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American Bank Note Corp. v Daniele

Supreme Court of New York, Appellate Division, First Department

February 15, 2011, Decided; February 15, 2011, Entered

3929, 115446/05


 [*501]  [**112]   Order, Supreme Court, New York County (Steven E. Liebman, Special Referee), entered July 1, 2009, which, in an action for breach of fiduciary duty, granted defendants' motion to dismiss the complaint for lack of personal jurisdiction, unanimously affirmed, with costs.

The Special Referee properly dismissed the complaint on the ground that plaintiffs failed to meet their burden of showing the existence of long-arm jurisdiction (CPLR 302 [a]) over defendants, citizens and residents of Argentina (see Stewart v Volkeswagen of Am., 81 NY2d 203, 207, 613 NE2d 518, 597 NYS2d 612  [**113]  [1993]). There is no evidence that any of the allegedly diverted funds were deposited into any bank account in New York in which defendants had an interest. Rather, it appears that the deposits were all made in Argentine branches of New York banks (see generally Kreutter v McFadden Oil Corp., 71 NY2d 460, 467, 522 NE2d 40, 527 NYS2d 195 [1988]; cf. Pramer S.C.A. v Abaplus Intl. Corp., 76 AD3d 89, 96, 907 NYS2d 154 [2010]). Further, the bank records in the record on appeal  [***2] strongly tend to refute that deposits into the accounts in question were the product of a fraudulent scheme.

Finally, there was no error in permitting defendants to testify at the hearing by means of a live video conference link from Argentina. First, the court quashed the subpoena plaintiffs had originally served on defendants and plaintiffs did not challenge this ruling on appeal. Thus, defendants' appearance via video conference was voluntary. Further, plaintiffs fully participated in that hearing.

Pursuant to CPLR 3103 (a), the court may regulate "any disclosure device" in order to "prevent unreasonable annoyance, expense, embarrassment, disadvantage or other prejudice." The decision to allow a party or witness to testify via video conference link is left to a trial court's discretion (People v Wrotten, 14 NY3d 33, 37-38, 923 NE2d 1099, 896 NYS2d 711 [2009] cert denied 560 US ___, 130 S Ct 2520, 177 L Ed 2d 316 [2010]).

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81 A.D.3d 500 *; 916 N.Y.S.2d 112 **; 2011 N.Y. App. Div. LEXIS 1023 ***; 2011 NY Slip Op 1063 ****

 [****1]  American Bank Note Corporation et al., Appellants, v Hernan Daniel Daniele et al., Respondents.

Subsequent History: Costs and fees proceeding at, Motion granted by, in part, Motion denied by, in part, Remanded by American Bank Note Corp. v. Daniele, 2014 N.Y. Misc. LEXIS 60 (N.Y. Sup. Ct., Jan. 7, 2014)

Prior History: American BankNote Corp. v. Daniele, 45 A.D.3d 338, 845 N.Y.S.2d 266, 2007 N.Y. App. Div. LEXIS 11626 (N.Y. App. Div. 1st Dep't, 2007)


videoconference, deposits, defendants', appearance