Transfer $8 Million Out Of Accounts In New York? That Action Alone Is Not Sufficient To Establish Personal Jurisdiction

In Henkel v. Masiero, Index No. 650425/2012 (N.Y. Sup. Ct., N.Y. Cnty. Mar. 18, 2013) (the “Opinion”), the Supreme Court (J. Bransten) granted the defendants' motion to dismiss for lack of personal jurisdiction on the grounds that one telephone call with a bank was not sufficient to establish jurisdiction under Section 302(a)(1) of the CPLR, even though almost all of the assets of a corporation were transferred as a result of that call.

In 2006, Annibale Raglione (“Raglione”) established Bidone Nero Ltd. (“Bidone”), a corporation organized under the laws of the British Virgin Islands, to hold cash and investments for himself, his sister, Defendant Floriana Raglione Masiero (“Floriana”), Floriana's son, Defendant Adrian Salvador Masiero (“Adriano”), and Raglione's great niece, Plaintiff Ana Paula Henkel (“Henkel”). Raglione, Floriana, Adriano, and Henkel jointly owned Bidone, but Raglione and Floriana were its only directors. All of Bidone's owners and directors were Brazilian citizens domiciled in Brazil. Shortly after being incorporated, Bidone opened accounts at HSBC in New York City and deposited its assets into those accounts.

On March 15, 2010, Raglione died and his interests in Bidone were districted equally among Floriana, Adriano, and Henkel. As of March 31, 2010, Bidone had almost $9 million in cash and investments in its accounts at HSBC. Shortly after her brother's death, Floriana sent HSBC a “Signing Resolution” designating her husband, Defendant Giuliano Masiero, as an authorized signatory on the HSBC accounts. Henkel alleged that Defendants also “commenced a systematic looting of the Bidone [a]ccounts without [Henkel's] knowledge or consent” including: (1) incurring $86,000 in credit card charges; (2) transferring $310,000 to companies in Florida and China; (3) transferring $50,000 to relatives and friends in Italy; and (4) transferring almost $8 million, all cash and investments in the Bidone accounts, to two other HSBC accounts in New York. Henkel alleged that the $8 million transfer was made by a single telephone call with Mr. Moises Chami.

Henkel asserted jurisdiction under CPLR § 302(a)(1), which provides that[a]s to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary … who … transacts any business within the state …. Since that statute is a single act statute, the court may exercise personal jurisdiction if the defendant's...