BORDEN LP v. TPG SIXTH STREET PARTNERS (2019)

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] ).