GREAT LAKES INSURANCE SE v. George Gourdomichalis, in his own capacity and as agent of the Americana Club, Defendant–Appellant. (2024)

Order, Supreme Court, New York County (Melissa A. Crane, J.), entered January 16, 2024, which denied defendant George Gourdomichalis’ motion for summary judgment dismissing the negligence claim against him, unanimously affirmed, with costs.

The court properly found that Gourdomichalis was not entitled to summary judgment dismissing the negligence claim due to lack of personal jurisdiction.  Gourdomichalis’ affirmation, which he submitted to support his claim that the court lacked personal jurisdiction, was inadmissible as it did not contain the language required by CPLR 2106 (see Akhmedova v. Akhmedov, 189 A.D.3d 602, 604, 139 N.Y.S.3d 33 [1st Dept. 2020], lv denied 37 N.Y.3d 911, 2021 WL 4734403 [2021]).  Even if the affirmation was admissible, it was insufficient to establish that the court did not have personal jurisdiction over him.  Nothing in his affirmation contradicts the evidence, which demonstrates that he facilitated the procurement of the vessel's insurance from The American Club;  Adamastos Shipping, through its principal Gourdomichalis, notified The American Club of the potential insurance claim;  after The American Club transferred the matter to its New York office, Gourdomichalis communicated with The American Club about the incident;  and ultimately, Gourdomichalis terminated the insurance and abandoned the vessel.  Therefore, long-arm jurisdiction pursuant to CPLR 302(a)(1) over Gourdomichalis was established (Bangladesh Bank v. Rizal Commercial Banking Corp., 226 A.D.3d 60, 208 N.Y.S.3d 2 [1st Dept. 2024]).

Further, although the court properly determined that defendant was not entitled to summary judgment dismissing the negligence claim on the ground that it was time barred, it improperly referred to the doctrine of equitable tolling.  Equitable tolling generally applies to federal causes of action in New York. Here, where plaintiff brings a state cause of action, the applicable doctrine is equitable estoppel (see Ari v. Cohen, 107 A.D.3d 516, 517, 968 N.Y.S.2d 31 [1st Dept. 2013];  Shared Communications Servs. Of ESR, Inc. v. Goldman, Sachs & Co., 38 A.D.3d 325, 326, 832 N.Y.S.2d 32 [1st Dept. 2007]).  Great Lakes sufficiently raised a factual issue as to whether equitable estoppel applied based on its allegations that it only became aware of Gourdomichalis’ actions once depositions were completed in December 2018, and a Rule 45 subpoena was issued on January 23, 2019 to produce the claim file in a prior federal court action (see Pahlad v. Brustman, 33 A.D.3d 518, 519–520, 823 N.Y.S.2d 61 [1st Dept. 2006]).

On the merits, the court properly determined that Great Lakes raised issues of fact as to whether Gourdomichalis acted negligently by participating in a scheme that was structured to avoid clear liability for the vessel's registered owner, operator, and their “P & I” insurers on a multi-million-dollar cargo claim.  The deposition testimony and documentary evidence were sufficient to raise an issue of fact as to whether Gourdomichalis was negligent because he was a “key decision-maker” in the handling of and eventual abandonment of the fully laden vessel, who knew that the vessel was not properly capitalized, that the vessel had operational, technical, and safety deficiencies and that Adamastos Shipping was routinely behind on invoice payments.

Gourdomichalis’ argument that Great Lakes has not proven damages, based on the failure to prove a valid subrogation claim, is unpreserved (see Marcal Fin. SA v. Sutton, 226 A.D.3d 596, ––– N.Y.S.3d –––– [1st Dept. 2024]).