8502-8502A-8502B-8502C. ABDUL HUSSAIN JAFFAR RAHMAT ALLAH AL LAWATI Plaintiffs-res-ap, v. MONTAGUE MORGAN SLADE LTD. def, PETER RIGBY, Defendant-Appellant-res, JST LAWYERS def-res, MONTAGUE MORGAN SLADE LIMITED Nominal Counterclaim def — Morrison Mahoney, LLP, New York (Arthur J. Liederman of counsel), for appellant-res — Schlam Stone & Dolan LLP, New York (Samuel L. Butt of counsel), for respondents-ap — D’Amato & Lynch, LLP, New York (David A. Boyar of counsel), for JST Lawyers, res — Kissel Hirsch & Wilmer LLP, Tarrytown (Frederick J. Wilmer of counsel), for Keith Park Solicitors, res — Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered January 25, 2012, which granted so much of defendant Rigby’s motion to dismiss as sought dismissal of plaintiff’s RICO claims, and denied so much of Rigby’s ‘s motion as sought to dismiss the complaint for lack of personal jurisdiction and forum non conveniens, or, in the alternative, to dismiss the common-law fraud claims; order, same court, Justice, and date of entry, which granted defendant Keith Park Solicitors’ (KPS) motion to dismiss the complaint as against them for lack of personal jurisdiction; order, same court and Justice, entered January 26, 2012, which granted defendant JST Lawyers’ (JST) motion to dismiss the complaint as against them for lack of personal jurisdiction; and order, same court and Justice, entered January 26, 2012, which, to the extent appealed from, denied plaintiffs’ motion for a default judgment against certain corporate defendants, unanimously affirmed, without costs.
The complaint sufficiently alleges jurisdiction over Rigby under CPLR 302(a)(2) insofar as the complaint pleads that Rigby was a part of a conspiracy involving the commission of several overt tortious acts in New York (see Best Cellars Inc. v. Grape Finds at Dupont, Inc., 90 F Supp 2d 431, 446 [SD NY 2000] [for purposes of personal jurisdiction, "(t)he requisite relationship between the defendant and its New York co-conspirators is established by a showing that (a) the defendant had an awareness of the effects in New York of its activity; (b) the activity of the co-conspirators in New York was to the benefit of the out-of-state conspirators; and (c) the co-conspirators acting in New York acted at the direction or under the control, or at the request of or on behalf of the out-of-state defendant" [internal quotation marks omitted]; Cleft of the Rock Found. v. Wilson, 992 F Supp 574, 582-583 [ED NY 1998]). Specifically, the complaint, the allegations of which on a motion to dismiss we must deem to be true (Sokoloff v. Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]; Cron v. Hargro Fabrics, 91 NY2d 362, 366 [1998]), pleads that defendants Montague Morgan Slade LTD (MMS), albeit through a virtual office, predominantly existed in New York and committed the torts underpinning the conspiracy there. The complaint further pleads that Rigby, to further the conspiracy and to dissuade plaintiffs from taking any action against the defendants, communicated with the plaintiffs, telling them that their investments were safe and that redemptions would soon be paid, and reassured plaintiffs that he was in communication with MMS’s New York office. While the complaint alleges that Rigby was acting under the control and at the behest of MMS and the co-conspirators, rather than directing MMS to commit tortious acts in New York, jurisdiction is nonetheless established since the complaint alleges that Rigby was aware of the torts being committed by MMS and other defendants in New York (Dixon v. Mack, 507 F Supp 345, 351-352 [SD NY 1980] [last prong of the test set out in Best Cellars, Inc. (90 F Supp at 46) is satisfied when it is alleged that the out-of-state co-conspirator has knowledge of the tortious acts being perpetrated in New York]). Here, the existence of the virtual office in New York creates sufficient “minimum contacts” with the State such that assertion of jurisdiction over Rigby does not violate “traditional notions of fair play and substantial justice” (International Shoe Co. v. Washington, 326 US 310, 316 [1945] [internal quotation marks omitted]; Banco Nacional Ultramarino v. Chan, 169 Misc 2d 182, 187 [Sup Ct, NY County 1996], affd 240 AD2d 253 [1st Dept 1997]). We also note that insofar as plaintiffs pleaded that Rigby, for purposes of furthering the fraud of his co-conspirators, repeatedly reassured plaintiffs that he was communicating with MMS’s New York office, he “[b]y joining the conspiracy with the knowledge that overt acts in furtherance of the conspiracy had taken place in New York… purposely [availed himself] of the privilege of conducting activities within [New York]” (Cleft of the Rock, 992 F Supp at 585 [second alteration in original] [internal quotation marks omitted]). Accordingly, he should not be surprised or heard to complain about being sued here.
