The following e-filed papers numbered 35 to 62 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed35-4445-50

Opposing Affidavits (Affirmations)57-6054-56

Reply Affidavits (Affirmations)61-62

Affidavit (Affirmation)

Plaintiff's Memorandum of Law51

This is a purported derivative action brought by plaintiff Ositandinma Okeke (plaintiff), an individual and a member of Nnewi USA, Inc. (Nnewi), and allegedly at least ten percent of the members of Nnewi, and in the right of Nnewi, and on behalf of all other members of Nnewi similarly situated. Defendants Nnewi and Nathan Momah (Momah), as an individual and in his capacity as president of Nnewi, (collectively, defendants) move for an order dismissing this action pursuant to CPLR 3211 (a) (8) and 302 (a). Plaintiff moves for an order, pursuant to CPLR 901 and 902, to determine if the fourth cause of action of his complaint, which is a derivative claim on behalf of Nnewi, may be maintained as a class action.

Nnewi is a Not-For-Profit corporation formed and operating under and governed by the laws of the State of Texas. Nnewi's Articles of Incorporation of Non-Profit Corporation, filed in the Office of the Secretary of State of Texas on July 15, 1998, reflect that Nnewi is a Texas Non-Profit Corporation, organized exclusively for charitable and educational purposes, with a registered office in Texas, a registered agent in Texas, and whose incorporator was a resident of Texas. Nnewi is a national organization, which has [*2]members in many states. Nnewi's members are descendants of villagers from the Town of Nnewi, a village in Nigeria. Nnewi is engaged in charity work aimed at helping Nnewi, as well as providing a medium in which immigrants from that region can socialize and promote their ideas. Nnewi's members strive to help their native town of Nnewi by raising awareness of issues back home in Nnewi and by raising funds to help charitable projects. There are allegedly 283 members of Nnewi nationwide; membership is voluntary through local chapters according to Nnewi's Constitution, Article Two.

Nnewi works together with numerous local and regional organizations, referred to as Chapters, each of which is an independent corporation. Nnewi Union New York Tri-State, Inc. (the Nnewi Union New York Tri-State Chapter) is a Chapter local to the New York Tri-State area and was formed under the Not-For-Profit Corporation Law of New Jersey as an association of people who are descendants of villagers from the Town of Nnewi who reside in New York, New Jersey, Connecticut, Pennsylvania, and Delaware. There are a total of eight Chapters of Nnewi throughout the United States. Individuals and families are first members of their local Chapters and then, following payment of their annual dues, may become members of the national organization, Nnewi.

Plaintiff is a member, and the current elected president, of the Nnewi Union New York Tri-State Chapter; he was also the delegate to Nnewi representing the Nnewi Union New York Tri-State Chapter between 1999 to 2002 and 2006 to 2009. Plaintiff is also a member of Nnewi. Bi-annually, local Chapters send their delegates to a meeting held by Nnewi, at which the general direction of the individual Chapters and joint inter-organizational projects that require efforts of more than one local Chapter are discussed. At these annual meetings, Nnewi holds the elections of its officers, and each of the Chapters pays the annual membership dues for its members. The main sources of financing for Nnewi are annual membership dues and donations from members and members of the public obtained from fund-raising efforts.

Nnewi's Articles of Incorporation indicate that an "initial" board of directors, consisting of nine members, none of whom are residents of New York, would serve until an election to be held at the annual meeting. Nnewi has a Constitution and Bylaws, prepared, adopted, and ratified by the Constitution Committee Members. Article Eleven of the Constitution and Bylaws provides, in section 11.02, that "[t]his Constitution shall be governed by and construed in accordance with the laws of the State of Texas."

Article Two of the Constitution and Bylaws states that membership in Nnewi is open to all persons of Nnewi descent through the local Chapters. Article Three of the Constitution and Bylaws specifies that each local Chapter shall have two representatives in the House of Delegates. Pursuant to Article Three of the Constitution and Bylaws, election to the various offices of the Executive Council of Nnewi begins by nomination by an Electoral Committee, nominated by the General Assembly, composed of "all members in good standing", followed by election by members of the House of Delegates, based on a weighted average such that every five members of the local chapter constitutes [*3]one delegate vote.

Defendant Nathan Momah, who is a resident of New York, was, until the July 2013 convention held in Boston, the president of Nnewi, initially elected in July 2008 at Nnewi's annual national convention for a two-year term. Prior to the 2008 convention and election of Momah as president, plaintiff had been elected and served two terms of office as the General Secretary of Nnewi.

Nnewi held its national convention in July 2010, hosted by the Houston, Texas Chapter of Nnewi. At that time, the position of president was also sought by Grace Anosike (Anosike), another member of Nnewi. Momah was elected at the 2010 convention in Houston for a second two-year term. Although Nnewi recognized Momah as winning the election and as its president, plaintiff claims that Anosike had actually obtained the highest number of votes and that Momah was not duly elected. In July 2011, Nnewi sponsored another national convention, hosted by a Chapter in Los Angeles, California. At that convention, Nnewi adopted amendments to its Bylaws.

In July 2012, Nnewi sponsored a national convention hosted by the Dallas, Texas Chapter, at which plaintiff and Chidi Metu (Metu) were candidates running against each other for the position of President of Nnewi. Due to an alleged election irregularity which, according to defendants, was caused by plaintiff, the 2012 election was cancelled. Plaintiff does not deny that he had provided a check for $4,000 as the alleged membership dues to Nnewi from the Nnewi Union New York Tri-State Chapter and then put a stop payment on the check. A fact-finding investigation committee, called the Dallas Botched Election Investigation Committee (the Investigation Committee), was formed to determine if plaintiff misrepresented the number of members of the Nnewi Union New York Tri-State Chapter in order to bolster the number of votes at his disposal. The Investigation Committee was also assigned to investigate the issue of plaintiff's check. Momah was asked by the delegates from the Chapters to remain at his post until the Investigation Committee made its rulings and until the next election to be held the following year.

The Investigation Committee produced and released a report, entitled "the Dallas Botched Election Investigation Committee Report" (the Botched Election Report), in February 2013, which was disclosed to the members of Nnewi. The Botched Election Report stated that the Investigation Committee had reviewed the 2011 membership list submitted by the Nnewi Union New York Tri-State Chapter, compared the financial members, determined who cancelled the check and why, who should be penalized, and what sort of punishment should be imposed. Specifically, the Investigation Committee found that, contrary to the list of 80 members that was submitted by the Nnewi Union New York Tri-State Chapter in Dallas, the 2011 membership list showed a membership of 58 financial members for the Nnewi Union New York Tri-State Chapter. The Investigation Committee found that the Nnewi Union New York Tri-State Chapter initially submitted a list of 80 members and paid a $4,000 membership fee, but [*4]subsequently cancelled the check. It noted that the Nnewi Union New York Tri-State Chapter subsequently remitted $2,000 (paying for only 40 members), but was still required to pay the outstanding $2,000 to Nnewi. It found that plaintiff, as the president of the Nnewi Union New York Tri-State Chapter, had committed "an intentional misrepresentation which was intended to control the outcome of the election," and that plaintiff's subsequent act of cancelling the check cost Nnewi money and its reputation with the bank. It recommended that plaintiff be banned from contesting (i.e., running as a candidate for office in) the next two consecutive Nnewi elections.

In July 2013, a national convention of Nnewi was hosted by the Boston, Massachusetts Chapter. At that convention, Chidi Metu, who is the current president of Nnewi, was elected. Metu is a resident of California and a practicing attorney. Every Chapter of Nnewi was represented at the July 2013 convention, during which, the Chapters ratified the actions of Nnewi and its officers for the prior year and the last budget was approved. The affidavit of President Metu has been submitted in support of defendants' motion; the minutes of the 2013 convention are annexed, together with, inter alia, the report of the Investigation Committee. According to Metu, Nnewi tried to resolve the issues raised by plaintiff internally by agreeing with the proposal of Anosike, who suggested that anybody on the convention floor could come up to run for election. Metu states, therefore, that had plaintiff attended the July 2013 convention, he could have run for election. Plaintiff, however, chose not to attend the July 2013 convention. In addition, as reflected in the minutes of the July 2013 convention, after a written letter of apology concerning plaintiff's behavior was submitted by Alexander Nweji, a member of the Nnewi Union New York Tri-State Chapter, Nnewi agreed to forgive the $2,000 assessment for membership fees which the Nnewi Union New York Tri-State Chapter had been charged.

On June 17, 2013, plaintiff filed this purported derivative action against Momah and Nnewi, and also named Eric T. Schneiderman, the Attorney General of the State of New York (the Attorney General), as a nominal defendant, alleging that he was joined pursuant to Not-For-Profit Corporation Law § 1102, which provides that "[i]n any proceeding for judicial dissolution the attorney-general shall be a necessary party." The Attorney General interposed an answer, which asserted that he was not a proper party to this action because Nnewi is a Texas corporation, and, Nnewi, as a foreign corporation, may not be dissolved by this court under the laws of New York. By a stipulation of discontinuance dated October 30, 2013, plaintiff discontinued this action as against the Attorney General.

Plaintiff's amended complaint as against Momah and Nnewi alleges 13 causes of action. Plaintiff's first cause of action alleges that Momah caused Walter Mojekwu to file a false and fraudulent instrument, to wit: Form 802 (Periodic Report of a Nonprofit Corporation) dated April 2, 2010 with the Texas Secretary of State. He claims that this report was false because it stated that Walter Mojekwu, Susan Odunukwe, and Edward [*5]Ukatu were the directors of Nnewi and none of them were directors of Nnewi. He seeks, in his first cause of action, that appropriate penalties be imposed on Momah for filing or causing the filing of this allegedly false instrument in Texas. Obviously, the subject of this claim relates to matters governed by the laws of Texas and is not properly brought before this New York court.

Plaintiff's second cause of action alleges that Momah violated Nnewi's Bylaws by refusing to allow the House of Delegates oversight of the activities of the executive officers, expending funds belonging to Nnewi without the prior approval of the House of Delegates, purporting to amend the Bylaws during the 2011 Los Angeles convention without obtaining the requisite two-thirds majority vote of the House of Delegates in attendance at the convention, and collaborating with other officers to allow them to continue in office after their terms expired in July 2012. Plaintiff seeks, by his second cause of action, enforcement of Nnewi's Bylaws by specific performance mandating that Nnewi's executives submit to the oversight of the House of Delegates, that all expenditures be submitted to the House of Delegates for prior approval, and that Momah and other Nnewi officials whose tenures expired in July 2012 no longer be permitted to make any decisions or to take any actions as officials of Nnewi.

Plaintiff's third cause of action alleges that Momah signed several checks with other Nnewi officers representing payments or transfers to individuals, corporations, and associations without the approval of the House of Delegates. Specifically, plaintiff asserts that Nnewi lost at least $7,000 in late 2010 to early 2011 as a result of a transfer by Momah of $24,000 to a Nnewi member and former member. Plaintiff seeks the appointment of an independent forensic auditor to audit the account of Nnewi from July 2008 to date.

Plaintiff's fourth cause of action, characterized as a derivative action on behalf of Nnewi, also purports to assert a class action, on behalf of himself and on behalf of, and for the benefit of, all other members of Nnewi similarly situated who were members of Nnewi from July 2008 until June 2013 and are now members of record of Nnewi, constituting at least five percent of the total membership of Nnewi, who donated funds to Nnewi that were expended after July 7, 2012, without legal authority. Plaintiff claims to represent this class and alleges, without indicating the actual number of members, that the class is so numerous that joinder of all members is impracticable in that some of the names of the members are unknown at this time. He further alleges that there are questions of law or fact common to the class which predominate over any questions affecting only individual members in that the allegations regarding the finances of Nnewi are common to all members. He also alleges that his claims are typical of the class and that he will fairly and adequately protect the interests of the class. He asserts that a class action is superior to other available methods for the fair and efficient adjudication of this derivative cause of action regarding the finances of Nnewi.

In this fourth cause of action, plaintiff alleges that Nnewi has received donations [*6]and contributions, and that beginning in July 2008 to date, Momah expended the funds of Nnewi without the approval by the House of Delegates, and caused such funds to inure to the benefit and use of members and former members of Nnewi without providing any services to Nnewi. He also alleges that Momah did not have the authority to expend any funds belonging to Nnewi after the election in July 2010, claiming that Momah was not duly elected president, and that he also did not have the legal authority to expend the funds of Nnewi after July 7, 2012, since, if Momah was duly elected in July 2010, his term had expired at that time.

Plaintiff's fifth cause of action for declaratory relief seeks a declaration that Anosike was the actual winner of the 2010 Nnewi presidential election and that she should be permitted to serve the term of her election, that Momah was not duly elected as president of Nnewi in 2010, that the purported amendment of Nnewi's Bylaws at the Los Angeles 2011 convention was invalid, that the extension of the tenure of Momah and the other Nnewi officers at the Dallas 2012 convention was illegal and of no effect, and that the recommendations which were approved on December 5, 2012 and which barred him from being a candidate in Nnewi's elections for two years, violated Nnewi's Bylaws and were invalid.

Plaintiff's sixth cause of action seeks a preliminary and permanent injunction preventing, among other things, Momah from acting or purporting to act as president of Nnewi, prohibiting the conducting of any election of officers, and freezing the accounts of Nnewi in the United States and Nigeria. To the extent that this sixth cause of action seeks a preliminary injunction, such a preliminary injunction was already sought by plaintiff, in an order to show cause e-filed on June 19, 2013, and was denied by this court's order dated August 14, 2013. In addition, to the extent that this cause of action seeks to enjoin the election of officers, such cause of action has been rendered moot since this election has already taken place.

Plaintiff's seventh cause of action seeks a declaration that the establishment of the Investigation Committee by Momah with respect to the Dallas Botched Election to investigate him and the Nnewi Union New York Tri-State Chapter, and the recommendation of punishment by the Committee, without providing him an opportunity to be heard, and the vote by the House of Delegates, on April 21, 2013, accepting the Investigation Committee's Botched Election Report and banning him from contesting the next two consecutive Nnewi elections, violated his rights as a member of Nnewi.

Plaintiff's eighth cause of action alleges that on March 5, 2013,Momah published the Botched Election Report, finding that he had committed an intentional misrepresentation which was intended to control the outcome of the election, on a Nnewi website that was an internet chat group accessible by people all over the world. He asserts that this publication was libelous and damaged his reputation and good name within the Nnewi community, and was read by Nnewi and non-Nnewi people. He demands that Momah be personally held liable for damages allegedly resulting from such [*7]alleged libel or that Nnewi and Momah be jointly and severally liable to him for such alleged libel.

Plaintiff's ninth cause of action seeks a dissolution of Nnewi pursuant to Not-For-Profit Corporation Law § 1102 (a) (2) (D). As discussed above, however, the Attorney General, in his answer, states that Nnewi, as a Texas Not-For-Profit corporation, cannot be dissolved in New York, and plaintiff, by discontinuing this action as against the Attorney General, who, pursuant to Not-For-Profit Corporation Law § 1102 (b), is required to be joined as a necessary party in any proceeding for judicial dissolution, has conceded that this cause of action cannot be maintained.

Plaintiff's tenth cause of action alleges that Momah expended or caused to be expended huge sums of Nnewi funds without the prior approval by the House of Delegates, thereby violating Nnewi's Bylaws, and that Momah caused substantial sums of Nnewi funds to be transferred to members and former members' bank accounts when they did not provide any services to Nnewi, to the financial detriment of Nnewi. He seeks a determination that these expenditures and transfers of Nnewi funds were illegal, void, and in violation of Nnewi's Bylaws.

Plaintiff's eleventh cause of action alleges that Momah's acts in implementing the ban preventing him from running as a candidate in two consecutive Nnewi elections violated his rights as a member of Nnewi and constituted gross negligence for which he should be held personally liable. He seeks damages against Momah individually and/or jointly with Nnewi for the violation of his rights as a member of Nnewi.

Plaintiff's twelfth cause of action alleges that he donated the sum of $1,500 in the course of the 2006 Nnewi convention in Detroit, Michigan, with the specific objective that it would be used to construct a library at Nnewi, Anambra State, Nigeria. He further alleges that a bank account, designated the Library Fund, was created, but that Momah caused some of the delegates to approve the withdrawal of $40,000 from the Library Fund to finance the general day-to-day operations of Nnewi, including the defense of this lawsuit. He seeks the return of these funds to the Library Fund.

Plaintiff's thirteenth cause of action alleges that the act of banning him from running for president in the 2013 election was illegal. Plaintiff further alleges, in this cause of action, that the Los Angeles, California Chapter did not pay its annual dues to Nnewi for 2004, 2006, and 2007, and that this should have disqualified Metu, as a member of the Los Angeles, California Chapter, from running for president. He seeks a declaration setting aside Metu's election as Nnewi's president due to this failure to pay dues. He also seeks to set aside this election based upon his being barred from running in the election due to the recommendation of the Investigation Committee.

Defendants interposed an amended answer with counterclaims, dated August 21, 2013, asserting affirmative defenses, including the defense that this New York court lacks jurisdiction over this action in that the causes of action alleged in the pleadings deal with the internal affairs and governance of Nnewi, which is a Texas Not-For-Profit corporation [*8]that does not conduct any business in the State of New York and does not have an office in the State of New York.

Defendants e-filed their instant motion to dismiss, dated October 15, 2013, seeking to dismiss plaintiff's action based upon a lack of personal jurisdiction. Thereafter, plaintiff e-filed his instant motion, seeking to maintain this action as a class action.

Plaintiff, by his motion, seeks class action certification with respect to his fourth cause of action, alleging that Momah did not have the legal authority to expend funds of Nnewi based upon his claim that Momah was not duly elected in 2010 and that, after July 7, 2012, Momah's term had expired. However, Nnewi recognized Momah as its duly elected president in 2010 and Momah was asked to remain in office until the 2013 election, at which time, Momah's actions were ratified. Indeed, plaintiff concedes in his Amended Complaint (at ¶ 398) that the "majority of NUSA delegates have confirmed, ratified and adopted the...acts of the defendant Nathan [Momah]". Plaintiff's claims are largely premised upon his dissatisfaction with not being able to run for president of Nnewi in the 2012 election, which was cancelled, and his dissatisfaction with the subsequent 2013 election, in which Metu was elected president of Nnewi. Many of plaintiff's claims concern the internal functioning of Nnewi and compliance with its Constitution and Bylaws over many years.^[FN1] It has not been shown that there are other members who share plaintiff's views and claims. In fact, no members other than plaintiff have been identified.

In order to obtain certification of a class, plaintiff must show that each of the prerequisites of CPLR 901 have been met, including "(1) the class is so numerous that joinder of all members is . . . impracticable; (2) there are questions of law or fact common to the class which predominate over questions affecting only individual members; (3) the claims . . . of the representative parties are typical of the claims . . . of the class; (4) the representative parties will fairly and adequately protect the interests of the class; and (5) the class action is superior to other available methods for the fair and efficient [*9]adjudication of the controversy." It is plaintiff's burden to show that the statutory prerequisites to certification of a class are met (see Kudinov v Kel-Tech Constr. Inc., 65 AD3d 481, 481 [1st Dept 2009]).

Plaintiff, without providing any supporting facts that he represents any other members who share his claims, states that these above requirements are met. In order to determine if the requirements set forth in CPLR 901 are met, and to assess the considerations which are listed in CPLR 902, plaintiff would need to conduct limited discovery to adduce and assemble evidence (see Rodriguez v Metropolitan Cable Communications, 79 AD3d 841, 842 [2d Dept 2010] Katz v NVF Co., 100 AD2d 470, 474 [2d Dept 1984] Chimenti v American Express Co., 97 AD2d 351, 352 [1st Dept 1983], appeal dismissed 61 NY2d 669 [1983] Gewanter v Quaker State Oil Ref. Corp., 87 AD2d 970, 970 [4th Dept 1982] Simon v Cunard Line, 75 AD2d 283, 290-291 [1st Dept 1980]).

However, plaintiff's fourth cause of action, for which he seeks to obtain class action certification, is a derivative claim asserted on behalf of Nnewi. Not-For-Profit Corporation Law § 623 (a) provides that "[a]n action may be brought in the right of a domestic or foreign corporation to procure a judgment in its favor by five percent or more of any class of members or by such percentage of the holders of capital certificates or of the owners of a beneficial interest in the capital certificates of such corporation."^[FN2] However, Not-For-Profit Corporation Law § 1320 provides that the provisions relative to derivative actions, i.e., those contained in Not-For-Profit Corporation Law § 623, only apply to foreign corporations doing business in New York. Thus, if the court does not have jurisdiction over Nnewi, as a foreign Not-For-Profit corporation which does not do business in New York, and Nnewi, as a foreign corporation not authorized to do business here, is precluded from maintaining such a claim, defendants' motion to dismiss will be dispositive of plaintiff's motion for class action certification. Therefore, the court will first address defendants' motion.

CPLR 3211 (a) (8) provides for dismissal of an action where the court lacks personal jurisdiction of the defendant, such as where the defendant does not do business in New York. In order for the court to exercise personal jurisdiction over a defendant, there must be a state law basis for personal jurisdiction and the exercise of state law jurisdiction must also comport with due process (see La Marca v Pak-Mor Mfg. Co., 95 NY2d 210, 214 [2000] Opticare Acquisition Corp. v Castillo, 25 AD3d 238, 247 [2d Dept 2005]). [*10]

Due process requires that in order to subject a defendant to personal jurisdiction, if it is not present within the state, such defendant must have "certain minimum contacts with [the state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice" (International Shoe Co. v Washington, 326 US 310, 316 [1945] [internal quotation marks omitted] see also Goel v Ramachandran, 111 AD3d 783, 787 [2d Dept 2013]). The test for minimum contacts is whether a defendant's conduct and connection with the forum state are such that it "should reasonably anticipate being hailed into court there" (World-Wide Volkswagen Corp. v. Woodson, 444 US 286, 297 [1980]). A court may obtain jurisdiction over a non-domiciliary corporation if it has engaged in "purposeful activity" within the state, and there is a "substantial relationship" between the activity and the acts alleged by the plaintiff (see Armouth Intl. v Haband Co., 277 AD2d 189, 190 [2d Dept 2000]). "[T]he aggregate of the corporation's activities in the State [must be] such that it may be said to be present' in the State not occasionally or casually, but with a fair measure of permanence and continuity'" (Laufer v Ostrow, 55 NY2d 305, 310 [1982], quoting Tauza v Susquehanna Coal Co., 220 NY 259, 267 [1917]).

The burden of proof rests upon the party asserting personal jurisdiction (see Armouth Intl., 277 AD2d at 190; Roldan v Dexter Folder Co., 178 AD2d 589, 590 [2d Dept 1991] Spectra Prods. v Indian Riv. Citrus Specialties, 144 AD2d 832, 833 [3d Dept 1988]). Where a defendant submits facts that would negate a court's power to obtain jurisdiction over it, the plaintiff is required "to come forward with evidence to support the existence of a basis upon which to predicate the exercise of personal jurisdiction . . . or to at least show that such evidence may exist" (Roldan, 178 AD2d at 590; see also Weiss v Chou, 234 AD2d 539, 540 [2d Dept 1996] Spectra Prods., 144 AD2d at 833).

As discussed above, Nnewi is a foreign Not-For-Profit corporation, incorporated in Texas. Defendants note that there is no basis for long-arm jurisdiction over Nnewi pursuant to CPLR 302. Specifically, they assert that Nnewi does not transact any business within New York or contract to supply goods or services within New York, that it has not committed any tortious act (except allegedly for defamation which is excepted from CPLR 302), and that it does not own, use, or possess any real property in New York.

Defendants further assert that Nnewi is not subject to personal jurisdiction in New York under CPLR 301. CPLR 301 permits New York courts to exercise jurisdiction over an entity that has engaged in "a continuous and systematic course of doing business'" in this state, such that it may be said to have a "presence" here (Landoi Resources Corp. v Alexander & Alexander Servs., 77 NY2d 28, 33 [1990], quoting Laufer, 55 NY2d at 309; see also Delagi v Volkswagenwerk AG of Wolfsburg, Germany, 29 NY2d 426, 430-431 [1972], rearg denied 30 NY2d 694 [1972] Frummer v Hilton Hotels Intl., 19 NY2d 533, 536 [1967], cert denied 389 US 923 [1967] Simonson v International Bank, 14 NY2d 281, 285 [1964]). "The test for doing business' is a simple [and] pragmatic one,' which varies in its application depending on the particular facts of each case" [*11](Landoi Resources Corp., 77 NY2d at 33). "The court must be able to say from the facts that the corporation is present' in the State not occasionally or casually, but with a fair measure of permanence and continuity'" (Id. at 33-34, quoting Tauza, 220 NY at 267; see also Laufer, 55 NY2d at 310).New York's Not-For-Profit Corporation Law provisions, which are applicable to foreign Not-For-Profit corporations, provide a procedure for authorizing a foreign corporation to "conduct activities" in New York which lawfully could be conducted by a domestic corporation, provided it is authorized to conduct such activities in its state of incorporation (see Not-For-Profit Corporation Law § 1301 [a] § 1306; compare Business Corporation Law § 1301 [which provides the same basic scheme for commercial corporations, and uses the words "do business," rather than "conduct activities"]). The requirements for the application for authority to "conduct activities" in New York are set forth in Not-For-Profit Corporation Law § 1304. Absent such authorization, a foreign corporation may not lawfully "conduct activities" in New York (Not-For-Profit Corporation Law § 1301 [a]).

Not-For-Profit Corporation Law 1301 (b) provides a non-exclusive list of acts which, singly or together, are statutorily deemed not to constitute the conducting of activities by a foreign corporation in New York for purposes of the Not-For-Profit Corporation Law. These include: "[m]aintaining or defending any action or proceeding . . . effecting settlement thereof or . . . sett[ing] claims or disputes"; "[h]olding meetings of its directors or members"; "[m]aintaining bank accounts"; "[m]aintaining offices or agencies only for the transfer, exchange and registration of its securities, or appointing and maintaining trustees or depositories with relation to its securities"; "[g]ranting funds"; and "[d]istributing information to its members" (Not-For-Profit Corporation Law § 1301 [b]). The items in this nonexclusive list of acts deemed not to constitute the conducting of activities in New York are identical to those set forth in the same numbered section and subdivision of the Business Corporation Law as not constituting "doing business" in New York, with the addition of the granting of funds and the distribution of information to its members (see Business Corporation Law § 1301 [b]).

Not-For-Profit Corporation Law § 1315 (a) provides that actions or proceedings against foreign corporations may be maintained for any cause of action by a New York resident or domestic corporation. However, of course, in personam jurisdiction over the defendant must be acquired. Thus, where there is no basis for personal jurisdiction over a Not-For-Profit corporation, such as where New York does not have personal jurisdiction under CPLR 302 and because, pursuant to CPLR 301, neither a continuous and systematic course of conduct nor doing business in the State are shown, the action must be dismissed for lack of personal jurisdiction (see Grinell v Bankers Trust Co., 135 AD2d 471, 472 [1st Dept 1987], appeal denied 71 NY2d 802 [1988]).

Defendants note that, as set forth above, Article Eleven of the Constitution and Bylaws of Nnewi, entitled "Jurisdiction," provides that "[t]his Constitution shall be governed and construed in accordance with the laws of the State of Texas." Defendants [*12]further note that while Momah is from New York, prior presidents of Nnewi were from other states, and Nnewi's current president, Metu, is from California. While Nnewi holds meetings in various states of the United States, this does not create a jurisdictional nexus for the state where the meeting is held (see Not-For-Profit Corporation Law § 1301 [b]). Nnewi is not authorized to conduct activities or do business in New York pursuant to the Not-For-Profit Corporation Law; it neither owns nor leases any real or personal property here, it pays no New York taxes, and it has not appointed an agent for receipt of service of process in New York (see Grinell, 135 AD2d at 472).

Defendants point out that the purpose of Nnewi is to engage in activities that are not aimed at the residents of any particular states, and that the Chapters, which are independent corporations, are the entities directly involved with local affairs. While Nnewi is associated with local Chapters, including Nnewi Union New York Tri-State Chapter, the Chapters are independent corporations which do not have a parent/subsidiary relationship with Nnewi. Nnewi and the Chapters are not alter egos of one another and neither is the other's agent, so as to subject Nnewi to jurisdiction through the Nnewi Union New York Tri-State Chapter, which is a New Jersey corporation (see Delagi, 29 NY2d at 432; see also Frummer, 19 NY2d at 537-538; Pacamor Bearings v Molon Motors & Coil, 102 AD2d 355, 356-357 [3d Dept 1984], appeal withdrawn 64 NY2d 886 [1985]). The court cannot impute the in-state activities of this Chapter to Nnewi, such that Nnewi may be deemed to be present in New York pursuant to CPLR 301. Furthermore, "[u]nless a foreign corporation is engaged in business within the state, it is not brought within the state by the presence of its agents" (Tauza, 220 NY at 268; see also Gertsenstein v Peninsular & Oriental Steam Nav. Co., 202 Misc 838, 841 [City Ct, NY County 1952], affd 204 Misc 459 [App Term 1953]).

There is no real connection between this action and the State of New York. The quality and the nature of Nnewi's contacts with this state are insufficient to make it reasonable and just for it to be required to defend an action here. Plaintiff has not shown that Nnewi is engaged in "a continuous and systematic course of doing business'" in this state (see Landoil Resources Corp., 77 NY2d at 33; Uzan v Telsim Mobil Telekomunikasyon Hizmetleri A.S, 51 AD3d 476, 477 [1st Dept 2008]). Nnewi has no presence in New York such that it could be said to be doing business here (see Parsons v Kal Kan Food, Inc., 68 AD3d 1501, 1502-1503 [3d Dept 2009]). Thus, plaintiff has failed to sustain his burden of demonstrating that Nnewi, a Texas Not-For-Profit corporation, has directly engaged in activities sufficient to establish its presence in New York within the meaning of CPLR 301. Consequently, this court lacks personal jurisdiction over Nnewi.

Moreover, plaintiff has brought this action derivatively, on behalf of Nnewi. Not-For-Profit Corporation Law § 1314 provides that actions and proceedings by foreign corporations may be maintained in the same manner, and subject to the same limitations, as a domestic corporation, except as otherwise prescribed by statute. A foreign Not-For-[*13]Profit corporation conducting activities without authority may not maintain an action or proceeding until authorized, and until it has paid all fees, penalties, and franchise taxes for the period, if any, during which it acted without authority (Not-For-Profit Corporation Law § 1313 [a]). Not-For-Profit Corporation Law § 1320 provides that a members' derivative action brought in the right of the corporation to procure a judgment in its favor under Not-For-Profit Corporation Law § 623 (which permits such a derivative action to be brought in the right of the corporation to procure a judgment in its favor by five percent or more of any class of members) applies to foreign corporations "conducting activities in this state" (i.e, doing business in New York) and their officers, directors, and members. Since Nnewi is not doing business or conducting activities in New York and is not authorized to do so, plaintiff cannot maintain this derivative action on Nnewi's behalf.

While plaintiff's amended complaint also asserts claims against Momah, Not-For-Profit Corporation Law § 1318 provides that the officers of a foreign corporation "conducting activities in this state" are subject, to the same extent as directors and officers of a domestic corporation, to the provisions of Not-For-Profit Corporation Law § 720, which provides that an action may be brought against an officer of a corporation to procure a judgment compelling such officer to account for his official conduct for "[t]he neglect of, or failure to perform, or other violation of his [or her] duties in the management and disposition of corporate assets committed to his [or her] charge . . . [t]he acquisition by himself [or herself], transfer to others, loss or waste of corporate assets due to any neglect of, or failure to perform, or other violation of his [or her] duties . . . [t]o set aside an unlawful conveyance, assignment or transfer of corporate assets, where the transferee knew of its unlawfulness . . . [and t]o enjoin a proposed unlawful conveyance, assignment or transfer of corporate assets, where there are reasonable grounds for belief that it will be made." As discussed above, plaintiff's amended complaint alleges that Momah transferred corporate funds of Nnewi. While Momah is a New York resident, since plaintiff brings this action, on behalf of Nnewi, against Momah, as a former officer of Nnewi and regarding actions taken by him as an officer of Nnewi, which is a foreign corporation that does not conduct activities in New York and is not authorized to do so, this court lacks jurisdiction over such claims.

Moreover, "[w]here the object of the suit is to interfere with or control the internal affairs of a corporation, jurisdiction will be declined," particularly where a foreign corporation does not have substantial contacts with New York (North v Ringling, 187 Misc 621, 624 [Sup Ct, NY County 1946] see also Sternfeld v Toxaway Tanning Co., 290 NY 294, 297 [1943] Cohn v Mishkoff Costello Co., 256 NY 102, 105 [1931] Siegelstein v Bruce, 266 App Div 668, 668 [2d Dept 1943]). Here, plaintiff seeks the court's determination that his disqualification from contesting the July 2013 election by defendants was contrary to Nnewi's Bylaws, that the extension of the tenure of office of Momah violated Nnewi's Bylaws, and that Momah, as president of Nnewi, violated Nnewi's Bylaws. These claims seek to control the internal affairs of Nnewi, a foreign [*14]corporation.

Thus, since Nnewi is a foreign Not-For-Profit corporation which is not doing business in New York, and Momah's alleged acts were taken as the president of Nnewi, and since plaintiff may not bring this action derivatively on behalf of a Not-For-Profit corporation not authorized to do business in New York, the court cannot exercise jurisdiction over this action. Therefore, defendants' motion to dismiss plaintiff's amended complaint must be granted (see CPLR 3211 [a] [8]).

Accordingly, defendants' motion to dismiss plaintiff's action as against them is granted. In view of this determination, plaintiff's motion for class action certification is denied as moot.

This constitutes the decision, order, and judgment of the court.

E N T E R,

J. S. C.