Opinion
9545 Index 657398/17
06-06-2019
BORDEN LP, Plaintiff, v. TPG SIXTH STREET PARTNERS, et al., Defendants. TPG Sixth Street Partners, LLC, et al., Third–Party Plaintiffs–Appellants, v. Michael Borden, et al., Third–Party Defendants–Respondents, Smudge Monster, LLC, Third–Party Defendant.
Clarick Gueron Reisbaum LLP, New York (Gregory A. Clarick of counsel), for appellants. Eisner, LLP, New York (Simon Miller of counsel), for respondents.
Clarick Gueron Reisbaum LLP, New York (Gregory A. Clarick of counsel), for appellants.
Eisner, LLP, New York (Simon Miller of counsel), for respondents.
Sweeny, J.P., Gische, Webber, Oing, Moulton, JJ.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered January 3, 2019, which, to the extent appealed from, granted third-party defendants Michael Borden's and PRS1000, LLC's motions to dismiss the third-party complaint as against them, unanimously reversed, on the law, with costs, and the motion denied.
The third-party complaint alleges facts sufficient to support a finding that third-party defendants Michael Borden and PRS1000 had a sufficiently close relationship with the signatories of the subject agreement to confer on the court personal jurisdiction over them pursuant to the agreement's jurisdiction clause (see Universal Inv. Advisory SA v Bakrie Telecom Pte., Ltd., 154 A.D.3d 171, 179, 62 N.Y.S.3d 1 [1st Dept. 2017] ). In light of the facts alleged, the clause in the agreement stating that no third parties had any rights or obligations under the agreement does not, without more, preclude a finding of "close relationship" (see id. ).
The third-party complaint sufficiently alleges that Michael Borden, plaintiff debtor Borden LP's controlling person and manager, was a beneficiary of the fraudulent conveyance to a sham company (PRS1000) created by him solely for the purpose of depriving third-party plaintiffs of the collateral for their loan (see ABN AMRO Bank, N.V. v. MBIA Inc., 17 N.Y.3d 208, 229, 928 N.Y.S.2d 647, 952 N.E.2d 463 [2011] ).
The third-party complaint sufficiently alleges that Michael Borden, who caused plaintiff debtor to make a sub-market sale of its principal assets to a shell company owned solely by Michael Borden, tortiously interfered with plaintiff's contract with third-party plaintiffs (see Island Two LLC v. Island One, Inc., 2013 WL 5380216, *3, 2013 U.S. Dist LEXIS 138963 [S.D.N.Y. Sept. 26, 2013] ).