Opinion
Index No. 530347/2022 Mot. Seq. Nos. 1 2
01-09-2024
ABDULLAH SALEH ELFGEEH, Plaintiff, v. NASSER ELFGEEH, a/k/a NASIR AL-FAQIH, MOSHIN QATABI, ABAD ELFGEEH. and HAZAN ALSAYDI, Defendants.
Unpublished Opinion
Motion Date: 6-27-23
DECISION/ORDER
PETER P. SWEENEY, J.S.C.
The following papers, which are e-filed with NYCEF as documents 9 through 26 were read on these motions:
In Motion Sequence # 1, the defendants, NASSER ELFGEEH a/k/a NASIR AL-FAQIH, MOSHIN QATABI, ABAD ELFGEEH, and HAZAN ALSAYDI, move for an order (1) dismissing the action in its entirety pursuant to CPLR 3211 (a)(10), for Plaintiffs failure to join a necessary party; (2) dismissing the action in its entirety pursuant to CPLR 327, on the grounds of forum non conveniens; and (3) for such other and further relief as this Court deems just and proper.
In Motion Sequence # 2, the plaintiff. ABDULLAH SALEH ELFGEEH, cross-moves for an order granting him leave to file and serve an amended complaint naming YAHYA ELFGEEH as a party-defendant.
The two motions are consolidated for disposition.
Background:
The plaintiff Abdullah Elfgeeh commenced this action seeking the imposition of a constructive trust claiming that he and three of his four brothers, all of Yemini descent, are members of a "conjoint'', a creature of Yemeni law' similar to a joint venture or partnership, which he claims owns various properties in Brooklyn, New York. Even though the plaintiff is not listed as an owner on the deeds to the properties, he maintains that as a member of the conjoint, he is entitled to an equitable share of the value of the properties. Plaintiff s three brothers, who he claims are the other members of the conjoint are defendant Nasser Elfgeeh ("Nasser"), defendant Abad Elfgeeh ("Abad"), and non-party Yahya Elfgeeh ("Yahya"). Plaintiff alleges that his remaining brother, Ahmed Elfgeeh, was a former member of the conjoint who withdrew his participation in 1984 after receiving a share of the conjoint's funds. While defendants acknowledge that defendant Abad is one of plaintiffs brothers, the complaint fails to identify him as such. While the complaint alleges defendant "Abdo Elfgeeh" is also one of Plaintiff s brothers, defendants maintain that this is untrue.
The plaintiff did not include Yahya as a defendant in the action. The defendants contend that he is a necessary party to the action and plaintiff s failure to name him as a defendant requires dismissal of the action. While plaintiff is cross-moving to include Yahya as a party defendant, the defendants contend that the granting of the cross-motion w ill not cure the problem since Yahya is not subject to personal jurisdiction in New York. Defendants maintain that Yahya lives in Yemen and does not transact business in New York. Defendants further contend that that even though plaintiff is alleging that Yahya has an interest in the in conjoint, such is not tantamount to an allegation that he" owns, uses or possesses ...real property situated within the state" and is therefore not a basis for long arm jurisdiction under CPLR 302(a)(4) (see, Gen. Prop. Corp, v Diamond, 29 A.D.2d 173, 176 ["the interest of a joint venturer in a venture having to do with realty is not an interest in the realty itself..."]; Felske v. Bernstein, 173 A.D.2d 677, 678, 570 N.Y.S.2d 331, 333 ["defendants' interest in the joint venture would be an interest in personal property, not an interest in the realty"]; see also. General Prop. Corp. v. Diamond. 29 A.D.2d 173, 286 N.Y.S.2d 553; McKernan v. Doniger, 161 A.D.2d 1159, 555 N.Y.S.2d 517; Liffiton v. DiBlasi, 170 A.D.2d 994, 566 N.Y.S.2d 148).
In their moving papers, the defendants point out that plaintiff has already commenced an action in Yemen seeking an accounting of the conjoint's assets as well as a partition of the assets. They maintain that the properties allegedly owned by the conjoint in New York are at issue in the Yemeni action, that all members of the conjoint have already joined issue in Yemini action, and that the action has proceeded to a point where the Yemeni Court has demanded from the plaintiff documentary proof of the establishment of the conjoint and the parties' rights thereunder.
Discussion :
The Court will first address that branch of defendants' motion for an order dismissing the action pursuant to CPLR 327, which embodies the principles of forum non conveniens. Under CPLR 327, "[w]hen the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just." "The doctrine of forum non-conveniens permits a court to stay or dismiss an action when, although it may have jurisdiction over the action, where the court determines that 'in the interest of substantial justice the action should be heard in another forum'" (Koop v. Guskind, 116 A.D.3d 672, 673, 984 N.Y.S.2d 68, quoting CPLR 327[a]).
"On a motion to dismiss the complaint on the ground of forum non conveniens, the defendant bears the burden of demonstrating 'relevant private or public interest factors which militate against accepting the litigation*" (Koop v. Guskind. 116 A.D.3d at 673. 984 N.Y.S.2d 68, quoting Islamic Republic of Iran v. Pahlavi. 62 N.Y.2d 474, 479, 478 N.Y.S.2d 597, 467 N.E.2d 245). In making its determination, the court must weigh, inter alia, "the parties' residences, the location of the witnesses and any hardship caused by the choice of forum, the availability of an alternative forum, the situs of the action, and the burden on the New York court system" (Koop v. Guskind, 116 A.D.3d at 674, 984 N.Y.S.2d 68).
Weighing all the relevant factors, the Court finds that in the interest of substantial justice, this action should be stayed pending resolution of the Yemini action. The parties are currently involved in litigation in Yemini which involves many of the same issues that are presented in this case. Yahya, who is a necessary party to this action, is clearly subject to personal jurisdiction in Yemen whereas it is questionable whether he is subject to personal jurisdiction in New York. Further, litigating the matter in New York would cause great hardship since the Courts in this State have no expertise in Yemini law, which will likely govern the bulk of the issues. In light of this determination, plaintiff s cross motion to amend the complaint to include Yahya as a party defendant is denied.
For the above reasons, it is hereby
ORDERED, that Motion Sequence # 1 is GRANTED solely to the extent that this action is stayed pending the resolution of the Yemini action; it is further
ORDERED that Motion Sequence # 2 is DENIED.
This constitutes the decision and order of the Court.
Note: This signature was generated electronically pursuant to Administrative Order 86/20 dated April 20, 2020