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.
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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 CESAR BERTACO BOMFIM, 

SIMONI PAS SOS 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 

Plaintiff Alberto Joseph Safra Wberto) brings this action against defendants 

SNBNY Holdings 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 of Association (the Articles), tortious interference with 

contractual rights, undue influence, unfair prejudice under Gibraltar law, breach of 

fiduciary duties, and rescission of certain transactions decreasing Alberto's holdings 

in SNBNY (NYSCEF # 2- compl or the complaint). Presently before 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). For the 

following reasons, defendants' motion to dismiss is granted. 

Background.1 

This action involves a thorny inter-family dispute concerning the ownership 

and governance of SNBNY, a holding company that owns Safra National Bank of 

New York (SNB), a nationally charted United States bank headquartered in New 

1 The following facts, which are accepted as true solely for purpose of this motion, are drawn from 

the complaint, as well as the affirmations and exhibits submitted in connection with the motion. 

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Motion No. 005 

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York (com pl ,r,r 1 ·7, 18, 38, 49). Both SNBNY and SNB are part of a global portfolio 

of finance, real estate, and agricultural assets held by the Safra Group, an entity 

formerly headed and controlled by the late Joseph Yacoub 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 of their international interests, the Safra 

family prepared a comprehensive plan for Joseph's estate (compl ,r 51). As part of 

that estate plan, 28% of equity interests in Class B shares of SNBNY were to be 

distributed to each of Alberto, David, and Jacob, while 16% of equity interests were 

to be distributed to Esther (id ,r,r 19, 52, 71). Joseph in turn relied on these 

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's Shares in the Bafra Group's Assets 

In 2006, Alberto joined the executive management of Banco Safra S.A. (Banco 

Safra), a Brazilian commercial bank, eventually becoming a member of Banco 

Safra's Board of Directors in 2010 (compl ,r,r 20, 62). But when David joined the 

Banco Safra's management in 2008, issues between Alberto and his family began to 

emerge (see id). Specifically, David embarked on a campaign to gain power 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 on the bank's business, 

management, and strategy (id). This resulted in Alberto 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). But beginning in the 

latter half of 2019, Joseph's health significantly deteriorated (id ,r,r 15, 21, 54·57, 

61). Taking advantage of this 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 of the Safra family assets to their direct benefit (see id 

,r,r 21 ·22, 62-64). 

The first part of the Family Defendants' scheme involved obscuring the 

extent of Joseph's health decline (compl ,r 23). For example, on November 18, 2019, 

without informing Alberto, 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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a Professor of Old Age 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 that Joseph had 

sufficient mental capacity in aid of their efforts to make significant alterations to 

his estate planning (id). At the same time, the Family Defendants attempted to 

restrict Alberto 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 obfuscating Joseph's situation, the Family Defendants 

were able to then influence Joseph without Alberto's knowledge (see id ,r,r 23, 26· 

27, 63·65, 87). 

The second part of the Family Defendants' campaign involved having Joseph 

carry out a series of transactions that resulted in the dilution of Alberto's 

shareholder interests in SNBNY (the Dilution Events) (compl ,r,r 23, 66·73). The 

foundation of the Dilution Events began in the fourth quarter of 2019 (see id ,r,r 14· 

15, 66). Under Gibraltar law, SNBNY was required to have sufficient profits to 

support a capitalization event and the issuance of new shares to Joseph (id ,r 76). 

Accordingly, in November 2019, SNBNY allegedly switched, without explanation, 

from the US GAAP accounting standard to the International Financial Reporting 

Standards when preparing its financial statements, and this change became 

retroactively effective as of January 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 and belief, that these "write ups" were ultimately taken to 

artificially create profits and justify 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 SNBNY while decreasing 

Alberto's shares (see com pl. ,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 SNBNY to increase its share capital (see id 

,r 72 [ii]). That same day, Joseph allegedly passed a special resolution by which 

SNBNY's share capital increased from $100,000,613 (based on 613 Class A 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 of SNBNY's reserves and profits were capitalized (id ,r,r 9, 12, 69, 

72 [iv]). This resulted in the issuance of 660 new Class A shares and 107,665,100 

new Class B shares to Joseph (id ,r 72 [ivD. Finally, Joseph transferred his 

3 Alberto corroborates his belief by pointing to the fact that, in 2020, following the Dilution Events, 

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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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 of the Dilution Events, 

Alberto's Class B Share holdings were reduced from 28% to 13.47%, while David 

and Jacob's holdings both increased (see id 1113, 73).4 

According to Alberto, Joseph lacked the capacity to 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 by the Director Defendants (id 1 70). 

Alberto's Discoverv of the Dilution Events and Joseph's Passing 

On January 13, 2020, Alberto texted his mother to ask whether something 

had been done regarding his interest in the Safra family businesses (compl 1 90). 

The next day, Alberto received a letter, back·dated January 6, 2020, which was 

allegedly written and signed by Joseph (id). The letter expressed that Joseph was 

hurt by Alberto's decision to leave Banco Safra's management, but it made no 

mention of any dilution of Alberto's interest (id). Alberto responded to the letter by 

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 of the 

Dilution Events and did not display any of the sentiments raised in the 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 

of the dilution (id 1 88). Alberto had not previously received notice of any of the 

Dilution Events, or even confirmation of any changes to his Class B share holdings 

(id ,r 85). Nor has he received any purported approvals by the Director Defendants 

that were required to carry out the Dilution Events (id). 

The Present Lawsuit and Defendants, Challenge to Personal Jurisdiction 

Alberto commenced this action on February 6, 2023. This lawsuits represents 

just one of several proceedings across the globe challenging Joseph's estate 

administration and Alberto's dilution of interests in the Safra family businesses 

(compl ,r,r 7, 28; see also NYSCEF # 79 ,r,r 6·18). In this action, Alberto seeks to set 

aside, cancel, or rescind the transactions impacting his interest in SNBNY based on 

Joseph's alleged lack of mental 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 of their Class B shares to Esther, which 

returned her to her prior level of Class B share holdings (compl 141! 75, 86). This resulted in each of 

David and Jacob's Class B share holdings dropping to 35.26% (id). 

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claims for breach of the Articles, undue influence, unfair prejudice under Gibraltar 

law, and breach of fiduciary 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 general jurisdiction over the 

company because, although incorporated in Gibraltar, its principal place of business 

is in New York (id ,r 38). Alberto further avers that SNBNY has extensive contacts 

with New York and limited contacts with Gibraltar, citing the fact that (1) SNBNYs 

principal purpose as a holding company is to invest in common stock of SNB, 

(2) SNBNY is subject to regulation by the Federal Reserve in New York, (3) all three 

of SNBNYs 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 personal jurisdiction over SNBNY because, among 

other things, (i) SNBNY conducts 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 of the 

Family Defendants and the Director Defendants (id ,r 40). 

Alberto next turns to the court's alleged jurisdiction over the Director 

Defendants, contending that all three work in New York and two of the three 

maintain residences in New York (compl ,r 41). In so alleging, Alberto relies on the 

fact that the Director Defendants maintain offices, and engage in business, in New 

York by virtue of their positions within SNB (id). Alberto further states that the 

court independently has jurisdiction over the Director Defendants because his 

claims arise out of their 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 SNBNY interests (id). 6 

Alberto's final set of jurisdictional allegations relate to the Family 

Defendants. Alberto alleges that the court has personal jurisdiction 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 has jurisdiction over all the 

5 Alberto also brings causes of actions based on defendants' alleged failure to recognize Alberto's 

nomination to SNBNY's board of directors (compl. ,r,r 104·126). As alleged, on June 7, 2021, June 25, 

2021, and March 2022, Alberto sent letters to SNBNY and the Family Defendants to exercise his 

right to appoint a director pursuant to Article 61(a) of the Articles (id ,r,r 93·94). The Family 

Defendants, however, purportedly directed SNBNY not to recognize Alberto's director appointee, and 

on July 2, 2021, SNBNY sent a letter refusing to recognize Alberto's appointment until approved by 

the Federal Reserve (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 of his board appointment was taken by, or done with the 

knowledge of, the Director Defendants when they were likely in New York (compl ,r 42). 

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Family Defendants because they took advantage of Joseph's physical and mental 

state while he was in New York, explaining that Vicky was with Joseph at the time 

and David and Jacob were "both aware of his medical condition" and were present 

in New York with Joseph at certain points in December 2019 (id ,r 44). Alberto 

alternatively contends that, because SNBNY's principal place of business is alleged 

to be in New York, personal jurisdiction exists ove1· the Family Defendants because 

his injuries occurred in New York (id ,r 45). 

Defendants, in response, contest personal jurisdiction 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 of Liam Roche, the director of SNBNY's 

company secretary, Line Secretaries Limited (NYSCEF # 72 - Roche aff ,r,r 5·6). 

Roche contends that SNBNY has its principal place of business in Gibraltar, not 

New York, and he offers several fact 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 professional firms to provide auditing and 

legal services and representation in corporate matters (id ,r,r 5, 7·8). Roche further 

explains that SNBNY does not generally hold in·person board 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 implicating the 

allotment and issuance of shares 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 of Shares Transfer" in 

Gibraltar to register Joseph's transfer with the Registrar of Companies in Gibraltar 

(see id ,r 16; NYSCEF # 78). 

To further challenge personal jurisdiction over SNBNY, defendants also offer 

the affirmation of Bomfim who reiterates that SNBNY is 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 SNBNY has 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 resulting board 

resolutions are generally drafted in Gibraltar (see id ,r,r 14·15). 

Defendants next turn to the court's alleged jurisdiction over the NonResident Directors, offering the affirmations of Bomfim and Vieira to support their 

position. Vieira affirms that he is a citizen of Brazil 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 of SNB and other Safra Group·affiliated entities, he does not 

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conduct any business activities in New York (id ,r 9). Vieira goes on to explain that 

when Joseph signed the December 4, 2019, shareholder resolutions, and when 

Vieira signed the December 11, 2019, board resolution approving the capitalization 

of SNBNY and the issuance of new 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 transferring Josephs Class B shares to 

David and Jacob (id ,r 13). 

For his part, Bomfim explains that he is a citizen of the United States and 

Brazil and is a resident of New 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 of SNB and a director of some other Safra Group-affiliated 

entities, he does not conduct any business activities in New York (id ,r,r 6, 10). And 

regarding the 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's jurisdictional allegations concerning the 

Family Defendants by submitting affirmations from each of Vicky, David, and 

Jacob, who all affirm that they are citizens of Brazil, 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 residential property 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 per year in that apartment (see David aff ,r 4; Jacob aff ,r 4; 

Vicky aff ,r 4). Addressing the relevant events in Alberto's complaint, David affirms 

that he was New York to visit his father on December 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 of action on the ground that the court lacks personal jurisdiction 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 plaintiff the benefit of every 

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possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87·88 (1994]; Lawati 

v Montague Morgan Slade Ltd, 102 AD3d 427, 428 [1st Dept 2013]; Whitcraft v 

Runyon, 123 AD3d 811, 812 [2d Dept 2014]). Plaintiff nevertheless bears the 

"burden of presenting sufficient evidence, through affidavits and relevant 

documents, to demonstrate jurisdiction" (Coast to Coast Energy, Inc. v Gasarch, 149 

AD3d 485, 486 [1st Dept. 2017]). Although a plaintiff need not conclusively 

establish that there is personal jurisdiction in defending against a motion to 

dismiss, he or she must make at least a "sufficient start" in demonstrating its 

existence (see James v i'Flex Inc., 185 AD3d 22, 29·30 [1st Dept 2020] [explaining 

that plaintiff "need only make a 'sufficient start' in demonstrating, prima facie, the 

existence of personal jurisdiction"]). Conclusory assertions of jurisdiction will not 

suffice (see Gasarch, 149 AD3d at 487 [rejecting "vague, conclusory and 

unsubstantiated" allegations offered to support long arm jurisdiction]; Cotia (USA) 

Ltd v Lynn Steel Corp., 134 AD3d 483, 484 [1st Dept 2015] ["Plaintiff has offered 

nothing but conclusory assertions to support long·arm jurisdiction 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 personal jurisdiction (MOL at 8·31; Reply at 15· 

24). Defendants first argue that the court lacks general or specific jurisdiction over 

SNBNY because it is a holding company incorporated in Gibraltar with its principal 

place of business in Gibraltar, and none of Alberto's claims arise out of any 

transaction or activities conducted by it in New York (see MOL at 10· 17; Reply at 

15·19). Regarding the Family Defendants, defendants contend, the complaint fails 

to plead either general or specific jurisdiction because none of them maintain their 

primary residences in New York, none of them have had "extensive contacts" with 

the state, and none of them engaged in wrongful conduct within the state or caused 

injury within the state (MOL at 17·26; Reply at 20·24). As for the Non-Resident 

Directors, defendants aver that the court lacks either general or specific jurisdiction 

because neither of them are domiciled in New York or engaged in extensive 

business activities in the state, and none of Alberto's claims arise out of any of the 

directors' transactions of business in New York (MOL at 26·28; Reply at 19·20).7 

Alberto counters that he has made a prima facie showing of personal 

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 specific jurisdiction over SNBNY based on his allegations that its 

principal place of business is in New York and that the relevant transactions at 

7 Defendants also move to dismiss on the grounds of forum non conveniens and failure to state a 

claim (see MOL at 31·50). Because Alberto has failed to establish personal jurisdiction over SNBNY, 

the Family Defendants, and the Non-Resident Directors, the court does not reach these alternative 

bases for dismissal. 

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issue in the complaint took place in New York (id at 22·27). He further contends 

that he has sufficiently established that the court may exercise specific jurisdiction 

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 exercise jurisdiction 

because they were in New York when Joseph and SNBNY carried 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 of their 

transaction of business in New York (id at 29·30). 

The court addresses the parties' contentions below. 

I. Defendants' Motion to Dismiss for Lack of Personal Jurisdiction 

A. General Jurisdiction under CPLR 301 

Although he alleges in the complaint that the court has general jurisdiction 

over all defendants (see compl -,i 41), Alberto's general jurisdiction arguments in his 

opposition focus solely on SNBNY (see Opp at 22·30). Alberto contends that the 

court may exercise general jurisdiction over SNBNY on the grounds that its 

decisions are made in New York and thus its principal place of business is here (id 

at 22). Specifically, Alberto argues, SNBNY's decisions originate in New York, not 

Gibraltar, because its three directors exercise control over SNBNY from SNB in 

Manhattan, and hence, SNBNY's decisions are made in New York (id. at 22·24). 

For a court to exercise general jurisdiction over a defendant, a defendant 

must generally either be domiciled or have its principal place of business in New 

York (Bracco v E. Metal Recycling Term. LLC, 211 AD3d 628,628 [1st Dept 2022]). 

To establish that a company's principal place of business is in New York, plaintiff 

must demonstrate that a company's "nerve center" is in New York (see Robins v 

Procure Treatment Ctrs., Inc., 179 AD3d 412, 414 [1st Dept 2020]). A company's 

"nerve center" is the place where "the majority of its executive and administrative 

functions are performed" (Hertz Corp. v Friend, 559 US 77, 82 [2010]). There are 

also "exceptional case[s]" where a court may exercise general jurisdiction 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" (KPP II CCT LLC v Douglas Dev. 

Corp., 222 AD3d 408, 408 [1st Dept 2023]; see also Daimler AG v Bauman, 571 US 

117, 139 [2014]). 

Here, to establish general jurisdiction over SNBNY, Alberto alleges that 

SNBNY's principal place of business is in New York (compl 1 38). But defendants' 

sworn submissions establish that, in addition to being incorporated in Gibraltar, 

SNBNY's principal place of business is also in Gibraltar. As an initial matter, as 

affirmed by both Roche and Bomfim, SNBNY is merely a holding company 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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Motion No. 005 Page 9 of 18 

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SNBNY's only business activity is managing the shares it holds, with its 

administrative and corporate affairs being handled and maintained in Gibraltar 

(see Roche aff 1 4·9, 16; see also NYSCEF # 78). Gibraltar also happens to be the 

place in which SNBNY's written shareholder and board 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; see also NYSCEF # 7 4 at 4; NYSCEF # 78) By contrast, SNBNY has 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 aff i-1111·12). Viewing these facts 

together, the record supports a conclusion that, although SNBNY's operations in 

Gibraltar may not necessarily be substantial in scope, it is Gibraltar, not New York, 

where the majority of SNBNY'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] [explaining that, for 

purposes of establishing a company's principal place of business "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 impute jurisdiction over SNBNY (seecompl i-11 38-39). Such reliance is 

misplaced. It is true that in certain limited circumstances, CPLR 301 jurisdiction 

may be established by the acts of related entities to the named defendant (see 

Delagi v Volkswagenwerk AG ofWolfsburg, Germany, 29 NY2d 426,432 [1972])). 

But the mere existence of a parent-subsidiary relationship, alone, does not confer 

jurisdiction over a company (see FIMBank P.L. C. v Woori Fin. Holdings Co. Ltd., 

104 AD3d 602, 602-603 [1st Dept 2013] [rejecting that defendant was subject to 

personal jurisdiction based on ownership of subsidiary]; Porter v LSB Indus., Inc., 

192 Ad2d 205, 213 [4th Dept 1993] [explaining that "[a] finding of agency for 

jurisdictional purposes will not be inferred from the mere existence of a parent· 

subsidiary relationship"]; see also Cortlandt St. Recovery Corp. v Bonderman, 73 

Misc3d 1217[A], at *7 [Sup Ct, NY County, 2021], mod on other grounds, 215 AD3d 

446 [1st Dept 2023] ["the presence of a local corporation does not create jurisdiction 

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 of the parent" (Delagi, 29 NY2d at 432; 

accord Blount v Bovis Lend Lease LMB, Inc., 49 AD3d 293, 294 [1st Dept 2008]). To 

determine if a subsidiary is a "mere department" of its parent, courts consider the 

following factors: (1) "common ownership"; (2) "financial dependency of the 

subsidiary on the parent"; (3) the "degree to which the parent corporation interferes 

in the selection and assignment of the subsidiary's executive personnel and fails to 

8 That SNBNY may be regulated by the Federal Reserve by virtue of its interests in SNB does not 

alter this determination (c£ Okoroafor v Emirates Airlines, 195 AD3d 540, 541 [1st Dept 2021] 

~"r~gi~tr~tio~ to do business in New York does not constitute consent to submit to general 

Jur1sd1ct1on m New York for causes of action that are unrelated to its affiliation with New York"); 

Advance 1!ealty Assocs. v Krupp, 636 FSupp 316, 317·318 [SD NY 1986] [registration of several 

partnerships as broker dealers in New York did not confer general jurisdiction over those entities]). 

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observe corporate formalities"; and (4) "the degree of control over the marketing and 

operational policies of the subsidiary exercised by the parent" ( Volkswagenwerk AG. 

v Beech Aircraft Corp., 751 F2d 117, 120·122 [2d Cir 1984]; accord FIA Leveraged 

Fund Ltd v Grant Thornton LLP, 150 AD3d 492,493 [1st Dept 2017] [relying on the 

four factor test set out by the Second Circuit in Beech Aircraftl). 

The crux of Alberto's position is that SNBNY is "at home" in New York 

because, as he alleges, (1) SNBNY is 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 SNBNY in 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" of SNBNY. For instance, 

beyond identifying common ownership and some financial ties, the complaint does 

not suggest that SNBNY exerts control over SNB's activities and operations or that 

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]"]; see also FIA Leveraged Fund, 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 general jurisdiction over SNBNY. The 

court next turns to Alberto's specific jurisdiction 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 specific jurisdiction over a non-domiciliary (CPLR 302 [aD. 

Preliminarily, under CPLR 302(a)(l), a court may exercise jurisdiction over a non· 

domiciliary who "transacts any business within the state." The jurisdictional 

inquiry under CPLR 302(a)(l) involves a "two-pronged analysis" (Bangladesh Bank 

v Rizal Commercial Banking Corp., -AD3d-, 2024 WL 847976, at *11 [1st Dep Feb. 

29, 2024]). "[U]nder the first prong the 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 general jurisdiction over the 

Family Defendants or the Non-Resident Directors (see compl ,r,r 41, 43), that contention fails 

b~c~use none of them maintain New York as their primary place of domicile (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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claims must arise from the transactions" (Rushaid v Pictet & Cie, 28 NY3d 316, 323 

[2016]). 

The next basis for specific jurisdiction is set forth in CPLR 302(a)(2), which 

provides that courts may exercise jurisdiction over a non·domiciliary who, in person 

or through an agent, "commits a tortious act within the state" (CPLR 302 [a] [2]). 

The mere occurrence of an injury in New York "cannot serve to transmute an out·ofstate tortious act into one committed here within the sense of the statutory 

wording" (SOS Capital v Recycling Paper Partners of PA, LLC, 220 AD3d 25, 33·34 

[1st Dept 2023]). For this reason, courts typically require that the defendant be 

physically present in New York at the time of the tort (see Framer S. C.A. v Ahaplus 

Intl. Corp., 76 AD3d 89, 95-97 [1st Dept 2010]). This is true "even when the 

instrument of the tort itself is in New York" (id. at 97). 

The final basis for specific jurisdiction, as relevant here, is set forth in CPLR 

302(a)(3)(ii). To establish jurisdiction under this subsection, a plaintiff must 

demonstrate that (1) "defendant committed a tortious act outside [New York]," 

(2) "the cause of action 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 v Pak· 

Mor Mfg. Co., 95 NY2d 210, 214 [2000]; see also CPLR 302[a][3][ii]). In New York 

"the situs of commercial injury is where the original critical events associated with 

the action or dispute took place, not where any financial loss or damages occurred" 

(Deutsche Bank AG v Wk, 163 AD3d 414, 415 [1st Dept 2018]; accord Uzan v 

Telsim Mobil Telekomunikasyon Hizmetleri A.S., 51 AD3d 476, 478 [1st Dept 2008] 

["the situs of the 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 of the above-referenced subsections of CPLR 

302 to contend that the court may exercise specific over each of SNBNY, the Non· 

Resident Directors, and the Family Defendants (Opp at 25·30). The court considers 

each of Alberto's personal jurisdictional bases in turn. 

1. Specific Jurisdiction over SNBNY 

Alberto argues that the court may exercise specific jurisdiction over SNBNY 

under CPLR 302(a)(l) because his claims arise out of SNBNY's purported 

transaction of business in New York, including the planning, execution, and 

approval of the Dilution Events (Opp at 25·27). There is, however, no indication 

from the complaint or the parties' submissions that Alberto's claims arise out of any 

transaction in New York. As explained above, SNBNY is 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 SNBNY has transacted business 

in New York, it is solely through its investment activities (cf. Gallelli: 701 F Supp 

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2d at 272·274). Although Alberto may allege that SNBNY (through acts of other 

defendants) diluted his shareholder interest, the purported transactions resulting in 

this alleged dilution were ultimately effectuated in Gibraltar, not New York, and 

impacted Alberto's shareholder interests 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 of business in 

New York, Alberto again points to SNB's operations in New York to impute 

jurisdiction over SNBNY (compl ,r 40). Specifically, Alberto contends that the court 

has specific jurisdiction over SNBNY because (1) it conducts its business through 

SNB, and (2) SNBNY's directors work out of SNB's headquarters in New York (id.). 

Alberto's contentions are just as unavailing as they were in the CPLR 301 context. 

To start, as explained above, "[m]ere ownership by a parent company of a subsidiary 

that is subject to personal jurisdiction" does not subject the parent to jurisdiction in 

New York (see Moreau v RPM, 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" of SNBNY in the absence of any control over SNB' s activities or 

failure to observe corporate formalities. Simply stated, nothing in the record 

suggests that purported jurisdiction arising from SNB's contacts within New York 

can be 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 of business by SNB 

(rather than SNBNY). To assert specific jurisdiction under CPLR 302(a)(l) over a 

non·domiciliary parent company based on its subsidiary's contacts within New 

York, a plaintiff must establish that the parent company "knew of and consented to" 

acts by the in-state subsidiary giving rise to plaintiffs cause of action (see DeCraene 

v Neuhaus (U.S.A.), Inc., 2005 WL 1330761, at *5 [SD NY June 3, 2005, No. 04 Civ. 

2876(GEL)], quoting EFCO Corp. v Nortek, 205 F3d 1322 [2d Cir 2000]); see also 

Gasarch, 149 AD3d at 486-487 ["[t]o establish that a defendant acted through an 

agent, a plaintiff must 'convince the court that [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 taken by defendants in their capacity as 

10 In fact, the only true connection to New York is that Joseph and certain defendants executed 

shareholder and board resolutions in New York (seecompl ,r,r 40, 42; seealsoBomfim aff ,r,r 17·18). 

But this fact is not determinative of whether SNBNY or the Non· Resident Directors transacted 

business under CPLR 302(a)(l) (see Presidential Realty Corp v Michael Sq. W., 44 NY2d 672, 673· 

67 4 [1978] [rejecting personal jurisdiction in the absence of "proof of any contacts with [New York] 

other than the fact that the modification letter and the agreement were 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" of defendant's "purposeful activity" in 

New York]; Yacht Haven USVI LLC v The West Indian Co. Ltd, 2022 WL 1555935, at *4 [Sup Ct, 

NY County, May 16, 2022} ["merely executing a contract in New York is not sufficient to satisfy the 

transaction-of-business prong of the statute")). 

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shareholders and directors of SNBNY, Alberto's shares in SNBNY were diluted to 

the direct benefit of David and Jacob, and he was later deprived of his right to 

appoint a director to the SNBNY board (with the latter claim now appearing to be 

moot). None of these allegations involved actions carried out by, or on behalf of, 

SNB or its representatives. Alberto's claims consequently lack any "articulable 

nexus between the business transacted [by SNB] and the cause of action sued upon" 

by Alberto (see McGowan v Smith, 52 NY2d 268, 272-273 [1981]). The court 

therefore cannot conclude that it may exercise specific jurisdiction 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 SNBNY for 

lack of personal jurisdiction is granted. 

2. Specific Jurisdiction over Non-Resident Directors 

Alberto argues that the court can exercise specific jurisdiction over the Non· 

Resident Directors under CPLR 302(a)(l) because his claims arise out of their 

purported transaction of business in New York, including their approval of the 

Dilution Events (Opp at 29-30). In support of jurisdiction, 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 diluting Alberto's shares in SNBNY 

and refused to recognize Alberto's director nominee (see com pl ,r 42). The court 

disagrees. 

To reiterate, the alleged transactions underlying Alberto's claims are the 

increase in share capital, the issuance of new Class B shares to Joseph, and the 

transfer of those 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; hut see Vieira aff ,r,r 

11 ·12), they were ultimately prepared in Gibraltar and their actual impact 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 of maintaining offices at SNB, Alberto's 

claims do not arise from the Non-Resident Directors' alleged transactions within the 

state.11 

11 Neither MoneyGram Payment Sys., Inc. v Consorcio Oriental, S.A. (2007 WL 1489806 [SD NY 

May 21, 2007, No. 05 Civ. 10773(RMB)]) nor Kravitz v Binda (2020 WL 927534 [SD NY Jan. 21, 

2020, No. 17·CV·07 461 (ALC)(SN)]) warrant a different conclusion. For example, in MoneyGram, the 

court concluded that it could exercise long·arm jurisdiction 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 agreement with a New York corporation 

that mcluded New York forum-selection and choice·of·law clauses (2007 WL 1489806 at* 5). 

Meanwhile, in Kravitz, defendants' communications, travels, and business decisions, including the 

drafting of board resolutions in New York, were "part of a larger business plan purposefully directed 

at New York" (2020 WL 927534 at *7). Here, by contrast, the transactions underlying Alberto's 

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Defendants' motion to dismiss Alberto's claims against the Non-Resident 

Directors for lack of personal jurisdiction is granted. 12 

8. Specific Jurisdiction over Family Defendants 

Alberto argues that the court can exercise specific jurisdiction over the 

Family Defendants because they were either in New York when Joseph executed 

the resolutions diluting Alberto's interest in SNBNY or engaged in conduct that 

caused an injury that occurred in New York (Opp at 27·29). Neither basis for 

jurisdiction is availing. 

Alberto first invokes CPLR 302(a)(2) by alleging that the Family Defendants 

took advantage of Joseph's deteriorated state in New York (compl ,r 44). 

Specifically, Alberto alleges that Vicky was with Joseph at the time of the Dilution 

Event, and David and Jacob were "both aware" of his condition and in New York 

with Joseph on certain dates in December in relation to his medical issues (id). 

Nothing in the complaint, however, supports the court exercising personal 

jurisdiction pursuant 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 of the state at the time (see Jacob aff 

,r 5; David aff ,r 5). Meanwhile, beyond a certain conclusory allegations that they 

"tortiously took advantage" of Joseph and were aware of his medical conditions 

during a New York visit (seecompl ,r 44), the complaint fails allege what, if 

anything, the Family Defendants did with Joseph while in New York (c£ id ,r,r 58· 

60 [alleging that 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 of Banco Safra in Brazil]). In the 

absence of any non·conclusory allegations to the contrary, Alberto has failed to 

make a sufficient start establishing specific jurisdiction over the Family Defendants 

under CPLR 302(a)(2). 

Alberto next invokes specific jurisdiction over the Family Defendants 

pursuant to CPLR 302(a)(3)(ii), alleging that, even if the Family Defendants were 

not in New York when they caused Joseph to dilute Alberto's shareholder interests 

in SNBNY, Alberto's dilution of his shareholder interests occurred in New York 

(Opp at 28·29; see alsocompl ,r 45). This basis for jurisdiction, however, fails for 

largely the same reasons previously articulated by the court. To reiterate, the crux 

claims were implemented outside of New York and impacted his shareholder interests registered in 

Gibraltar. 

12 The court would reach the same conclusion about jurisdiction over the Non· Resident Directors 

regarding Alberto's claim that they prevented Alberto from nominating his appointment to the 

SNBNY board. As certain letters submitted in connection with defendants' motion to dismiss 

indicate, defendants' alleged failure recognize Alberto's nomination seemingly originated from 

Gibraltar, not New York (see NYSCEF #s 69·71). 

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of Alberto's allegations is that Joseph, under the undue influence of the Family 

Defendants, effectuated a transfer of shares 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 may have been executed 

in New York, the actual dilution of shares-including the recording and registration 

the relevant transfer of shares (see e.g. NYSCEF # 78)-was carried out by SNBNY, 

through its representatives, in Gibraltar. Because the impact of the Dilution Events 

flowed from Gibraltar, the "situs" of Alberto's injury is not, as Alberto avers, in New 

York. It is in Gibraltar.13 A finding of specific jurisdiction under CPLR 302(a)(3) 

over the Family Defendants, is unwarranted. 

In conclusion, defendants' motion to dismiss Alberto's claims against the 

Family Defendants for lack of personal jurisdiction is granted. 

C. Jurisdictional Discovery is Not Warranted 

Alberto argues that if personal jurisdiction is in question, the court should 

adjourn defendants' motion and permit Alberto to take jurisdictional discovery. In 

support, Alberto submits the Affirmation of Jonathan B. Oblak setting out 

purported facts that "may exist to support jurisdictional 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 to justify 

opposition may exist but cannot then be stated," then the court may direct that the 

parties engage in jurisdictional discovery. In order to obtain jurisdictional discovery, 

"plaintiff[] must demonstrate the possible existence of essential jurisdictional facts 

that are not yet known" (Copp v Ramirez, 62 AD3d 23, 31·32 [1st Dept 2009]). This 

requires that plaintiff "offer 'some tangible evidence which would constitute a 

'sufficient start' in showing that jurisdiction could exist, thereby demonstrating that 

its assertion that a jurisdictional predicate exists is not frivolous"' (SNS Bank, N. V. 

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

Entertainment Corp., 215 AD2d 455,455 [2d Dept 1995]). 

Here, for the reasons explained above, Alberto has failed to make a "sufficient 

start" indicating that jurisdiction 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, citing to allegations and arguments that 

this court has already considered, Alberto offers conjecture as to what he may find if 

afforded an opportunity to take jurisdictional discovery (see NYSCEF # 104 ,r,r 3·9). 

13 The same conclusion would be warranted insofar Alberto's tortious interference claim related to 

the F~mily _De~en~ants' alleged failure to recognize his board nominee is not mooted. Simply put, 

there 1s no md1cation from the complaint or the parties' submissions that the situs of injury arising 

from this claim has any connection to New York. 

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But more than conjecture is needed to support a conclusion that for jurisdictional 

discovery is warranted (see Warck-Meister v Diana Lowenstein Fine Arts, 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 of evidence supporting an exercise of jurisdiction over 

defendants"]). Alberto's request for jurisdictional discovery is denied. 

II. Defendants' Motion to Dismiss Action in the Absence of a Necessary Party 

With SNBNY, the Family Defendants, and the Non· Resident Directors 

dismissed from the case for lack of personal jurisdiction, the only remaining 

defendant in this action is defendant Morato. Defendants argue that Alberto's 

complaint must now be dismissed because, in the absence of, inter alia, SNBNY, 

complete relief cannot be 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 in the absence of' a necessary party (CPLR 3211 [a] [10]). CPLR l00l(a), in 

turn, defines necessary parties as either "[p]ersons [or entities] who ought to be 

parties if complete relief is to be accorded between the persons who are parties to 

the action or [persons or entities] who might be inequitably affected by a judgment 

in the action" (CPLR 1001 [a]; Matter of 27th St. Block Assn. v Dormitory Auth. of 

State of N. Y, 302 AD2d 155, 160 [1st Dept 2002]). In assessing the issue of 

complete relief, courts will consider whether the relief sought against a defendant 

relies on, in part or in whole, an adjudication of the liability of and/or harm caused 

by the nonparty sought to be joined (see Almah LLC v AIG Empl Servs., Inc., 159 

AD3d 532, 532 [1st Dept 2018] [holding that complete relief could be accorded 

"between plaintiff and [defendant], without joining [nonparty]" because 

"[defendant's] liability, if any, 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 earlier tenancy"]). 

Here, Alberto's claims all relate to (1) the validity of share 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 relief sought by Alberto necessarily 

requires an adjudication of SNBNY's liability and/or the harm caused by its actions. 

Accordingly, as Alberto seemingly concedes (see Opp at 32), the court cannot afford 

complete relief without SNBNY, meaning that full dismissal is warranted in the 

absence of this necessary party. 

Consideration of the CPLR l00l(b) factors does not alter this conclusion. 

Under CPLR l00l(b), if the court lacks jurisdiction over a necessary party, it shall 

consider the following factors: "(1) whether plaintiff has another remedy if the 

action is dismissed for nonjoinder; (2) the prejudice which may accrue from 

nonjoinder to the defendant or to the nonjoined party; (3) whether and by whom 

prejudice might have been avoided or may in the future be avoided; (4) the 

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feasibility of a protective provision; and (5) whether an effective judgment may be 

rendered in the absence of the nonjoined person" (L-3 Communications Corp. v 

SafeNet, Inc., 45 AD3d 1, 10·11 [1st Dept 2007]). Here, these factors largely weigh 

in favor of dismissal of the entire action in the absence of SNBNY. For example, 

Alberto has another remedy if this 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 seemingly be ineffective because the sole 

remaining defendant, Morato, would not be able to bind SNBNY on any judgment or 

declaration entered in this action. Furthermore, allowing SNBNY's rights and 

obligations to be adjudicated in its absence would also be unfairly prejudicial, 

especially since the heart of this matter pertains 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, SNBNY is a necessary party under CPLR l00l(a). But because the 

court lacks personal jurisdiction over SNBNY dismissal of the 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 of personal jurisdiction under CPLR 3211(a)(8) is granted and the 

complaint is dismissed; and it is further 

ORDERED that the Clerk of the Court shall enter judgment accordingly; and 

it is further 

ORDERED that defendants are to serve a copy of this order together with a 

notice of entry upon plaintiff and the Clerk of the Court within 10 days of this 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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