp vRamirez, 62 AD3d 23, 31·32 [1st Dept 2009]). This requires thatplaintiff"offer 'some tangible evidence which would constitute a 'sufficient start' in showingthatjurisdiction could exist, thereby demonstrating that its assertion that a jurisdictionalpredicate exists is not frivolous"' 

### (SNSBank, N. V. 

### v Citibank, N.A., 7 AD3d 352, 354 [1st Dept 2004], quoting

### Mandel vBusch Entertainment Corp., 215 AD2d 455,455 [2d Dept 1995]). Here, for the reasons explained above, Alberto has failed to make a "sufficient start" indicating thatjurisdiction could exist over SNBNY, the Family Defendants,
or the Non-Resident Directors. Furthermore, Alberto has failed to sufficiently indicate that facts exist that the court might deem essential to Alberto's opposition to defendants' motion to dismiss. At most, citingto allegations and arguments that this court has already considered, Alberto offers conjecture as to what he may find if afforded an opportunity to takejurisdictional discovery 

### (see NYSCEF# 104 

## ,r,r 3·9).

13 The same conclusion would be warranted insofarAlberto's tortious interference claim related to the F~mily_De~en~ants' alleged failure to recognize his board nominee is not mooted. Simplyput, there 1s no md1cation from the complaint or the parties' submissions that the situs ofinjury arising from this claim has any connection to New York.

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17 of 18 But more than conjecture is needed to support a conclusionthat forjurisdictional discovery is warranted 

### (see Warck-Meister vDiana Lowenstein FineArts, 7 AD3d 351, 352 [1st Dept 2004] [holding that "discovery was not warranted since plaintiff failed to advance any non-conjectural ground to believe that the disclosure sought would be productive ofevidence supporting an exercise ofjurisdiction over defendants"]). Alberto's request for jurisdictional discovery is denied.



### II. Defendants' Motion to 

### DismissAction 

### in the Absence ofa NecessaryParty
With SNBNY, the Family Defendants, and the Non·Resident Directors dismissed from the case for lack ofpersonaljurisdiction, the only remaining defendant in this action is defendant Morato. Defendants argue thatAlberto's complaint must now be dismissedbecause, in the absence of, 

### interalia, SNBNY, complete reliefcannotbe afforded 

### (see MOL at 29; Reply at 26). Under CPLR 3211(a)(10), a party may move to dismiss on the basis that "the court should not proceed inthe absence of' a necessaryparty (CPLR 3211 [a] [10]). CPLR l00l(a), in turn, defines necessary parties as either "[p]ersons [or entities] who ought to be parties ifcomplete reliefis to be accorded betweenthe persons who are partiesto the action or [persons or entities] who might be inequitably affected by a judgment in the action" (CPLR 1001 [a]; 

### Matterof 27th St. BlockAssn. vDormitoryAuth. of State of N. Y, 302 AD2d 155, 160 [1st Dept 2002]). In assessing the issue of complete relief, courts will consider whether the reliefsought against a defendant relies on, in part or inwhole, an adjudication ofthe liability ofand/or harm caused by the nonparty sought to bejoined 

### (seeAlmahLLCvAIGEmpl Servs., Inc., 159 AD3d 532, 532 [1st Dept 2018] [holding that complete reliefcould be accorded "between plaintiffand [defendant], withoutjoining [nonparty]" because "[defendant's] liability, ifany, will be limited to any damage that it caused during its tenancy; it will not be liable for damage that [nonparty] may have caused during its earliertenancy"]). Here, Alberto's claims allrelate to (1) the validity ofshare issued and maintained by SNBNY, (2) amendments to SNBNY's Articles, and (3) issues impacting SNBNY's corporate governance and internal affairs (to the extent not mooted) 

### (seecompl 

## ,r,r 104·182). And the reliefsoughtby Alberto necessarily requires an adjudication ofSNBNY's liability and/or the harm caused by its actions. Accordingly, as Alberto seemingly concedes 

### (see Opp at 32), the court cannot afford complete reliefwithout SNBNY, meaningthat full dismissal is warranted in the absence ofthis necessary party.
Consideration ofthe CPLR l00l(b) factors does not alter this conclusion. Under CPLR l00l(b), ifthe court lacksjurisdiction over a necessary party, it shall consider the following factors: "(1) whether plaintiffhas another remedy ifthe action is dismissed for nonjoinder; (2) the prejudice which may accrue from nonjoinder to the defendant or to the nonjoined party; (3) whether andby whom prejudice might have been avoided or may in the future be avoided; (4) the

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18 of 18 feasibility ofa protective provision; and (5) whether an effectivejudgment may be rendered in the absence ofthe nonjoined person" 

### (L-3 Communications Corp. v 

### SafeNet, Inc., 45 AD3d 1, 10·11 [1st Dept 2007]). Here, these factors largely weigh in favor ofdismissal ofthe entire action in the absence ofSNBNY. Forexample, Alberto has another remedy ifthis action is dismissed because he would be free to initiate this action in another forum (including in Gibraltar). By contrast, any judgment entered in this action would seeminglybe ineffective because the sole remaining defendant, Morato, would not be able to bind SNBNYon anyjudgment or declaration entered inthis action. Furthermore, allowing SNBNY's rights and obligations to be adjudicated in its absence would also be unfairly prejudicial, especially since the heart ofthis matterpertains to SNBNY's internal affairs, corporate governance, shareholder structure, and share capitalization. And a protective provision would not be able to cure this infirmity.
In sum, SNBNYis a necessaryparty under CPLR l00l(a). Butbecause the court lacks personaljurisdiction over SNBNY dismissal ofthe entirety action under CPLR 3211(a)(10) is warranted. 

### Conclusion
For the foregoing reasons, it is hereby
ORDERED that defendants' motion to dismiss the complaint in its entirety for lack ofpersonaljurisdiction under CPLR 3211(a)(8) is granted and the complaint is dismissed; and it is further
ORDERED thatthe Clerk ofthe Court shallenterjudgment accordingly; and it is further
ORDERED that defendants are to serve a copy ofthis order together with a notice ofentry upon plaintiffand the Clerk ofthe Court within 10 days ofthis order.

03/28/2024 DATE

CHECK ONE:

APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED
GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN

650710/2023 SAFRA vs. SNBNY HOLDINGS LIMITED ET AL Motion No. 005 NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

### □ OTHER**□** REFERENCE

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