The following papers numbered 1 to 6 were read on this motion:

The remaining defendants, Mehmet Melih Sipahioglu and Gungor Sipahioglu (the [*2]"individual defendants"), bring their action seeking to dismiss the complaint in its entirety pursuant to CPLR §§ 327(a), 3211(a)(5), 3211(a)(7), and 3211(a)(8). The Court previously dismissed defendant PepsiCo Inc. ("PepsiCo") from the action. This action involves multiple contract disputes over the syrup used in PepsiCo products, centered in a Turkish-controlled area in the northern part of Cyprus (the "region").

According to the complaint, plaintiff Erkman International Co., Ltd. ("EIC") commenced this action, individually and on behalf of Ektam Kibris Ltd. ("Ektam") "to recover damages caused by a fraudulent scheme designed and carried out by the Sipahioglus and facilitated by PepsiCo" involving the "the Sipahioglus' issuance of fraudulently inflated invoices to Ektam that have bled Ektam of significant profits for at least ten years. The Sipahioglus, who are controlling shareholders in Ektam, set up an offshore shell company that they own and control called Infima Holding, N.V. ('Infima')." Infima, a Netherlands Antilles company, is not a party to this action.

In the complaint, plaintiff alleges that "Ektam is a limited liability company organized under the laws of Northern Cyprus, with its registered offices . . . [in] Nicosia, Northern Cyprus. EIC is a limited liability company organized under the laws of Northern Cyprus, with its registered offices . . . [in] Nicosia, Northern Cyprus. Melih Sipahioglu is an individual and a citizen and resident of Turkey. . . . Gungor Sipahioglu is an individual and a citizen and resident of Turkey." Plaintiff further alleges that "The Court has jurisdiction over the Sipahioglus pursuant to CPLR § 302(a)(1) and 302(a)(2) because they transacted business in New York and committed tortious acts in New York, both individually and through Infima, an entity that they own and control."

The Court begins with the motion to dismiss pursuant to CPLR § 3211(a)(8), for lack of personal jurisdiction. As the Second Department has explained, "The ultimate burden of proving a basis for personal jurisdiction rests with the plaintiff." Econ. Premier Assurance Co. v. Miflex 2 S.p.A., 212 AD3d 775, 776, 182 N.Y.S.3d 189, 190 (2d Dept. 2023). This is not initially a heavy burden because a plaintiff, "in opposition to a motion to dismiss pursuant to CPLR 3211(a)(8), need only make a prima facie showing that the defendants were subject to the personal jurisdiction of the Supreme Court. When opposing a motion to dismiss a complaint pursuant to CPLR 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiffs . . . need only demonstrate that facts 'may exist' to exercise personal jurisdiction over the defendant." Daniel B. Katz & Assocs. Corp. v. Midland Rushmore, LLC, 90 AD3d 977, 978, 937 N.Y.S.2d 236, 238—39 (2d Dept. 2011).

In this case, there is no dispute that the individual defendants are citizens and residents of Turkey, as plaintiff alleges in the complaint. The Court may only exercise personal jurisdiction over a nondomiciliary if they transact any business within the state, as set forth in CPLR § 302(a)(1). It has long been the case that "a nondomiciliary will be deemed to be subject to the jurisdiction of a New York court pursuant to CPLR 302(a)(1) if he or she has engaged in some purposeful activity within the State and there is a substantial relationship between this activity and the plaintiff's cause of action. Purposeful activities are those with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Whitcraft v. Runyon, 123 AD3d 811, 812, 999 N.Y.S.2d 124, 126 (2d Dept. 2014).

A review of the complaint shows that all of the parties, as well as the non-party companies, are located in Europe. The only tie to New York — indeed, the United States — is the [*3]now-dismissed PepsiCo.^[FN1]

As set forth in the complaint, the sum total of the individual defendants' contacts with New York are the following two incidents, both more than a decade ago: in March 2002, a non-compete agreement "was negotiated in-person in New York between the Sipahioglus and PepsiCo's senior officers including Ms. Nooyi and Tim Heaviside (General Counsel of PepsiCo International Europe Region);" and "Between May 2011 and the end of August 2011, the Sipahioglus traveled to New York and participated in several meetings with Ms. Nooyi and other PepsiCo executives at the request of PepsiCo" (emphasis added).

In opposition to this motion, counsel for plaintiff adds the following allegations of New York contacts: (1) that there is a New York "domestic business corporation named EMSA (NY), Inc., ("EMSA"), which is active. Mehmet Melih Sipahioglu is identified as the Chief Executive Officer of EMSA;" (2) that the individual defendants own an insurance policy on a New York property owned by EMSA. Plaintiff states that this insurance application "states that EMSA was formed for 'tax purposes' and 'that the property' . . . 'is a secondary home' for them, 'which they use when they are in New York;'" and (3) that the individual defendants and PepsiCo had a litigation in the Southern District of New York back in 2003-2004.

None of the contacts alleged in counsel's affirmation have anything to do with the litigation at issue. Indeed, the New York corporation and its ownership of an apartment in New York are entirely unrelated to plaintiff and the dispute herein. Nor does a New York litigation (involving a party now dismissed from the action) that occurred literally 20 years ago have any bearing on whether the Court has jurisdiction over the individual defendants in 2024. The Court thus discounts as irrelevant these newly-mentioned tenuous New York contacts.

Having reviewed all of the allegations of the individual defendants' New York contacts, the Court finds that "the defendants did not conduct sufficient purposeful activities in New York, which bore a substantial relationship to the subject matter of this action, so as to avail themselves of the benefits and protections of New York's laws." Daniel B. Katz & Assocs. Corp. v. Midland Rushmore, LLC, 90 AD3d 977, 978, 937 N.Y.S.2d 236, 239 (2d Dept. 2011). See also Shatara v. Ephraim, 137 AD3d 1248, 1249, 29 N.Y.S.3d 406, 408 (2d Dept. 2016) ("Accepting as true the plaintiff's allegations . . . the plaintiff failed to present any evidence that DiGiovanni regularly did or solicited business, or engaged in any persistent course of conduct, or derived substantial revenue from goods used or consumed or services rendered in this State (see CPLR 302[a][3][i]), or derived substantial revenue from interstate or international commerce.").

Indeed, the only acts that plaintiff alleges that the individual defendants engaged in in New York that are even potentially related to this action ^[FN2] occurred in 2002 and 2011. Not only are these events so remote in time that any claims based on them would be time-barred, but "this relationship is too remote and indirect to create an articulable nexus." Am./Int'l 1994 Venture v. Mau, 146 AD3d 40, 58, 42 N.Y.S.3d 188, 202 (2d Dept. 2016). Instead, plaintiff attempts to [*4]bootstrap jurisdiction over the individual defendants by ignoring any distinction between the individual defendants and their companies, and, in effect, conflating any interaction with PepsiCo with wrongdoing against plaintiff. This is insufficient for the Court to maintain jurisdiction over these foreign nationals, who have not, at least in the last decade (plus), conducted "sufficient purposeful activities in New York which bore a substantial relationship to the subject matter of this action so as to avail themselves of the benefits and protections of New York's laws. Therefore, the defendants did not transact business in this State and were not subject to the long arm"jurisdiction provision of CPLR 302(a)(1)." Jacobs v. 201 Stephenson Corp., 138 AD3d 693, 694, 30 N.Y.S.3d 134, 136 (2d Dept. 2016).

Accordingly, the Court finds that it does not have jurisdiction over the individual defendants, and grants the motion to dismiss them from the action. Because the Court lacks personal jurisdiction, it need not examine the other bases for dismissing this action, such as forum non conveniens. The Court takes no position on whether plaintiff has valid claims against defendants that it may assert in the region or another European forum.

As all of the defendants have been dismissed from the action, the complaint is dismissed in its entirety.

The foregoing constitutes the decision and order of the Court.