Under the terms of Hunter's insurance policy, FCIA allegedly is or could be subrogated to a certain right to recovery belonging to Hunter against defendant for losses resulting from defendant's failure to pay the balance of the note. Plaintiffs move for an order of attachment against defendant, arguing that property belonging to defendant is located in this state in the form of accounts at Chase Manhattan Bank, Banque Paribas, Merrill Lynch and Banco Serfin. Plaintiffs contend that attachment is appropriate because defendant is not qualified to do business in New York, and because there is a prima facie cause of action in which plaintiffs believe they will succeed on the merits. Plaintiffs also claim that they have no knowledge of any counterclaims related to this action. In opposition to the motion, defendant raises the issue of lack of jurisdiction.
Defendant denies doing or transacting any business in New York.
Defendant specifically asserts that the transaction at bar and the execution of the promissory note was not negotiated or executed in New York and therefore cannot form the basis of jurisdiction in this case. Defendant also asserts that the note contains a forum selection clause that specifically excludes this jurisdictionfrom hearing this action. Defendant states that this court should respect the terms of this clause, which refers to the specific courts to which it and Hunter agreed to submit. Moreover, defendant contends that New York lacks an overriding interest in this case, which consists of a contract dispute between a Mexican company and Texas company over goods shipped outside the United States. Defendant argues that FCIA's connection to this action is at best, premature, since it is not clear that it is a subrogee to Hunter at this time, and it was not a party to the Note.