Astier v Ondimba
2024 NY Slip Op 30006(U)
January 2, 2024
Supreme Court, New York County
Docket Number: Index No. 156010/2022
Judge: Mary V. Rosado
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. 156010/2022
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 01/02/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. MARY V. ROSADO PART 33M
Justice
-------------------X INDEX NO. 156010/2022
YAMILEE BONGO ASTIER. SASHA BONGO-ASTIER,
MOTION DATE 05/08/2023
Plaintiff,
MOTION SEQ. NO. 004
• V -
PASCALINE MFERRI BONGO ONDIMBA, NESTA BONGO-
PING, CHRISTOPHER BONG-PING, LYNN OTALY-
DECISION + ORDER ON
SERGENT, MAEL JUNIOR OTALY-SERGENT, AMIN ISHA
CORPORATION, PHARUS LLC MOTION
Defendant.
-········-···-··-··· · - - ·-----------------------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 004) 24, 25, 26, 27, 29,
32, 34, 37, 48
were read on th is motion to/for DISMISS
Upon the foregoing documents, and a fter oral argument which occurred on August 29,
2023 where Kenneth Sussmane, Esq. appeared for Plaintiffs Yamille Bongo Astier and Sasha
13ondo-1\stier (together, ''Plaintiffs"); Angelica Aminov, Esq. and Michael Grudbcrg, Esq.
appeared for Defendants Aminisha Corporation and Pharus LLC (the "Corporate Defendants");
and Alice Buttrick, Esq. and Jonathan P. Bach, Esq. appeared for l)cfcndants Pascalinc l'v!fcrri
Rongo Ondimba, Nesta Bongo-Ping, Christopher Bong-Ping, Lyrm Otaly-Sergent, and Mae]
Junior Otaly-Scrgcnt (together, the " Individual Defendants"), the Corporate l)cfcnclants motion
for an Order dismissing Pla inti ffs' claims against them is granted .
I. Bac.kground
Plaintiffs Yamillc Bongo Asticr and her daughter Sasha 13ondo-Asticr arc alleged to be
the daughter and granddaughter, respectfully, of Omar 13ongo Ondimba ("l'rcsiclcnt Ondimba"),
the former President of Gabon (NYSCEF l)oc. 35 at p. 5). Plaintiffs commenced this action
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against the Individual Defendants and Corporate Defendants (collectively, " Defendants") on July
19, 2022, claiming that after President Ondimba's death, Defendants misappropriated fonds from
President Ondimba's Estate (the "Estate'') that Plaintiffs were entitled to (NYSCEF Doc. I).
On May 8, 2023, the Individual De fendants brought a motion (Motion Sequence 3) to
dismiss Plaintiffs ' claims against them (NYSCEF Doc. 19). By Decision and Order dated
January 2, 2024, this Court granted the Individual Defendants' motion to dismiss Plaintiffs'
claims against them and denied Plaintiffs' cross-motion lbr leave to fi le an amended complaint.
On May 8, 2023, the Corporate Defendants brought the instant motion to dismiss
Plaintiffs' claims against them on the grounds th,ll (1) Plaintiffs lack standing; (2) this Court
lacks personal jurisdiction over the Corporate Defendants; (3) Plaintiffs' cl.aims are time-barred;
(4) Plaintiffs ' plead ing fails to state a cause or action; and (5) Plaintiffa' Complaint fails to
include necessary parties (NYSCEF Doc. 24).
II. Discussion
a. Plaintilfa' Claims are Dismissed for Lack of Personal Jurisdiction
The Corporate Defendants move to dismiss Plaintiffs' Complaint pursuant to, inter alia,
CPLR. 32 J l (a)(8) on the ground that this Court lacks personal jurisdiction over the Corporate
Defendants. Where a defendant moves to dismiss pursuant to CPI..R 32 11 (a)(8), it is the
plaintiffs burden to prove the court has jurisdiction (Copp v Ramirez, 62 AD3d 23, 28, 874 f l st
Dept 2009.1). As discussed below, Plaintiffs have failed to meet their burden of demonstrating
that this Court has personal jurisdiction over the Corporate Defendants.
It is well established that "a court may not exercise personal j urisdiction over a
nondomi ciliary unless two requirements are satisfied: the action is permissible under New
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York's long-arm statute, and the exercise ofjurisdiction comports with due prncess" (English v
Avon Prods.. Inc., 206 AD3d 404,405 [1st Dept 2022]).
1. Plaintiffa' Claims arc not Permissible Under CPLR 302(a)
Preliminarily, Plaintiffs concede that the Corporate Defendants are residents o f California
(NYSCEF Doc. 1 at ii!\ at 5). Pursuant to CPLR 302(a), a New York court may exercise
personal jurisdiction over any non-domici liary, or his executor or administrator, who in person or
through an agent:
( 1) transacts any business wi thin the state or contracts anywhere to
supply goods or services in the stale; or (2) commits a tortious act
within the state . .. ; or (3) commits a tortious act without the state
causing injury to person or property within the state ... if he (i)
regularly does or solicits business, or engages in any other persistent
course of conduct, or derives substantial revenue from goods used
or consumed or services rendered , in the state, or (ii) expects or
sho uld reasonably expect the act to have consequences in the state
and derives substantia.1 revenue from interstate or international
commerce; or (4) 0\,1lS, uses or possesses any real property simatcd
within the state.
Plaintiffs Complaint contains no allegation that the Corporate Defendants transacted any
busine.% in New York State, engaged in any tortious act within New York State, or possessed
any property in New York State. Nonetheless, Plaintiffs contend that the Complaint satisfies
each clement of CPLR 302(a)(3) with respect to the Corporate Defendants hccausc Plaintiffs'
claims, if proven, would "establish the tortious acts of fraudulent conveyance and unj ust
enrichment committed outside New York ... [wh.ich] would rea,onahle be expected to have
consequences tn Plaintiffs in New York" (NYSCEF Doc. 37 at p. 6). l'or the reasons outlined
below, this argument is unavai ling.
II is well established that, for the purposes of CPLH. 302(a)(3), " the situs or the injury is
the location o r the original event which caused the injury, not the location where the resultant
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damages arc subsequently felt" (Cotia (USA) Ltd v l.ynn Steel Cmp.. 134 AD3d 483. 484 fist
Dept 2015 J (internal citations omitted); see also (Marie v Altshuler, 30 AD3d 271, 272 I I st Dept
20061) (holding that " the rule that the situs of the injUI)' for long-am1 purposes is where the event
giving rise to the injury occurred, not where the resultant damages occurred, is not restricted 10
medical malpractice or personal injury cases"). Further, Courts have firmly held that ··the
residence or domicile of the injured party within a State is not a suflicicnt predicate for
jurisdiction. which must be based upon a more direct injury within the State and a closer
expectation of consequences within the State than the indirect financial loss resulting from the
fact that the injured person resides or is domiciled there·' (Famis Foods, Inc. v Standard
Importing Co. 49 NY2d 3 17, 326 f 19801; see also, (HH Trinity Apex lnvs. I.LC v Smith,
Anderson. JJloum. Dorsett. lvfifche/1 & Jernigan, L.L. P., 2 10 ADJd 474, 476 [ I st Dept 20221)
(ho lding thut " Plaintiff.~' rel iance on fan] alleged extortion as a bas is for CPL R 302(a)(3)
jurisdiction is ... misplaced, because their having felt economic inj ury in New York, a lone. is not
suflicicnt 10 confer jurisdiction under that subsection").
Accordingly, Plaintil'fs' claim that the effects of the Corporate De fendants' alleged
tortious conduct '·would reasonably be expected lo have consequences to Plaintiffs in New
York;' is not suflicienl lo allege that the Corporate Defendants commiucd a tortious act causing
injury to Plaintiffs ' person or property in l\ew York under Cl'LR 302(aX2) or (a)(3).
Having failed to claim that the Corporate Defendants transacted any business in Kew
York. engaged in any tortious act in New York, owned any property in New York , or caused any
injury 10 Plaintiffs· person or property in New York, Plaintiffs fail to establish that this Court has
personal jurisdiction over the Corporate Defendants under CPT.R 302(a). Accordingly, Plaintiffs'
claims against the Corporate Defendants must be dismissed.
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ii. This Court's Exercise of Personal Jurisdiction Over the Corporate
Defendants Would Not Comport with Due Process
Even assuming arguendo and contrat)' to law and fact that Plaintills surliciently pied
injury to person or property within New York, this Court's exercise of personal jurisdiction over
the Corporate Defendants would violate the requirements or due process.
Once the requirements of CPLR 302(a) have been met , further inquiry is required "to
determine whether the exercise of personal jurisdiction comports with traditional notions of fair
play, substantial justice, and due process" (l.:nglish at 406). The "due process" element "is
satisfied where the nondomiciliat)' has minimum contacts with New York State and based upon
those contacts, defendant could or should have reasonably anticipated being 'haled into court'
here" (Id. at 407).
The Court of Appeals has held that jurisdiction will be upheld "where the defendant
purposefully reaches beyond their State into another but 'the relationshi p between the defendant
and the forum state must arise out of defendant's own contacts with the forum and not contacts
between the plaintiff.. .and the fornm State"' (Slate o,(New York v Vayu, Inc. 39 NY3d 330, 337
r202Jl) (quoting Williams v Bee miller, Inc.. 33 NY3d 523, 529 [2019 J).
ln Walden v Fiore, 57 1 lJ.S. 277 (2014), the United States Supreme Court held that;
"mere injury to a forum resident i~ not a sufficient connection to the
fonun .. .The proper question is not where the plainti ff experienced
a particular injury or effect but whether the de/endant's conduct
connects him to the forum in a meaningful way.'·
The Walden Court forther held that where a defendant's relevant conduct occurred entirely out of
state, ''the mere fact that his conduct affected plaintiff~ wi th connections to the forum State does
not suffice to authorize jurisdiction" (Id. at 291). For the exercise of personal j urisdiction to be
proper, "it is essential that there be some act by which the defendant purposefully avails itself of
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the privilege of conducting activities within the forum State, thus invoking the benefits and
protections of its laws'' (DeUlsche Bank Sec., Inc. v i\tfomana Bd. oflnvs.. 21 t'\.D3d 90, 94 List
Dept 2005 J).
In the case at bar, Plaintiffs' Complaint fails to allege that the Corporate Defendants had
sufficient contacts with New York to estab lish personal jurisdiction. Plaintiffs' claim that the
Corporate Defendants knew that Plaintiffs lived in New York and were likely to suffer damages
there (NYSCEF Doc. 35 at p. 6) is insufficient to establish the Corporate Defendants requisite
contacts with New York.
As the Corporate Defendants arc not domiciled in New York and Plaintiffs have failed to
adequately c.laim that the Corporate Defendants transacted any business in New York, engaged
in any tortious act within New York, possessed any property in New York, caused injury to
Plainti ffs' person or properly in New York, or established the requisite minimum contacts in
New York to satisfy due process, this Court does not have personal jurisdiction over the
Corporate Defendants pursuant to CPLR 302, and Plainti ll\' claims against the Corporate
Defendants must be dismissed. 1
Accordingly, it is hereby,
ORDERED that the Corporate Defendants' motion fi.>r an Order dismissing Plaintiffa'
claims against them is granted, and Plaintiff.~' claims against the Corporate Defendants are
dismissed in their entirety; and it is further
ORDERED that wiihin ten (10) days of entry, counsel for the Corporate Defendants shall
serve a copy of this Decision and Order, with notice ofenlly, on Plaintiffs Yam ille Rongo Astier
and Sasha I3ondo-Astier; and it is further
1
Having dism issed Plaintiffs' chims ag ainst the Individual Defendants hascd on this Court's lack of personal
jurisdiction. lhc Individual Defendants' alternative grounds for dismissal need not be considcrcc.l.
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ORDF.RF.D that the Clerk oflhe Court is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.
11212024
DATE HON. RY V. ROSADO, J .S.C.
CHfC.KON1!: a CASE DISPOSED x NON..ftNAL otSPOSITION
GRANTED □ DENIED x GRAHTED IH PART □ OTHER
APPUC.I.TION: SETTLE ORDER SUS,.TOAOER
CHECK If APPROPRl•TE: INCLUDES TRANSFERJREASSIGN FIOUCIARY APPOINTMENT □ REFERENCE
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