United States v. Wiesel

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA,

Plaintiff,

-against- MEMORANDUM AND ORDER

17-CV-2927 (KAM)(CLP)

CHAVA WOLIN, as fiduciary of the estate

of LEO ZIEGEL, ANNETTE WIESEL, and

DORIS GREENBEG,

Defendants.

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MATSUMOTO, United States District Judge:

Plaintiff United States of America, with the authorization

of the Secretary of the Treasury and at the direction of the

Attorney General of the United States of America (“Plaintiff” or

“USA”) commenced this action on May 12, 2017 against Chava Wolin

(“Wolin”) as fiduciary of the Estate of Leo Ziegel (“Ziegel”),

Annette Wiesel (“Wiesel”), and Doris Greenberg (“Greenberg” and,

together with Wiesel and Wolin, “Defendants”) seeking to collect

an outstanding civil monetary penalty assessed against Ziegel,

pursuant to 31 U.S. § 5321(a)(5) as well as a late-payment

penalty, pursuant to 31 U.S.C. § 3717(c)(2) and 31 C.F.R. §

5.5(a), in the amount of $1,849,211.83 plus applicable interest

and accruals (the “FBAR Penalty”). See generally (ECF Nos. 1,

Complaint, “Compl.”; 11, Amended Complaint, “AC”; 31, Second

Amended Complaint, “SAC”; 87, Third Amended Complaint, “TAC”;

and 121, Fourth Amended Complaint, “FAC”.)

Before this Court is Defendant Greenberg’s motion to

dismiss the Fourth Amended Complaint pursuant to Federal Rule of

Civil Procedure 12(b)(2) on the grounds that Plaintiff failed to

allege sufficient facts to demonstrate that Defendant Greenberg

is subject to this Court’s personal jurisdiction. (ECF Nos.

130-4, “Def. Mot.”; 132, “Def. Reply”.) Plaintiff opposes

Defendant Greenberg’s motion to dismiss. (ECF No. 131-15, “Ptf.

Opp.”) For the reasons set forth below, Defendant’s motion to

dismiss the Fourth Amended Complaint is DENIED.

BACKGROUND

I. Factual Background

Leo Ziegel was a United States citizen who passed away in

Queens, New York on April 4, 2014. (FAC ¶¶ 2, 23.) Ziegel is

survived by two daughters, Annette Wiesel and Doris Greenberg.

(FAC ¶¶ 38-39.) Ziegel is also survived by a granddaughter,

Chava Wolin, who was named as fiduciary to Ziegel’s estate by a

Queens County Surrogate Court on January 2, 2018. (FAC ¶¶ 3,

40.)

A. The Assadah Account

Prior to his death, Ziegel established a Lichtenstein

foundation referred to as Assadah Stiftung (the “Assadah

Foundation”) and a Union Bank of Switzerland (“UBS”) bank

account (the “UBS Account”). (FAC ¶¶ 11-14.) On October 31,

1983, Ziegel created a trust agreement between the Assadah

Foundation and UBS (“the Assadah Trust”), which was connected to

the UBS Account. (FAC ¶ 15.) Between 2002 and 2009, Ziegel is

alleged to have utilized funds from the UBS Account, earned

interest and dividend proceeds from the UBS Account, held

discussions with multiple UBS employees regarding investments

and withdrawals of assets in the UBS Account, and was identified

as the beneficial owner of both the UBS Account and the Assadah

Trust. (FAC ¶¶ 17-20.)

Nevertheless, Ziegel failed to report any income or loss

from the Assadah Trust and UBS Account to the United States

Internal Revenue Service (“IRS”), including in Ziegel’s 2008

Federal Income Tax Return, as required by 31 U.S.C. § 5314 and

31 C.F.R. § 103.27(c).1 (FAC ¶ 21-22, 28.) Plaintiff alleges

that Ziegel’s failure to file an FBAR was willful, including

because Ziegel signed his 2008 Federal Income Tax return under

penalty of perjury. (FAC ¶ 22, 24-28.) Plaintiff further

alleges that as of June 20, 2009, the balance of the UBS Account

was $2,870,469.00. (FAC ¶ 29.)

1 The IRS report required by 31 U.S.C. § 5314 is referred to as the Report of

Foreign Bank and Financial Accounts (“FBAR”). 31 C.F.R. § 103.27(c) dictates

that “[r]eports required to be filed by § 103.24 shall be filed with the

Commissioner of Internal Revenue on or before June 30 of each calendar year

with respect to foreign financial accounts exceeding $10,000 maintained

during the previous calendar year.”

B. Ziegel’s Death and Insolvency

Upon Ziegel’s death in Queens, New York on April 4, 2014,

his interest in the Assadah Trust transferred to his daughters

and co-beneficiaries, Wiesel and Greenberg, in equal shares.

(FAC ¶¶ 41-42.)

On or about November 2019, a one-third share of the

interest in the Assadah Trust was transferred to Uri Shamir, the

father of Ziegel’s granddaughter, Chavan Wolin (the “2019

Transfer”). (FAC ¶ 43.) Upon Shamir’s death, Shamir’s one-

third interest in the Assadah Trust transferred to his daughter

and Ziegel’s granddaughter, Wolin. (Id.) As a result of the

2019 Transfer, Ziegel’s prior interest in the Assadah Trust was

divided in equal thirds among Wiesel, Greenberg, and Wolin.

(FAC ¶ 46.)

According to Plaintiff, the transfer of Ziegel’s interest

in the Assadah Trust and UBS Account, which was triggered by

Ziegel’s death in New York, rendered Ziegel’s estate insolvent.

(FAC ¶ 46.) This transfer, as well as the 2019 Transfer, is

alleged to have been effectuated without a reasonably equivalent

value offered in exchange. (FAC ¶ 44.)

C. IRS Civil Penalty

On May 15, 2015, approximately one year after Ziegel’s

death, a delegate of the Secretary of the United States Treasury

sent notice of the IRS’s assessment of a civil monetary penalty

and a demand for payment to Ziegel in connection with Ziegel’s

failure to file an FBAR with respect to the Assadah Trust and

UBS Account in the 2008 calendar year. (FAC ¶ 30-31.)

Plaintiff alleges that Ziegel was liable for a civil

monetary penalty in the amount of $1,435,235.00 because of

Ziegel’s willful failure to disclose the Assadah Trust and UBS

Account to the IRS pursuant to 31 U.S.C. § 5321(a)(5)(C)(i) as

well as a late-payment penalty in the amount of $354,837.28 and

interest in the amount of $59,139.55. (FAC ¶¶ 30-32.) In

total, the USA alleges that the estate of Ziegel is liable for

$1,849,211.83. (FAC ¶ 34.)

Plaintiff asserts that because its claim against Ziegel and

his estate arises out of Ziegel’s failure to make the required

FBAR filing in connection with his 2008 federal income tax

return in violation of 31 U.S.C. § 5314(a), the transfer of

Ziegel’s interest in the Assadah Trust and UBS Account to Weisel

and Greenberg, which rendered Ziegel’s estate insolvent, and the

follow up 2019 Transfer, are both constructively fraudulent and,

therefore, voidable by Plaintiff. (FAC ¶¶ 44-47.) Plaintiff

further alleges that Wiesel and Greenberg both had “actual or

constructive knowledge of the FBAR Penalty” and that “the United

States had a reasonable expectation of payment from [] Ziegel’s

failure to file his 2008 FBAR.” (FAC ¶ 56.) Allegedly, as

recipients and beneficiaries of a fraudulent conveyance,

Defendants Wiesel, Greenberg, and Wolin are, therefore,

individually liable to Plaintiff in the amount of the lesser of

the value of Ziegel’s interest in the Assadah Trust and UBS

Account or the amount of the FBAR Penalty. (FAC ¶¶ 47, 51.)

D. Defendant Greenberg’s Contacts in New York

As noted previously, Defendants Wiesel and Greenberg are

both daughters of Ziegel and Defendant Wolin is Ziegel’s

granddaughter. (FAC ¶¶ 38-39.) Although Defendant Wiesel still

lives in New York (FAC ¶ 6), Plaintiff acknowledges that

throughout the relevant time period, Defendant Greenberg has

lived in Israel. (FAC ¶ 7.) Nevertheless, Plaintiff asserts

that Defendant Greenberg maintains sufficient contacts with the

State of New York to be subject to personal jurisdiction. (Id.)

Plaintiff first contends that Defendant Greenberg is a U.S.

citizen and exercises the many benefits and privileges of U.S.

citizenship, including by voting in the last two presidential

elections. (Id.) Plaintiff further contends that Defendant

Greenberg maintains an active New York voter registration in

connection to which she listed a Queens, New York address as her

residence. (Id.) Plaintiff also alleges that Defendant

Greenberg filed federal income tax returns and New York state

tax returns for each year during the 2015 – 2019 period. (Id.)

Defendant Greenberg is alleged to have made nine visits to the

state of New York between January 1, 2014 and December 31, 2019,

some of which lasted several months. (Id.) Plaintiff asserts

that Defendant Greenberg is the co-owner of residential real

property in Queens, New York, that was previously owned by her

deceased father, Ziegel, and in connection to which she

commenced and is engaged in two lawsuits in New York state

courts in Queens County.2 (Id.) Defendant Greenberg also

commenced four additional lawsuits in New York state court,

Kings County, which relate to disputes with Defendant Wiesel

regarding real properties and business entities previously owned

by Ziegel and Ziegel’s estate generally, in which Defendant

Greenberg claims an interest. Defendant Greenberg commenced a

Queens County Surrogate Court proceeding relating to Ziegel’s

estate wherein Defendant Greenberg moved to compel production of

Ziegel’s last will and testament and petitioned for letters

testamentary in a probate proceeding involving Ziegel’s estate.

(Id.) Finally, Plaintiff alleges that Defendant Greenberg is

the sole or partial owner of eight personal bank accounts at

2 The real property located at 135-41 78th Drive, Flushing, New York 11267 (the

“Queens Property”) is co-owned by Defendants Greenberg and Wiesel and was

originally owned by Ziegel. (ECF No. 131-3, Ptf. Opp. Ex. C, “N.Y. Sup. Ct.

Queens Cnty. 712033-2015 Compl.” ¶ 7.) In 2006, Ziegel executed a “Life

Estate Deed” designating his daughters, Defendants Greenberg and Wiesel, as

the beneficiaries of the ownership interest in the Queens Property, in equal

shares. (N.Y. Sup. Ct. Queens Cnty. 712033-2015 Compl. ¶ 8.) Upon Ziegel’s

death in 2014, the ownership interest in the Queens Property transferred to

Defendants Greenberg and Wiesel and has since been the subject of multiple

lawsuits, including at least two in Queens County, which were commenced by

Greenberg against Wiesel in New York Supreme Court. See e.g., (ECF No. 131-

2, Ptf. Opp. Ex. B, “N.Y. Sup. Ct. Queens Cnty. 705219-2018 Compl.”; N.Y.

Sup. Ct. Queens Cnty. 712033-2015 Compl.)

HSBC in New York and that Greenberg has an ownership interest in

at least two New York limited liability companies. (Id.)

II. Procedural History

Plaintiff’s original Complaint was filed on May 17, 2017

before Judge Roslynn Mauskopf and named Annette Wiesel, as

executrix of the estate of Leo Ziegel, as the sole Defendant.

(Compl.) On June 26, 2017, Wiesel’s attorney notified Plaintiff

that Wiesel had declined to serve as executrix. (ECF No. 6.)

Plaintiff subsequently learned that Ziegel’s granddaughter,

Wolin, was petitioning the Surrogate Court in Queens County to

be appointed as fiduciary to the estate of Leo Ziegel. (ECF No.

6.) Once that petition was granted on January 30, 2018,

Plaintiff filed an Amended Complaint, which replaced Wiesel with

Wolin, as fiduciary of the estate of Leo Ziegel, and as the sole

Defendant. (AC.) Upon consent of Defendant Wolin, Plaintiff

filed a Second Amended Complaint on July 5, 2019, and named

Wolin, as fiduciary of the estate of Leo Ziegel as a Defendant,

as well as both of Ziegel’s daughters, Defendants Greenberg and

Wiesel. (SAC.)

On February 7, 2020, Defendant Wiesel filed a fully briefed

motion to dismiss the Second Amended Complaint for failure to

state a claim pursuant to Fed. R. Civ. P. 12(b)(6). In her

motion to dismiss the SAC, Wiesel first argued that because the

FBAR Penalty was penal in nature, rather than remedial, the FBAR

Penalty should be dismissed because it does not survive the

death of the party on whom the penalty was imposed. (ECF No.

65, “Sep. 28, 2020 M&O” at 5.) The Court rejected Wiesel’s

argument, agreeing with courts that have held that “the FBAR

penalty is ‘primarily remedial with incidental penal effects,’

and [therefore,] survived the taxpayer’s death.” (Sep. 28, 2020

M&O at 11) (citing U.S. v. Green, 457 F. Supp. 3d 1262, 1272

(S.D. Fla. 2020)).

Second, Wiesel argued that the FBAR Penalty was untimely

“under 31 U.S.C. § 5321(b)(2), which requires an action to be

commenced within two years of the date [on which] the FBAR

[P]enalty was assessed.” (Sep. 28, 2020 M&O at 5.) The Court

found that Plaintiff initiated the instant case on May 12, 2017,

three days in advance of the two-year deadline. The Court

explained that because the May 12, 2017 original Complaint

provided constructive notice to the estate of Leo Ziegel, the

fact that Defendants may not have received actual notice in

their individual capacities until months later did not warrant

dismissal. Accordingly, the Court ruled that Plaintiff’s first

cause of action to recover the FBAR Penalty was timely. (Sep.

28, 2020 M&O at 11-13.)

Wiesel’s third argument for dismissal centered on her

assertion that a fraudulent conveyance required “a volitional

act on the part of the conveyor or recipient(s)” such that the

death of a person cannot constitute a fraudulent transfer or

conveyance under federal or state law. (Sep. 28, 2020 M&O at

6.) The Court noted that “[d]espite Wiesel’s insistence that

fraudulent conveyance requires ‘action’ on the part of the

conveyor or recipients to distribute assets, New York law is

clear that both fraudulent transfer and fraudulent conveyance

can occur upon death.” (Sep. 28, 2020 M&O at 15.) The Court

further held that under federal law, “Ziegel’s interests in

[the] Assadah [Trust] and the [UBS] Account were involuntarily

transferred to the Daughters, as contingent co-beneficiaries,

upon Ziegel’s death . . . [and that] [t]his transfer of []

assets fits squarely within” the definition of 28 U.S.C. §§

3301(6), 3304(a). (Sep. 28, 2020 M&O at 14-15.)

As a corollary to her third argument, Wiesel argued that

because the Second Amended Complaint did not allege that

Defendants ever received a distribution from the Assadah Trust

or UBS Account, Plaintiff failed to state a claim for unjust

enrichment under New York law. (Sep. 28, 2020 M&O at 6.) The

Court rejected this argument as well, pointing to case law that

clearly establishes a claim for unjust enrichment may allege

“that one party has parted with money or a benefit that has been

received by another at the expense of the first party.” (Sep.

28, 2020 M&O at 16-17). Because the Second Amended Complaint

adequately alleged “that Wiesel and Greenberg did receive

‘something of value’ – Ziegel’s beneficial interest in the

Assadah [T]rust . . . the United States has stated a claim for

unjust enrichment.” (Sep. 28, 2020 M&O at 17) (internal

citation omitted).

Accordingly, Wiesel’s motion to dismiss was denied in its

entirety by Judge Mauskopf on September 28, 2020. (Sep. 28,

2020 M&O.) On October 29, 2020, Wiesel filed a notice of appeal

with respect to Judge Mauskopf’s Memorandum and Order denying

Wiesel’s motion to dismiss, but subsequently withdrew the appeal

on December 14, 2020. Two weeks later, Defendant Greenberg

filed a motion to dismiss for lack of personal jurisdiction

pursuant to Fed. R. Civ. P. 12(b)(2). (ECF No. 73.)

On July 6, 2021, this case was reassigned to the

undersigned and the parties advised the Court of their intention

to proceed to mediation. Defendant Greenberg withdrew her

motion to dismiss pending the resolution of the mediation and

pending jurisdictional discovery. On September 21, 2021, the

parties filed a report indicating that the mediation did not

result in a settlement. On February 2, 2022, Plaintiff filed a

Third Amended Complaint. In light of additional facts gleaned

from jurisdictional discovery however, the Court granted

Plaintiff leave to file a Fourth Amended Complaint, which was

filed on May 12, 2023. On August 23, 2023, Defendant Greenberg

renewed her motion to dismiss for lack of personal jurisdiction

pursuant to Fed. R. Civ. P. 12(b)(2). (ECF No. 130.)

LEGAL STANDARD

I. Standard of Review

In the first instance, “plaintiff bears the burden of

demonstrating [that the court has] personal jurisdiction over a

person or entity against whom it seeks to bring suit.” Penguin

Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 34 (2d Cir. 2010).

When considering a motion to dismiss for lack of personal

jurisdiction, the Court must construe the pleadings and

affidavits in the light most favorable to Plaintiff, and doubts

must be resolved in Plaintiff’s favor, notwithstanding a

controverting presentation by the moving party. See A.I. Trade

Fin., Inc. v. Petra Bank, 989 F.2d 76, 79–80 (2d Cir. 1993).

Although the Court “will not draw ‘argumentative inferences’ in

the plaintiff’s favor,” the Court must “construe jurisdictional

allegations liberally and take as true uncontroverted factual

allegations.” Robinson v. Overseas Mil. Sales Corp., 21 F.3d

502, 507 (2d Cir. 1994) (internal citation omitted).

Nevertheless, the Court is “not bound to accept as true a legal

conclusion couched as a factual allegation,” nor can a Plaintiff

overcome a motion to dismiss for lack of personal jurisdiction

based on “conclusory non-fact-specific jurisdictional

allegations.” Jazini v. Nissan Motor Co., 148 F.3d 181, 185 (2d

Cir. 1998).

In resolving a motion to dismiss for lack of personal

jurisdiction, “a district court [has considerable] procedural

leeway . . . [to] determine the motion on the basis of

affidavits alone;” to “grant discovery;” or to “conduct a

preliminary [evidentiary] hearing on the merits” of the motion.

Visual Sciences, Inc. v. Integrated Communications Inc., 660

F.3d 56, 58 (2d Cir. 1981). In the absence of “a full-blown

evidentiary hearing, . . . plaintiff need [only] make [] a prima

facie showing of jurisdiction through its own affidavits and

supporting materials.” Marine Midland Bank N.A. v. Miller, 664

F.2d 889, 904 (2d Cir. 1981). At the motion to dismiss stage,

Plaintiff’s prima facie showing must include “an averment of

facts that, if credited [by the trier of fact], would suffice to

establish jurisdiction over the defendant.” In re Magnetic

Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir. 2003).

The Court may also consider materials outside the pleadings,

“including any affidavits submitted by the parties[.]” LaRoss

Partners, LLC v. Contact 911 Inc., 874 F. Supp. 2d 147, 152

(E.D.N.Y. 2012).

In the instant case, the parties have conducted

jurisdictional discovery regarding Defendant Greenberg’s

contacts with the State of New York, but no evidentiary hearing

has been held because no party has requested one. See (Apr. 28,

2023 Pre-Motion Conference Minute Entry) (“Given additional

facts gleaned from jurisdictional discovery, the Court grants

leave to [Plaintiff to] file a Fourth Amended Complaint”).

Accordingly, “[plaintiff’s] prima facie showing, [of what is]

necessary to defeat a jurisdiction testing motion, must include

an averment of facts that, if credited by the ultimate trier of

fact, would suffice to establish jurisdiction over the

defendant” and the Court shall consider relevant materials

included as exhibits to the parties’ pleadings. Chloe v. Queen

Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir. 2010)

(cleaned up).

II. Personal Jurisdiction

A district court may only hear a case involving parties

over which it has personal jurisdiction. There are two forms of

personal jurisdiction, general and specific. Sonera Holding

B.V. v. Cukurova Holding A.S., 750 F.3d 221, 225 (2d Cir. 2014).

“General [or] all-purpose jurisdiction permits a court to hear

‘any and all claims’ against an [individual or] entity.” Gucci

America, Inc. v. Weixing Li, 768 F.3d 122, 134 (2d Cir. 2014).

“Specific jurisdiction, on the other hand, permits adjudicatory

authority only over issues that arise out of or relate to the

[individual’s] or entity’s contacts with the forum.” American

Integrated Security Group, Inc. v. Terra Sound Technology LLC,

No. 22-cv-2773 (AMD), 2023 WL 6308014, at *3 (E.D.N.Y. Sep. 28,

2023).

“The lawful exercise of personal jurisdiction by a federal

court requires satisfaction of three primary requirements.”

Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50,

59 (2d Cir. 2012). First, “plaintiff’s service of process upon

the defendant must have been procedurally proper[.]” Schwab

Short-Term Bond Market Fund v. Lloyds Banking Group PLC, 22

F.4th 103, 121 (2d Cir. 2021).

“Second, there must be a statutory basis for personal

jurisdiction.” Esso Exploration and Production Nigeria Limited

v. Nigerian National Petroleum Corporation, 40 F.4th 56, 69 (2d

Cir. 2022). “In litigation arising under federal statutes that

do not contain their own jurisdictional provisions,” such as 31

U.S.C. § 5321 and 22 U.S.C. § 3304, the statutory basis for a

federal district court’s exercise of personal jurisdiction is

determined by the rules of the “state in which the court is

located.” Spiegel v. Schulmann, 604 F.3d 72, 76 (2d Cir. 2010).

For the purposes of the instant motion to dismiss, the

jurisdictional rules of the forum state are encapsulated in “the

various subsections of New York’s Civil Practice [Law] and

Rules.” Penachio v. Benedict, 461 F. App’x 4, 5 (2d Cir. 2012).

Third, “the exercise of personal jurisdiction must comport

with constitutional due process principles.” Waldman v.

Palestine Liberation Organization, 835 F.3d 317, 327 (2d Cir.

2016). In the instant case, “because the plaintiffs’ assertion

of personal jurisdiction rests upon a state long-arm statute,

the relevant constitutional constraints are those imposed by the

Due Process Clause of the Fourteenth Amendment.” In re Dental

Supplies Antitrust Litigation, No. 16-cv-696 (BMC), 2017 WL

4217115, at *4 (E.D.N.Y. Sep. 20, 2017) (quoting Licci, 673 F.3d

at 60).

A. General Jurisdiction

As set forth previously, the second prong of the personal

jurisdictional analysis relates to the statutory basis for

personal jurisdiction. “Federal district courts sitting in New

York must . . . [determine] [] whether there is jurisdiction

under New York law[.]” Thackurdeen v. Duke University, 660 F.

App’x 43, 45 (2d Cir. 2016) (citing Grand River Enters. Six

Nations, Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir. 2005)).

New York’s rule of general personal jurisdiction authorizes

New York Courts to “exercise [general] jurisdiction over

persons,” N.Y. C.P.L.R. § 301, whose “affiliations with the

State [of New York] are so ‘continuous and systematic’ as to

render them essentially at home in” New York. Goodyear Dunlop

Tires Operations S.A. v. Brown, 564 U.S. 915, 919 (2011).

General personal jurisdiction may be exercised over non-

domiciliary Defendants, but as the United States Supreme Court’s

decision in Goodyear makes clear, “the paradigm forum for the

exercise of general jurisdiction [over an individual] is the

individual’s domicile[.]” 564 U.S. at 924; see also Daimler AAG

v. Bauman, 571 U.S. 117, 137 (2014)) (“only a limited set of

affiliations with a forum will render a defendant amenable to

all-purpose jurisdiction there.”).

B. Specific Jurisdiction

By contrast, the statutory basis for specific personal

jurisdiction is codified by New York’s long-arm statute, N.Y.

C.P.L.R. § 302, which states, in relevant part, that a person

who “commits a tortious act” outside of New York State “causing

injury to a person or property within the state” is subject to

the personal jurisdiction of New York courts “if [s]he (i)

regularly does or solicits business, or engages in any other

persistent course of conduct . . . within the state.” N.Y.

C.P.L.R. § 302(a)(3)(i).

C. Due Process

Once a court has determined that jurisdiction under the

state’s general jurisdiction statute, N.Y. C.P.L.R. § 301, or

“under [the] state’s long-arm statute [N.Y. C.P.L.R. § 302] is

permissible as a matter of state law, ‘the court [] must [then]

decide whether such exercise comports with the requisites of due

process.’” Fort Knox Music Inc. v. Baptiste, 203 F.3d 193, 196

(2d Cir. 2000). “The Due Process Clause permits personal

jurisdiction over a defendant in any State with which the

defendant has certain minimum contact[s],” which are evaluated

based on “the relationship [between] the defendant, the forum,

and the litigation” and where “maintenance of the suit” is

reasonable insofar as it does not “offend traditional notions of

fair play and substantial justice.” Calder v. Jones, 465 U.S.

783, 783 (1984) (internal quotation marks and citation omitted).

With respect to the “minimum contact[s]” inquiry, because

the “‘continuous and systematic’ test of [N.Y. C.P.L.R. § 301]

is not as broad as the ‘minimum contacts’ test of the due

process clause, the exercise of jurisdiction over a foreign

defendant under [N.Y. C.P.L.R. § 301] ordinarily comports with

due process[.]” M'Baye v. World Boxing Ass’n, 429 F. Supp. 2d

652, 658 (S.D.N.Y. 2006). Specific jurisdiction, by contrast,

only comports with due process if the Defendant “avails

[herself] of the benefits of the forum, has sufficient minimum

contacts with it, and should reasonably expect to defend [her]

actions there . . . even if [the defendant is] not present in

that State.” Moneygram Payment Systems, Inc. v. Consorcio

Oriental, S.A., No. 05-cv-10773 (RMB), 2007 WL 1489806, at *6

(S.D.N.Y. May 21, 2007).

The Court’s evaluation of reasonableness under the Due

Process clause focuses on the following five factors: “(1) the

burden that the exercise of jurisdiction will impose on the

defendant; (2) the interests of the forum state in adjudicating

the case; (3) the plaintiff’s interest in obtaining convenient

and effective relief; (4) the interstate judicial system’s

interest in obtaining the most efficient resolution of the

controversy; and (5) the shared interest of the states in

furthering substantive social policies.” Metropolitan Life Ins.

Co. v. Robertson-Ceco Corp., 84 F.3d 560, 568 (2d Cir. 1996)

(citing Asahi Metal Indus. Co., Ltd. v. Superior Ct. of Cal.,

Solano Cnty., 480 U.S. 102, 113 (1987)).

Typically, however, once a court determines that the

threshold inquiry of personal jurisdiction has been satisfied, a

Defendant may only overcome the exercise of personal

jurisdiction by presenting “a compelling case that the presence

of some other considerations would render jurisdiction

unreasonable[.]” Burger King Corp. v. Rudzewicz, 471 U.S. 462,

478 (1985). Even then, “[m]ost such considerations usually may

be accommodated through [other] means short of a finding [that]

jurisdiction [is] unconstitutional.” Id.

DISCUSSION

As set forth previously, the lawful exercise of personal

jurisdiction by a federal court requires (1) procedurally proper

service of process, (2) a statutory basis for either general or

specific personal jurisdiction, and (3) adherence to the

principles of due process. See Licci, 673 F.3d at 59-60. The

parties do not dispute that Defendant Greenberg has been

properly served. See (Def. Mot. at 6) (“On May 12, 2023[,] a

Fourth Amended Complaint was served”); (Ptf. Opp. at 5-6)

(“Greenberg was served . . . via the Hague Convention on . . .

May 12, 2023.”).

Defendant Greenberg’s objection relates to Plaintiff’s

assertion that a statutory basis for both general and specific

personal jurisdiction authorizes this Court to adjudicate

Plaintiff’s suit against her. (Def. Mot. at 12-21.) Defendant

Greenberg also asserts that any exercise of personal

jurisdiction by this Court would fail to comport with the

principles of due process. (Id.)

I. N.Y. C.P.L.R. 301 General Jurisdiction

“[A]n individual’s domicile in New York has become

something of a sine qua non for exercising all-purpose

jurisdiction[.]” Lebron v. Encarnacion, 253 F. Supp. 3d 513,

519 (E.D.N.Y. 2017). If an individual defendant is not

domiciled in New York, general jurisdiction can only be

exercised in “truly ‘exceptional’ circumstances.” Reich v.

Lopez, 38 F. Supp. 3d 436, 455 (S.D.N.Y. 2014) (internal

citation omitted). This is because an individual’s home is

typically a unique and singular place that is easily

ascertainable. See Reich, 38 F. Supp. 3d at 457 (“a state which

properly claims general jurisdiction over an individual is

typically singular”). Courts examining general jurisdiction

conduct “an appraisal of [the individual’s] activities in their

entirety, nationwide and worldwide,” Lebron, 253 F. Supp. 3d at

520, to identify whether the individual defendant engages in

sufficiently “continuous, permanent, and substantial activity in

New York” such that they may be considered “at home” in New

York. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 95 (2d

Cir. 2000).

For the reasons set forth below, Plaintiff has not asserted

sufficient facts for a prima facie showing that Defendant

Greenberg’s contacts with the State of New York are so extensive

as to comprise one of “only [] truly exceptional occasions that

general jurisdiction may extend over individuals who are at home

in a state that is not otherwise their domicile.” Lebron, 253

F. Supp. 3d at 519.

First, it is undisputed that Defendant Greenberg is not

“domiciled” in New York.3 Plaintiff nevertheless asserts that

general jurisdiction is proper because Defendant Greenberg can

3 “Residence and domicile are not interchangeable . . . while a person

can have but one domicile, [s]he can have more than one residence.” Reich v.

Lopez, 38 F. Supp. 3d 436, 456 (S.D.N.Y. 2014) (quoting Antone v. Gen. Motors

Corp., Buick Motor Div., 64 N.Y.S 2d 514, (N.Y. 1984)). Although Plaintiff

alleges that Defendant Greenberg owns a residential property in New York,

Plaintiff does not appear to assert that the Queens Property is Defendant

Greenberg’s domicile, or even residence. Plaintiff asserts that Defendant

“Greenberg lives in Israel” (FAC ¶ 7), and does not otherwise allege that

Defendant Greenberg is domiciled in or resides in New York. Accordingly,

based on the facts alleged in the Fourth Amended Complaint, this Court cannot

conclude that Defendant Greenberg is domiciled in New York.

still be “fairly [] regarded as at home” in New York (Ptf. Opp.

at 10) (citing Lebron, 253 F. Supp. 3d at 519), by virtue of the

“multitude of wide-ranging, continuous, and systematic ties” and

extensive contacts that Greenberg maintains with the State of

New York. (Ptf. Opp. at 14.) Specifically, Plaintiff points to

Defendant Greenberg’s co-ownership of the Queens Property with

her sister, Wiesel, and Greenberg’s involvement, including as a

plaintiff and petitioner, in numerous lawsuits and proceedings

in New York state courts relating to the Queens Property and

other assets that once belonged to Greenberg’s father, Ziegel,

as evidence that Greenberg is “at home” in New York. (Ptf. Opp.

at 11.) Plaintiff also points to Defendant Greenberg’s United

States citizenship, her active voting record in the 2016 and

2020 United States presidential elections, her use of a Queens

address to maintain her voter registration in New York, her

federal and New York state tax returns, her ownership interest

in New York corporations, and her maintenance of several New

York bank accounts as additional contacts that are of a

sufficiently “continuous, permanent, and substantial” nature as

to warrant general jurisdiction. (FAC ¶ 7.)

In response, Defendant Greenberg asserts that she is only

“at home” in Israel, where she has lived for the last 40 years.

(Def. Mot. at 14.) Defendant Greenberg further asserts that her

ties to New York are based on familial connections that should

not be interpreted to constitute broad consent to general

jurisdiction in New York. (Id.) In addressing the New York

contacts upon which Plaintiff relies, Defendant Greenberg argues

that the Queens Property, which is not her residence; her use of

the New York court system, which is the only means by which she

can seek legal recourse in connection with Ziegel’s former

assets; and her ownership interest in a limited number of New

York bank accounts and New York corporations do not make her “at

home” in New York. (Def. Mot. at 15.) Defendant Greenberg also

notes that she filed New York and federal tax returns as a

“[n]onresident” and that she listed her residence in Israel as

her home address in each of the relevant tax returns. (Def.

Mot. at 5; ECF No. 131-10, Def. Mot. Ex. J, “2015-2019 Tax

Returns”.) Defendant Greenberg rejects the notion that her

United States citizenship should determine where she may be

considered “at home,” particularly in light of her 40-year

residence in Israel. (Def. Mot. at 16.) Defendant Greenberg

also argues that because U.S. citizens who maintain a foreign

residence are statutorily authorized to vote in federal

elections, her voting record in the 2016 and 2020 elections has

no bearing on whether she is “at home” in New York. (Id.)

Defendant Greenberg’s contacts in the State of New York are

undoubtedly numerous and wide-ranging. Nevertheless, even

accepting the assertions in the Fourth Amended Complaint as

true, Greenberg’s contacts with the State of New York are not so

extensive as to constitute the “truly exceptional occasion[]

that general jurisdiction may extend over [an] individual[] who

[is] ‘at home’ in a state that is not otherwise [her] domicile.”

Lebron, 253 F. Supp. 3d at 519 (citing Sonera, 750 F.3d at 225).

First, Plaintiff points to Greenberg’s U.S. citizenship and

her voting record in the 2016 and 2020 U.S. presidential

elections and her voter registration status in New York as

evidence that Greenberg is at home in New York. (FAC ¶¶ 7a,

7i.) As noted by Defendant Greenberg, U.S. citizens that

maintain foreign residences are statutorily authorized to vote

in United States elections. See 52 U.S.C. § 10502(c) (“No

citizen of the United States who is otherwise qualified to vote

in any election for President and Vice President shall be denied

the right to vote . . . for President and Vice President . . .

because of the failure of such citizen to comply with any

durational residency requirement[.]”). Because Greenberg need

not be a resident of New York to vote in a U.S. presidential

election, Greenberg’s participation in past federal elections

does not establish that she is “at home” in New York.

Similarly, although Greenberg’s New York voter registration

record appears to reflect a Queens, New York address4, her voter

4 Notably, the address reflected on Defendant Greenberg’s voter registration

records appears to match Defendant Wiesel’s home address, not the Queens

Property co-owned by Greenberg and Wiesel. Compare (Greenberg Voter

registration status is designated as “Active Special Federal[.]”

(ECF No. 131-9, Ptf. Mot. Ex. I, “Greenberg Voter

Registration”.) Under New York law, “special federal voters”

are “citizen[s] of the United States now residing outside the

United States whose last domicile in the United States

immediately prior to [their] departure from the United States

was in the state of New York . . . even though such citizen[s]

[do] not now maintain a place of abode or domicile in the state

of New York[.]” N.Y. Elec. Law § 11-200(1). Greenberg’s voter

registration status, therefore, weighs against a finding that

she is “at home” in New York.

Second, Greenberg’s federal and New York tax returns also

weigh against a finding that she can reasonably be regarded as

“at home” in New York. Filing a federal or New York State tax

return, on its own, does not establish a person’s domicile or

home. An individual’s tax filings are only evidence of their

home to the extent those tax filings reflect a home address

within the relevant forum. See Reich, 38 F. Supp. 3d at 456

(“Plaintiffs should allege key indicia, such as that each

Defendant . . . lists on tax returns New York as [her] ‘home

address.’) Indeed, New York Form IT-203, which is utilized by

Registration) (“Address: 138-08 78 Drive, Flushing 11367-1136”) with (N.Y.

Sup. Ct. Queens Cnty. 712033-2015 Compl. ¶ 2) (“Defendant Annette Wiesel . .

. is an individual with a residence address of 138-08 78th Drive, Flushing,

New York, 11367.”) Plaintiff does not allege that Defendant Greenberg has

ever lived in Defendant Wiesel’s Queens home.

Defendant Greenberg, is specifically designated for nonresident

tax filers. Greenberg’s decision to submit Form IT-203 tax

filings during the relevant time period, to self-identify as a

“taxpayer abroad” in her federal tax filings, and to list her

Israeli residence as her “home address” on both her federal and

New York State tax filings not only fail to support Plaintiff’s

assertion regarding the conclusions that Plaintiff seeks to draw

from Greenberg’s tax returns. To the contrary, these actions

weigh in favor of the exact opposite conclusion – that Defendant

Greenberg is not “at home” in New York.

Third, Plaintiff points to Defendant Greenberg’s travel to

New York, including stays that lasted multiple weeks at times,

as evidence of her “continuous and systematic contacts within

the jurisdiction[.]” (FAC ¶ 7) (Greenberg “visit[ed] New York

nine times between January 1, 2014, and December 31, 2019

primarily to visit family”). Courts in this Circuit have deemed

similar travel patterns insufficient to warrant general

jurisdiction. See Lebron, 253 F. Supp. 3d at 520 (“As noted

above, the only New York contacts that the Plaintiff attributes

to the Defendant are his occasional trips to the state. . .

including between 9 and 12 [trips to] New York”); Adam Mesh

Trading Grp., LLC v. Bubba Trading Grp., LLC, No. 16–cv–2645

(CM), 2016 U.S. Dist. LEXIS 82723, at *9–11 (S.D.N.Y. June 17,

2016) (noting that Defendant’s “visit[s] [to] New York on a

monthly basis” were insufficient to establish general

jurisdiction); Landoil Resources Corp. v. Alexander & Alexander

Services, Inc., 918 F.2d 1039, 1045 (2d Cir. 1990) (finding that

Defendant’s “thirteen business trips . . . over a period of

eighteen months” were “insufficient to establish the . . .

presence within the state that New York law requires”).

Even accepting as true that Defendant Greenberg visited New

York nine times over a six-year period and “spen[t] almost 1/3

of her time in New York toward the last 16 months of that

period,” (Ptf. Opp. at 12), Greenberg’s New York travel begs the

question of where she traveled or resided for the vast majority

of the time that she was presumably not in New York between

January 1, 2014 and December 31, 2019. Viewing Greenberg’s

activities as a whole, including her activity outside of New

York “nationwide and worldwide[,]” the Court does not conclude

that Greenberg’s travels to New York establish that she is “at

home” in New York. Daimler, 571 U.S. at 139 n.20.

Fourth, although Plaintiff points to Defendant Greenberg’s

ownership of the Queens Property in support of the assertion

that Greenberg is “at home” in New York, Plaintiff does not

allege that the Queens Property is or can be considered

Defendant Greenberg’s home. See Reich, 38 F. Supp. 3d at 456

(declining to exercise general jurisdiction where “there [was]

no . . . allegation[] indicating that [Defendant’s] residential

property is his home . . . [and because] Plaintiffs [did] not

offer any information regarding the portion of the year in which

[Defendant] lives at that property or any indication as to how

many other residences outside of New York [Defendant] may also

own.”) Indeed, at least two of Defendant Greenberg’s state

court actions seeking partition of the Queens Property strongly

suggest that Defendant Greenberg’s ability to access the Queens

Property is not unlimited. See (ECF No. 131-2, Greenberg v.

Wiesel, N.Y. Sup. Ct., Queens Cnty., No. 705219/2018, Ptf. Opp.

Ex. B ¶¶ 16-17) (“Neither [Greenberg] nor [Wiesel] has resided

in the [New York Property] since they both became 50% tenants in

common [and] . . . [Wiesel] rented out the [New York Property]

without conferring with [Greenberg] . . . or even notifying”

Greenberg.) Accordingly, Defendant Greenberg’s co-ownership of

the Queens Property, which Greenberg asserts, under oath, has

been used by Wiesel to surreptitiously extract and retain rental

income, does not weigh in favor of a finding that Greenberg is

at home in New York.

Fifth, Plaintiff contends that Defendant Greenberg has

“avail[ed] herself of the jurisdiction of New York state courts

to file” several lawsuits in Queens County and Kings County,

including to “compel production of Ziegel’s last will and

testament,” such that general jurisdiction is warranted. (FAC

¶¶ 7e, 7h.) Plaintiff also points to Greenberg’s use of “her

American counsel of record in this case to file six lawsuits” in

New York State courts. (FAC ¶ 7e, Ptf. Opp. at 11.) For the

purpose of asserting general jurisdiction, however, Defendant

Greenberg’s use of New York courts or counsel, even when

combined with other alleged contacts does not rise to the level

of the “‘exceptional’ case . . . where an individual is

subjected to a state’s general jurisdiction irrespective of

where they are domiciled.” Reich, 38 F. Supp. 3d at 457 (noting

that although “Plaintiff [drew] attention to allegations of

Defendants’ . . . previous use of New York courts . . . even

when considered together, [with the other alleged contacts], the

supposed contacts . . . do not establish general jurisdiction

where it is otherwise absent.”)

Finally, Plaintiff points to Defendant Greenberg’s

“ownership interest in two New York limited liability companies”

and Greenberg’s “sole or partial ownership of multiple personal

bank accounts with HSBC Bank in New York” as evidence that she

can fairly be regarded as “at home” in New York. (FAC ¶¶ 7f,

7g.) Although courts have looked to a defendant’s maintenance

of bank accounts in a forum state as one factor in considering

whether a defendant is at home in that state, courts have agreed

that a defendant’s ownership of New York bank accounts is not,

alone, conclusive evidence that defendant is “at home” in New

York. See Arroyo v. Mountain School, 892 N.Y.S.2d 74, 76 (N.Y.

App. Div. 1st Dep’t 2009) (“the fact that Milton has a New York

bank account . . . does not subject it to general

jurisdiction”). Importantly, context matters. See Daniel v.

American Bd. of Emergency Medicine, 988 F. Supp. 127, 223

(W.D.N.Y. 1997) (“the retention of [] firms for legal and

financial services in connection with occasional [activities] is

distinguishable from the retention of [financial services] in

New York on a continuous basis for purposes of finding

jurisdiction pursuant to Section 301.”)

Plaintiff does not allege that Defendant Greenberg’s

ownership of the bank accounts and New York limited liability

companies in question comprise a substantial portion of her

assets or resources or that the bank accounts relate to her

ongoing financial activity in New York. Nor does Plaintiff

proffer evidence that Defendant Greenberg is the primary user of

the jointly held bank accounts. In fact, at various points

during the relevant time period, several of the bank accounts

reflect a relatively low balance and infrequent activity. See

(ECF No. 131-11, Ptf. Opp. Ex. K, “Greenberg HSBC Bank Accounts”

at 16-18) (reflecting an ending balance of $604.02 on January

13, 2015, and $0.00 on October 2, 2018.) Notably, the

statements connected with the bank accounts held solely in

Defendant Greenberg’s name reflect a home address in Israel –

not New York. See e.g. (ECF No. 131-11, Greenberg HSBC Bank

Accounts at 5.) Only the jointly held bank accounts appear to

reflect a New York address. See e.g. (ECF No. 131-11, Greenberg

HSBC Bank Accounts at 14.) Moreover, Plaintiff does not

elaborate on the nature of the limited liability companies in

question, including what interests or purpose these corporations

purport to serve and how these corporations establish that

Defendant Greenberg is allegedly at home in New York. Without

more, the Court is left with insufficient information to assess

the impact of Defendant Greenberg’s limited liability companies.

Although each individual contact upon which Plaintiff

relies fails to support a finding of general jurisdiction, the

Court also considers the alleged contacts as a whole to

determine if the combined effect of Defendant Greenberg’s

contacts is that she may fairly be regarded as at home in New

York. This Court finds that no such conclusion can be drawn.

“[A]n appraisal of [Greenberg’s] activities in their entirety,

nationwide and worldwide,” Lebron, 253 F. Supp. 3d at 520,

strongly suggest that Greenberg is at home in Israel. Contrary

to Plaintiff’s assertion, several of the alleged New York

contacts that Plaintiff points to weigh against the conclusion

that Greenberg is at home in New York. Apart from periodic

travels to New York to visit family and an inheritance dispute

that she commenced in the New York court system, Defendant

Greenberg appears to spend the vast majority of her time outside

of New York. She has made clear in numerous forms of official

documentation that she does not regard New York as her home,

including her tax returns and voter registration status.

Moreover, Plaintiff fails to point to any official documentation

suggesting that Defendant Greenberg is at home in New York, such

as a driver’s license or telephone listing. See e.g., Comunale

v. Gemma, No. 18-cv-12104 (ALC), 2020 WL 635554, at *4 (S.D.N.Y.

Feb. 11, 2020). Even taking the alleged contacts together, they

do not constitute sufficient grounds for general personal

jurisdiction, pursuant to N.Y. C.P.L.R. § 301.

II. N.Y. C.P.L.R. 302(a)(3) Specific Personal Jurisdiction

In the alternative, Plaintiff also contends that this Court

has specific personal jurisdiction over Defendant Greenberg

pursuant to N.Y. C.P.L.R. § 302(a)(3)(i). (Ptf. Opp. at 14.)

“In applying N.Y. C.P.L.R. 302(a)(3)(i), Plaintiff must

establish: (1) whether the allegations of the [FAC] concern a

tortious act; (2) whether the act caused injury within the state

of New York; and (3) whether the defendant engaged in additional

contacts with New York, establishing a ‘persistent course of

conduct’ toward New York.” Croskey v. Medical and Technical

Services, Inc., No. 05-cv-6641 (LMM), 2006 WL 2347816, at *3

(S.D.N.Y. Aug. 10, 2006).

The Fourth Amended Complaint alleges that Defendant

Greenberg, together with the other Defendants, committed a

tortious act outside of New York, by virtue of the fraudulent

conveyance of Ziegel’s Assadah Trust and UBS Account, which

caused injury to a person or property within New York when the

Ziegel estate became insolvent at the time of Ziegel’s death in

New York. (Ptf. Opp. at 7, 15.) Plaintiff further contends

that because Defendant Greenberg has availed herself of New York

courts to “obtain money or property once belonging to Ziegel,”

and because of Greenberg’s other contacts within the state of

New York, Greenberg has engaged in a “persistent course of

conduct” that subjects her to specific personal jurisdiction

under N.Y. C.P.L.R. § 302(a)(3)(i). (Ptf. Opp. at 15.)

Defendant Greenberg argues that Plaintiff “has not

identified . . . any tortious act . . . [that she committed] in

New York or giving rise to injury in New York.” (Def. Mot. at

18.) To the extent any “transfer or conveyance, fraudulent or

otherwise,” is alleged by Plaintiff, Defendant Greenberg

contends that “Plaintiff does not allege that Defendant

Greenberg took any action or played any role.” (Def. Mot. at

18-19) (arguing that the fact that Greenberg and Wiesel “were

identified as contingent co-beneficiaries” to Ziegel’s Assadah

Trust and UBS Account and the fact that Ziegel’s interest in the

Assadah Trust and UBS Account was transferred to his daughters

upon his death does not alone establish that Defendant Greenberg

“received any distribution . . . or has any control” over the

Assadah Trust and UBS Account, nor does it mean any of the

alleged “events took place in New York.”)

A. Tortious Act

First, Plaintiff has made a prima facie showing that the

allegations in the Fourth Amended Complaint concern a tortious

act. Plaintiff’s second and third causes of action allege

fraudulent transfer under 28 U.S.C. § 3304 and N.Y. Debt. &

Cred. Law §§ 273, 278, respectively. Plaintiff contends that

the fraudulent transfer of Ziegel’s assets to Defendants

Greenberg and Wiesel, which is alleged in Counts Two and Three

had the effect of evading the civil monetary penalty for which

Plaintiff seeks judgment in Count One. Count Four is a claim

for unjust enrichment arising out of the allegedly fraudulent

transfer.

It is well established within this Circuit that an

allegation of “fraudulent conveyance is a species of tort[.]”

Universitas Educ., LLC V. Nova Group, Inc., No. 11-cv-1590

(LTS), 2014 WL 3883371, at *6 (S.D.N.Y. Aug. 7, 2014); see also

Bank of Commc’ns v. Ocean Dev. Am. Inc., No. 07-cv-4628 (TPG),

2010 WL 768881 (S.D.N.Y. Mar. 8, 2010); Sunrise Indus. Joint

Venture v. Ditric Optics, Inc., 873 F. Supp. 765, 770 (E.D.N.Y.

1995); Gallager v. Kirschner, 632 N.Y.S.2d 948, 949-50 (N.Y.

App. Div. 3d Dep’t 1995) (Under New York law, “transfers which

render a transferor insolvent are deemed fraudulent if . . .

[they are] made without fair consideration . . . [e]ven where

the transfer occurs by operation of law upon the death of” the

transferor. In such cases, “a creditor may recover the interest

transferred, as a fraudulent transfer” from the transferee).

Defendant Greenberg asserts that “Plaintiff [fails to]

allege [either] that she has ever received any distribution from

Assadah” or that “[she] took any action or played any role in

connection with [the alleged] transfer or conveyance.” (Def.

Mot. at 18.) These assertions mirror the same arguments raised

by her sister and co-Defendant, Wiesel, and which were rejected

by Judge Mauskopf in the thoroughly reasoned Memorandum and

Order denying Defendant Wiesel’s motion to dismiss. See United

States v. Wolin, 489 F. Supp. 21, 31 (E.D.N.Y. 2020) (“Despite

[Defendant’s] insistence that fraudulent conveyance requires

‘action’ on the part of the conveyor or recipients to distribute

assets, New York law is clear that both fraudulent transfer and

fraudulent conveyance can occur upon death.”) Indeed, Greenberg

belabors the same previously rejected arguments based on the

exact case that Defendant Wiesel relied upon in her motion to

dismiss. Judge Mauskopf’s reasoning in rejecting Defendant

Weisel’s misplaced attempt to rely on North Carolina Department

of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust, 139

S.Ct. 2213 (2019) is equally applicable to Defendant Greenberg’s

reliance on the same case to demand the same outcome. Judge

Mauskopf noted:

Wiesel relies on North Carolina Department of Revenue

v. The Kimberley Rice Kaestner 1992 Family Trust, 139

S.Ct. 2213 (2019), in support of her position that a

volitional act to distribute the assets is necessary

for a fraudulent transfer. In that case, the Supreme

Court held that ‘the presence of in-state

beneficiaries alone does not empower a State to tax

trust income that has not been distributed to the

beneficiaries where the beneficiaries have no right to

demand income and are uncertain to ever receive it.’

139 S.Ct. at 2221. However, the Supreme Court

expressly limited this holding to the specific facts

presented, where the beneficiaries ‘had no right to

demand income and were uncertain to receive it.’ Id.

This has no implications for the entirely

distinguishable question of whether the Government, in

attempting to collect an FBAR penalty, should be able

to reach Ziegel’s interest in assets that

automatically transferred to [Greenberg and Weisel] at

the time of his death. Weisel does not present any

evidence suggesting that she and Greenberg ‘have no

right to demand income and are uncertain of ever

receiving it,’ and thus North Carolina Department of

Revenue does not apply.

Sep. 28, 2020 M&O at 14.

Here too, Defendant Greenberg fails to “present any

evidence suggesting that she and [Wiesel] have no right to

demand income and are uncertain of ever receiving it[.]” Sep.

28, 2020 M&O at 14. This Court sees no reason why Defendant

Greenberg’s repetition of previously rejected and identical

arguments and her citation to the same case warrants a different

outcome here. As set forth in the Sep. 28, 2020 M&O, “[t]he

facts regarding what distributions may be demanded by the

Daughters may [] be revisited upon a motion for summary

judgment.” Sep. 28, 2020 M&O at 16 n.2. At the prima facie

stage, however, the Fourth Amended Complaint “state[s] a

plausible claim for fraudulent transfer or conveyance under

federal and state law,” Sep. 28, 2020 M&O at 16, and “fraudulent

conveyance is a species of tort[.]” Nova, 2014 WL 3883371, at

*6. Accordingly, Plaintiff has alleged sufficient facts to

satisfy the first prong of the specific personal jurisdiction

analysis under N.Y. C.P.L.R. § 302(a)(3)(i) at the prima facie

stage.

B. Injury in New York

Second, Plaintiff has made a prima facie showing that the

alleged fraudulent conveyance caused an injury within the State

of New York. Specifically, Plaintiff alleges that because

Ziegel died in New York and became insolvent in New York as a

result of the fraudulent conveyance triggered by his death, the

situs of the injury, for the purposes of this Court’s

jurisdictional analysis, is New York.

Defendant Greenberg argues that the fraudulent conveyance

of Ziegel’s interest in the Assadah Trust and UBS Account was

not alleged to have taken place in New York. (Def. Mot. at 19-

20.) However, the relevant inquiry is not limited to where the

fraudulent conveyance took place. “The Second Circuit has

interpreted the injury requirement in § 302(a)(3) to mean that

the ‘original event which caused the injury’ must have taken

place in New York . . . [and that] [t]his original event is . .

. generally distinguished not only from the initial tort but

from the final economic injury and the felt consequences of the

tort.” Doe v. Delaware State Police, 939 F. Supp. 2d 313, 327

(S.D.N.Y. 2013) (internal citation omitted). “The key question

in this analysis is the timing and location of the initial

injury, as distinct both from the tortious act itself and from

the damages suffered later[.]” Delaware, 939 F. Supp. 2d at

327. Where a “non-physical commercial injury” is alleged, the

“situs of [the] . . . injury for jurisdictional purposes is

where ‘the critical events associated with the dispute took

place.’” Faherty v. Fender, 572 F. Supp. 142, 149 (S.D.N.Y.

1983).

Here, the situs of the injury is New York. The critical

events associated with Plaintiff’s alleged injury are Ziegel’s

death in New York and the subsequent insolvency of the Ziegel’s

estate, which entered probate in a Queens County Surrogate Court

in New York. This insolvency was triggered by the transfer of

Ziegel’s estate assets to Defendants, which in turn caused the

alleged impediment to Plaintiff’s attempt to collect the penalty

against the Zeigel estate. The “original event that caused the

injury” Delaware, 939 F. Supp. 2d at 327, is Ziegel’s death and

the insolvency of his estate, both of which occurred in New

York. The allegedly fraudulent conveyance of estate assets to

Defendants is the initial tort alleged by Plaintiff. The

frustration of Plaintiff’s ability to collect its civil monetary

penalty, by virtue of the aforementioned “original events,” is

the “final economic injury” alleged. Delaware, 939 F. Supp. 2d

at 327. See also Nova, 2014 WL 3883371, at *6 (“Here the situs

of the injury is New York, because the fraudulent conveyance[]

impeded Petitioner’s ability to enforce its New York

judgment[]”); see also Universitas Education, LLC v. Benistar,

No. 20-cv-738 (JAM), 2021 WL 965794, at *14 (D.Conn. Mar. 15,

2021) (agreeing that specific jurisdiction under N.Y. C.P.L.R. §

302(a)(3) was proper where Defendants “fraudulently []

render[ed] the [Plaintiff’s] prospective New York judgment

unrecoverable, despite the fact that the actions may have been

performed” outside of New York)(internal quotation marks and

citation omitted).

Ziegel’s death took place in New York and his estate

entered probate in a Queens County Surrogacy Court in New York.

This is, of course, precisely why Defendant Greenberg is

anchored to and asserted her claims in the New York court system

to vindicate her rights with respect to Zeigel’s estate and

former assets. See (Def. Mot. at 15) (“The partition action had

to take place in New York because the property was located in

New York”); (FAC ¶ 7h) (“on or about December 8, 2015,

[Defendant Greenberg moved] to compel production of Ziegel’s

last will and testament”); (ECF No. 131-13, Ptf. Opp. Ex. M,

Queens County Surrogacy Court Petition for Production of Last

Will and Testament.) Accordingly, Plaintiff has alleged

sufficient facts to establish New York as the situs of the

alleged injury and has satisfied the second prong of the

jurisdictional analysis relating to Defendant Greenberg under

N.Y. C.P.L.R. 302(a)(3)(i) at the prima facie stage.

C. Persistent Course of Conduct

Third, Plaintiff has made a prima facie showing that

Defendant Greenberg engaged in a “persistent course of conduct”

in the State of New York. Although Defendant Greenberg’s New

York contacts, as alleged, are not so extensive as to support a

finding of general jurisdiction under N.Y. C.P.L.R. § 301,

Greenberg’s contacts do rise to the less demanding standard for

a Defendant’s “persistent course of conduct” under N.Y. C.P.L.R.

302(a)(3)(i).

The New York Court of Appeals has repeatedly affirmed that

“clause (i) [of N.Y. C.P.L.R. § 302(a)(3)] does not require the

quantity of New York contacts that is necessary to obtain

general jurisdiction under the . . . test of CPLR 301.”

Ingraham v. Carroll, 90 N.Y.2d 592, 597 (N.Y. 1997). Instead,

N.Y. C.P.L.R. § 302(a)(3)(i) “require[s] something more than [a]

‘one shot’ single business transaction[.]” Id. “[T]he extent

of contacts required” must be “substantial enough to make it

reasonable to subject [the Defendant] to jurisdiction and

feasible for [the Defendant] to defend [suit] here.” Bouchard

v. La Parmigiana S.R.L., No. 15-cv-0865 (LEK), 2016 WL 81496, at

*3 (N.D.N.Y. Jan. 7, 2016) (“302(a)(3)(i) necessitates some

ongoing activity within New York State.”). Moreover, the

“‘persistent course of conduct’ provision may be satisfied by

non-commercial, non-business activities[.]” Ark 301 v. Diocese

of Brooklyn, No. 512965-2020 (SBK), 2023 WL 6781422, at *5 (N.Y.

Sup. Ct. Kings Cnty. Oct. 5, 2023). See e.g., Porcello v.

Brackett, 446 N.Y.S.2d 780, 78 (N.Y. App. Div. 4th Dep’t 1981)

(finding that the “‘persistent course of conduct’ provision may

be broad enough to encompass” the Defendant’s activities in New

York “by virtue of [the Defendant’s] three-semester attendance

at Cornell” even though the Defendant was an out-of-state

student); David Tunick, Inc. v. Kornfeld, 813 F. Supp. 988, 991

(S.D.N.Y. 1993) (finding that the Defendant engaged in a

persistent course of conduct in New York by virtue of

“substantial non-business activities in New York[,]” including

the exhibition of “several of [his] paintings . . . in museums

located in or around New York City.”).

Moreover, the “persistent course of conduct” test under

N.Y. C.P.L.R. § 302(a)(3)(i) does not require a “nexus between

the [alleged] New York state contacts . . . and the cause of

action being sued upon.” Franklin v. Coloplast Corp., No. 18-

cv-1413 (DNH), 2019 WL 5307085, at *7 (N.D.N.Y. Oct. 21, 2019).

Instead, the “persistent course of conduct” requirement is akin

to an “extra ingredient which the statute prescribes in order to

make it reasonable for New York to require the defendant to

answer here for [her] tortious act.” Hearst Corp. v.

Goldberger, No. 96-cv-3620 (PKL)(AJP), 1997 WL 97097, at *15

(S.D.N.Y. Feb. 26, 1997).

Defendant Greenberg’s course of conduct in the State of New

York far exceeds the “‘one shot’ single business transaction.”

Hearst, 1997 WL 97097, at *14 (quoting 1 Weinstein, Korn &

Miller, N.Y. C.P.L.R. ¶ 302.14 (1996)) (internal quotation marks

omitted). Defendant Greenberg initiated multiple New York

lawsuits concerning asset transfers at the Ziegel estate,

triggered by Ziegel’s death, including with respect to the

Queens Property in which she owns a fifty percent stake and from

which she seeks to recover rental income. (FAC ¶ 7.) Defendant

Greenberg also frequently travels to New York, including for

weeks at a time. (FAC ¶ 7.) Defendant Greenberg’s visits to

New York, her ownership of property in New York, and her

litigation in New York relating to her father’s estate, which is

probated in a New York court, taken together, are “regular,

persistent, [and] substantial” courses of conduct in New York

that warrant a finding of specific jurisdiction over Greenberg

under N.Y. C.P.L.R. § 302(a)(3)(i). These contacts represent

allegations of “ongoing activity within New York State” that

satisfy Plaintiff’s burden of demonstrating a “persistent course

of conduct” under N.Y. C.P.L.R. § 302(a)(3)(i) at the prima

facie stage. Ingraham, 90 N.Y.2d at 597.

Moreover, it is reasonable that Defendant Greenberg be

required to answer allegations of tortious conduct in connection

to the same estate regarding which she has repeatedly invoked

the protection and authority of New York courts to recover

estate assets. Defendant Greenberg has filed numerous lawsuits

seeking to collect income from assets previously held by Ziegel

and jointly inherited by the other Ziegel heirs, demanding

accounting of Ziegel’s previously held assets, and moving for

disclosure of Ziegel’s final will and testament. Defendant

Greenberg’s argument that she should be free to seek relief from

New York courts by asserting her rights in connection with

Ziegel’s estate on the one hand, and simultaneously contest any

assertion of personal jurisdiction by a court in New York that

will adjudicate allegations of tortious conduct in connection

with the same estate on the other hand, is untenable.

Accordingly, Plaintiff has alleged sufficient facts to

establish that Defendant Greenberg engaged in a persistent

course of conduct in the state of New York, and has satisfied

the third prong of the jurisdictional analysis under N.Y.

C.P.L.R. § 302(a)(3)(i) at the prima facie stage.

III. Due Process

Finally, the principles of due process are not offended by

the Court’s exercise of specific personal jurisdiction over

Defendant Greenberg pursuant to N.Y. C.P.L.R. § 302(a)(3)(i).

It is axiomatic that “a state court may exercise personal

jurisdiction over a nonresident defendant only so long as there

exist ‘minimum contacts’ between the defendant and the forum

state.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,

291 (1980). Once minimum contacts have been established, the

Court must assess whether “the prospect of defending a suit in

the forum State comport[s] with traditional notions of ‘fair

play and substantial justice.’” LaMarca v. Pak-Mor Mfg. Co.,

713 N.Y.S.2d 304, 309 (N.Y. 2000) (quoting Burger King, 417 U.S.

at 476).

A. Minimum Contacts

“A non-domiciliary tortfeasor has ‘minimum contacts’ with

the forum State - and may thus reasonably foresee the prospect

of defending a suit there - if [she] purposefully avails

[herself] of the privilege of conducting activities within the

forum state.” LaMarca, 713 N.Y.S.2d at 308 (quoting World-Wide

Volkswagen, 444 U.S. at 297). This “constitutional inquiry

‘focuses on the relationship among the defendant, the forum, and

the litigation’” such that jurisdiction may be exercised only

over “defendants who have purposefully ‘reached out beyond’

their State and into another[.]” Williams v. Beemiller, Inc.,

130 N.Y.S.3d 237, 240 (N.Y. 2019) (internal citation omitted).

As previously noted, Defendant Greenberg has availed

herself of the benefits of New York courts to initiate several

lawsuits in connection with her claims to assets in Ziegel’s

estate. Defendant Greenberg has filed at least two lawsuits

against her sister and co-Defendant, Wiesel, in Queens County as

well as four lawsuits against Wiesel in Kings County. (FAC ¶

7.) Each of Defendant Greenberg’s lawsuits relate to the

partition, accounting, or transfer of assets that previously

belonged to Ziegel and in connection to which Ziegel’s estate

entered probate upon his 2014 death in New York. (Id.) In

several of these lawsuits, Defendant Greenberg has alleged that

Wiesel engaged in self-dealing, gross negligence and intentional

misconduct in the time period leading up to Ziegel’s death and

immediately after Ziegel’s death in order to obscure or divert

the distribution of Ziegel’s assets following Ziegel’s death.

See e.g., (ECF Nos. 131-3, Ptf. Opp. Ex. C, N.Y. Sup. Ct. Queens

Cnty. 712033-2015 Compl. ¶¶ 28-29; 131-5, Ptf. Opp. Ex. E, N.Y.

Supp. Ct. Kings Cnty. 514223-2015 Compl. ¶¶ 13-14; 131-6, Ptf.

Opp. Ex. F, N.Y. Supp. Ct. Kings Cnty. 514367-2015 Compl. ¶

17.) In connection with at least one of her lawsuits, Defendant

Greenberg has moved to compel production of Ziegel’s last will

and testament. (FAC ¶ 7; ECF No. 131-13, Ptf. Opp. Ex. M,

Queens County Surrogacy Court Petition for Production of Last

Will and Testament.) Although Defendant Greenberg has not

explicitly named the portion of Ziegel’s estate that is the

subject of Plaintiff’s alleged injury, the Assadah Trust and UBS

Account, Greenberg has made ample use of New York courts to

demand an accounting of Ziegel’s estate generally and to demand

that the initial distribution of assets triggered by Ziegel’s

death comports with the rights afforded to her under New York

law. In the instant case, Plaintiff seeks similar recourse.

Like Defendant Greenberg, Plaintiff has filed claims against the

Defendants based on the assertion that the United States is the

victim of tortious conduct that resulted in Plaintiff’s

inability to recover federal penalties from assets that were

owed from Ziegel’s estate following Ziegel’s death in New York.

As the United States Supreme Court aptly noted, “where [an]

individual[] purposefully derive[s] benefit from their

activities” in the forum state, “the Due Process Clause may not

readily be wielded as a territorial shield to avoid interstate

obligations that have been voluntarily assumed.” Burger King,

471 U.S. at 475.

B. Fair Play and Substantial Justice

The test for determining whether “the prospect of defending

a suit in the forum State comport[s] with traditional notions of

‘fair play and substantial justice,’” which is also referred to

as the reasonability prong of the due process analysis, requires

that a Defendant who has “purposefully [] directed [] activities

at forum residents [] present a compelling case that the

presence of some other consideration would render jurisdiction

unreasonable.” LaMarca, 713 N.Y.S.2d at 309 (quoting Burger

King, 417 U.S. at 477). Defendant Greenberg has not presented

any such case. Nor can the Court conceive of a compelling

reason to rule that Greenberg is excused from defending her

interests in this action.

Moreover, none of the factors outlined in Asahi Metal

Indus. Co. v. Superior Ct. of Cal., 480 U.S. 102 (1987) warrant

a finding that asserting personal jurisdiction over Defendant

Greenberg in this case would be unreasonable. 480 U.S. at 113

(“A court must consider the burden on the defendant, the

interests of the forum State, and the plaintiff's interest in

obtaining relief. It must also weigh in its determination the

interstate judicial system's interest in obtaining the most

efficient resolution of controversies; and the shared interest

of the several States in furthering fundamental substantive

social policies[]”) (internal citation omitted). Defendant

Greenberg is already engaged in several other lawsuits relating

to her father’s estate, all of which she initiated of her own

volition with the assistance of the same counsel that is

defending her in the instant action. This Court sees no reason

why defending this case would present an untenable burden on

Defendant Greenberg. Nor has Defendant Greenberg made any

argument that she would be unreasonably burdened by the prospect

of defending against this case. By contrast, Plaintiff and the

state of New York have a strong interest in resolving any and

all disputes related to or arising out of estates probated in

its Courts. The state of New York also “has an interest in

providing a convenient forum for [a Plaintiff] . . . who was

injured in New York and may be entitled to relief under New York

law.” LaMarca, 713 N.Y.S.2d at 310. Finally, as in LaMarca,

“the interstate judicial system[]” and federal courts have a

strong interest in “efficient [and orderly] resolution of

controversies.” 713 N.Y.S.2d at 310. The exercise of personal

jurisdiction over all Defendants “would be orderly” and lead to

the most efficient outcome “to allow plaintiff to sue all named

defendants in New York” in one lawsuit. Id.

“Fair play involves a set of corresponding rights and

obligations.” LaMarca, 713 N.Y.S.2d at 310. Defendant

Greenberg has called upon multiple New York state courts to

vindicate her rights in connection with the probate of Ziegel’s

estate. Therefore, it is not “at all unfair to render [her]

judicially answerable for [her] actions in this state” as the

claims relate to that same estate. Id. Accordingly, Plaintiff

has alleged sufficient facts to establish that this Court’s

exercise of specific personal jurisdiction over Defendant

Greenberg does not offend the principles of Due Process.

Because the Court finds that Plaintiff has made a prima

facie showing of specific personal jurisdiction under N.Y.

C.P.L.R. § 302(a) (3) (1) that is consistent with the principles

of Due Process, the Court need not address Defendant Greenberg’s

arguments with respect to N.Y. C.P.L.R. § 302(a) (3) (11) or N.Y.

C.P.L.R. § 302 (a) (4).

CONCLUSION

For the reasons set forth above, Defendant Greenberg’s

motion to dismiss the Fourth Amended Complaint pursuant to Fed.

R. Civ. P. 12(b6) (2) for lack of personal jurisdiction is hereby

DENIED. The parties shall confer and advise the Court of how

they intend to proceed within five business days of this

Memorandum and Order.

SO ORDERED.

Dated: February 26, 2024

Brooklyn, New York b “2 YY, _—_—s

□□ et Ltr

mad a. waTsuNoTO

United States District Judge

Eastern District of New York

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