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LIVIA VARKONYI v. S. A. EMPRESA DE VIACAO AIREA RIO GRANDENSE (VARIG) ET AL. (06/14/68)

COURT OF APPEALS OF NEW YORK


decided: June 14, 1968.

LIVIA VARKONYI, INDIVIDUALLY AND AS PARENT OF LASZLO VARKONYI AND ANOTHER, INFANTS, APPELLANT,
v.
S. A. EMPRESA DE VIACAO AIREA RIO GRANDENSE (VARIG) ET AL., RESPONDENTS, ET AL., DEFENDANT; NANCY M. FAULKNER ET AL., AS ADMINISTRATORS OF THE ESTATE OF EDWARD B. FAULKNER, DECEASED, ET AL., APPELLANTS, V. S. A. EMPRESA DE VIACAO AIREA RIO GRANDENSE (VARIG) ET AL., RESPONDENTS, ET AL., DEFENDANTS; CHRISTINA ALVAREZ, INDIVIDUALLY AND AS PARENT AND GUARDIAN OF CARLOS G. ALVAREZ AND OTHERS, INFANTS, ET AL., APPELLANTS, V. S. A. EMPRESA DE VIACAO AIREA RIO GRANDENSE (VARIG) ET AL., RESPONDENTS, ET AL., DEFENDANT

Varkonyi v. S. A. Empresa De Viacao Airea Rio Grandense (Varig), Judges Burke, Scileppi, Bergan, Breitel and Jasen concur with Chief Judge Fuld; Judge Keating dissents in part in a separate opinion.

Author: Fuld

 A Boeing 707 type aircraft, on a flight from Rio de Janerio, Brazil, to Los Angeles, California, crashed while attempting to land in Lima, Peru, on November 27, 1962. All of the passengers, including the plaintiffs' decedents -- Zoltan Varkonyi, a national of Hungary, residing in Brazil at the time of his death, Edward Faulkner, a British national, and Carlos Alvarez, a Mexican national -- were killed. These actions for wrongful death followed. They were brought in the Supreme Court, New York County, against the airline -- S. A. Varig, a corporation chartered in Brazil but doing business in this State -- and its New York subsidiary, Varig Airlines, Inc., as well as against the manufacturer of the plane -- the Boeing Company, a corporation chartered in Delaware and also doing business in New York. The plaintiffs were, respectively, residents of Hungary, Great Britain and Florida.

Invoking this State's general policy against burdening its courts with foreign-based actions between nonresident parties (see Bata v. Bata, 304 N. Y. 51, 56), the defendants S. A. Varig and Boeing moved to dismiss the complaints on the ground of forum non conveniens. In support of their motions, they also urged that they would be subjected to the hardship of bringing witnesses from far-off places and that the New York courts would be required to interpret and apply foreign law with which they were unfamiliar.

Although recognizing the general policy against entertaining such suits in this forum, the court at Special Term denied the motions on the ground that "special circumstances" were presented which warranted the retention of jurisdiction. The court pointed out that there was no forum other than New York in which suit could be brought against both the airline and the manufacturer of the plane and that "[proof] of the issue of manufacturer's liability may be inseparably connected with proof on the issue of faulty operation and maintenance." It further noted that other actions against these defendants, based on the same plane crash, were pending in the Federal and State courts in New York and that there had already been extensive discovery proceedings in the Federal court actions.

A divided Appellate Division reversed Special Term's order, on the law and facts and in the exercise of discretion, and dismissed the complaints on condition that the defendants stipulate to waive the defense of the Statute of Limitations in any actions thereafter commenced by the plaintiffs in "a proper jurisdiction". The majority held that neither the unavailability of another forum in which both of the moving defendants could be joined nor the "convenience of plaintiffs and their counsel" were sufficient factors to justify burdening our courts with these suits. It ruled in this connection that "'it is the "convenience" of the court, and not that of the parties, which is the primary consideration'".

Since the defendant foreign corporations are doing business in this State, there is no statutory prohibition against the maintenance of these actions here (Business Corporation Law, ยง 1314, subd. [b], par. [5]). Our courts, however, are under no compulsion to add to their heavy burdens by accepting jurisdiction of a suit between nonresident parties on a cause of action having no nexus with this State. The question whether such a suit should be entertained is one which is in general committed to the discretion of the courts below, to be exercised by reviewing and evaluating all the pertinent competing considerations. (See Bata v. Bata, 304 N. Y. 51, 56-57, supra; Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507-509.) We will not, ordinarily, interfere with the Appellate Division's exercise of such discretion unless there has been an abuse of discretion as a matter of law.*fn1 Where, however, that court, in exercising its discretion, fails to take into account all the various factors entitled to consideration, it commits error of law reviewable by this court. (See, e.g., Taylor v. Interstate Motor Frgt. System, 309 N. Y. 633; de la Bouillierie v. de Vienne, 300 N. Y. 60; see, also, Cohen and Karger, Powers of the New York Court of Appeals, pp. 607-608.) Among the pertinent factors to be considered and weighed, in applying the doctrine of forum non conveniens, are, on the one hand, the burden on the New York courts and the extent of any hardship to the defendant that prosecution of the suit would entail and, on the other, such matters as the unavailability elsewhere of a forum in which the plaintiff may obtain effective redress and the extent to which the plaintiff's interests may otherwise be properly served by pursuing his claim in this State. (See Bata v. Bata, 304 N. Y. 51, 56-57, supra; Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507-509, supra.) We held in the Taylor case (309 N. Y., at p. 636) that, where "there are special and unusual circumstances" favoring acceptance of a suit between nonresident parties based on an out-of-state tort, it is error of law for the Appellate Division to exclude consideration of such circumstances in deciding whether to exercise its discretion in favor of accepting or of rejecting jurisdiction. Similarly, in the cases before us, the special circumstances mentioned by Special Term, particularly the absence of any other forum in which both of the moving defendants could be joined, were factors which the Appellate Division was bound to take into account in exercising its discretion. In view of its disregard of these factors, its order cannot stand and the matter should be remitted to the Appellate Division for further consideration. (See Taylor v. Interstate Motor Frgt. System, 309 N. Y. 633, 636, supra.) Upon such remission, it is hardly necessary to add, that court will be free to make its own judgment on the basis of all the relevant factors.*fn2

The order appealed from should be reversed, with costs, and the cases remitted to the Appellate Division for further proceedings in accordance with this opinion.

Disposition

Order reversed, etc.

Keating, J. (concurring in part and dissenting in part). I agree with the majority that a reversal is required here. I would, however, reinstate the order of Special Term rather than remand the case to the Appellate Division. Since I believe that the majority opinion does not adequately deal with the important questions presented by this case and since I cannot agree with the disposition, I take the liberty of setting forth my views at length.

On November 27, 1962 a Boeing 707 jet airliner en route from Rio de Janerio, Brazil, to Los Angeles, California, crashed while attempting to land for a scheduled stop in Peru. The passenger list of the plane was as international as its itinerary. Among those killed were Zoltan Varkonyi, a national of Hungary, residing in Brazil at the time of his death, Edward Faulkner, a British national and Carlos Alvarez, a Mexican national.

These actions for wrongful death were commenced in the Supreme Court (New York County) against the Boeing Company, a corporation chartered in Delaware but doing business in this State, S. A. Empresa De Viacao Airea Rio Grandense (S. A. Varig), a corporation chartered in Brazil, also doing business in this State, and Varig Airlines, Inc., a New York subsidiary of S. A. Varig.*fn1

The defendants S. A. Varig and Boeing, demonstrating concern for the burden on courts of this State if the cases were tried here, moved to dismiss the causes of action maintained for the benefit of residents of two foreign nations (Hungary and Britain) and a sister State (Florida)*fn2 on the ground of forum non conveniens. The Supreme Court (Special Term) denied the motion. The court held that "special circumstances" were present which, in the interest of justice, required maintenance of the action here. The court noted that the doctrine of forum non conveniens presupposes the existence of a second more convenient forum and that no such forum was available against both defendants. A consequence of the dismissal under the peculiar facts presented here, the court stated, would necessitate the commencement and trial of separate actions in Peru or Brazil against S. A. Varig and in Delaware against Boeing.

Such a result, the court noted, would not only work great hardship and expense upon the widow, children and other survivors of those killed but would also interfere with the orderly adjudication of the actions. The actions here involve complex questions with respect to the construction of the airliner on the part of Boeing and its operation by S. A. Varig. Special Term foresaw the necessity of having all the issues tried and resolved by one court. "Otherwise each defendant may point to the other as being responsible for the accident; and the plaintiff, a widow residing in Europe, with limited means, would have the burden of pursuing her proof against one defendant in North America and against the other defendant in South America. Employees of one defendant who might be essential as witnesses in the trial against the other defendant would be beyond the process of the court trying each action. Proof of the issue of manufacturer's liability may be inseparably connected with proof on the issue of faulty operation and maintenance."

With regard to the burden on the defendants, Special Term noted that both defendants transact business in this State and that S. A. Varig airliners have regularly scheduled flights to and from New York; that Boeing, which is one of the world's largest producers of aircraft, maintains a world-wide service organization and a large staff of employees devoted to the investigation of accidents involving its equipment. Moreover, there are nine other actions arising out of the same disaster pending in the Federal courts in New York City and the court noted that "[there] have been extensive discovery proceedings in the Federal Court actions, in which thousands of pages of technical data, documents, manuals and reports have been produced, and were and are being examined, and in which the extensive depositions of five witnesses, employees of Varig and Boeing, have been taken in the City of New York, with more being scheduled. It has been agreed by and between the attorneys for the parties hereto, who are the same attorneys in all of the actions, both State and Federal, that preparation and discovery, including depositions and examinations before trial, were to be consolidated in order to save time and expense to the parties and to the court."

Considering all these factors, the court concluded that the action should be entertained by the courts of this State.

The Appellate Division (First Dept.), with one Justice dissenting, reversed the order of Special Term on the law, facts and in the exercise of discretion and dismissed the complaints upon the condition that the defendants stipulate that they will not plead the Statute of Limitations as a defense but will waive such defense in any actions commenced by plaintiffs in a proper jurisdiction provided that the respective plaintiffs commence any such actions within 90 days after the entry of the order.

The Appellate Division held that it was the general policy of the courts of this State, in the absence of special circumstances, to reject actions between nonresidents founded upon tort where the cause of action arose outside the State. The court found no special circumstances here -- the term was not defined in its opinion -- which warranted the retention of the action. The sole reason for the maintenance of the action here related to the convenience of the plaintiffs and that it was the convenience of the court and not that of the plaintiffs which was the determinative factor.

On this appeal the plaintiffs argue that Special Term correctly determined that there were special circumstances warranting the retention of jurisdiction and that the Appellate Division's dismissal was error as a matter of law.

The plaintiffs' argument is clearly correct and there is no basis for the court's refusal to reinstate the order of Special Term.

Essentially two questions present themselves in every case involving suits between nonresidents on causes of action having no significant nexus with this State. The first is whether, despite the general policy considerations which militate against burdening the courts of this State with such actions, the circumstances are such that the interests of justice or other significant policy considerations warrant the retention of jurisdiction. The second consideration is whether -- assuming the case is one of the kind described above -- it is practically more feasible to try the action here rather than in another jurisdiction. With respect to this aspect of the problem it has been held that "unless the balance is strongly in favor of the defendant, the plaintiff's choice of

    --> forum should rarely be disturbed". (Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 [1947]; Bata v. Bata, 304 N. Y. 51 [1952]).

In the present cases there is no dispute that from the practical standpoint, i.e., the availability of witnesses, enforceability of judgment, and the burden on the defendants, no problem is presented by the retention of jurisdiction. Indeed, the trial of other actions in the Federal court in New York and the agreement of counsel to consolidate the pretrial proceedings make this forum particularly appropriate. In addition, it appears that there is yet another action with which the present actions have been consolidated which is on the Ready Calendar awaiting trial in the Supreme Court (New York County). Clearly this is the kind of case in which reasons of practicality and fairness to the defendants do not justify dismissal.

It is obvious then that the crucial issue relates to the first question posed -- namely are there present here reasons arising out of the interests of justice or other policy considerations which warrant the retention of jurisdiction despite the absence of practical inconvenience? To state the matter as it is frequently put, are there "special circumstances" here which justify the retention of jurisdiction and the attendant inconvenience to our courts? The resolution of this question obviously turns upon the definition of "special circumstances" -- a definition which I have not found in any of the lower court opinions. If the cases accepting jurisdiction are examined, however, they indicate that in all instances the court was moved by the injustice which would result to the plaintiff if our courts did not accept jurisdiction. Thus in Murnan v. Wabash Ry. Co. (222 App. Div. 833 [2d Dept., 1928]) jurisdiction was retained where the defendant was not subject to service of process in Connecticut where the plaintiff resided and it would have been financially burdensome for the plaintiff to sue in the State of the defendant's incorporation. Similarly in Zucker v. Raymond Labs. (74 N. Y. S. 2d 7 [1947]) jurisdiction was retained where the plaintiff, a resident of Pennsylvania, who was injured there commenced his action in New York because the defendant, a Minnesota corporation, did not do business in Pennsylvania (see, also, Richter v. Chicago, Rock Is. & Pac. Ry. Co., 123 Misc. 234 [1924]; State of Yucatan v. Argumedo, 92 Misc. 547 [1915]; Williamson v. Palmer, 181 Misc. 610 [1943]). In the present cases, Special Term retained jurisdiction because it found that dismissal would work undue hardship and injustice. The Appellate Division did not dispute Special Term's findings -- if the Appellate Division reversal on the facts intended to reverse this finding, it is without support in the record -- but rather determined that the controlling consideration was the convenience of the court.

This is clearly erroneous and, indeed, is contradicted by other decisions of the same court. Thus in Field v. Jordon (14 A.D.2d 845 [1st Dept., 1961]) the court found that the "special circumstances" which warranted retention of jurisdiction included "the fact that the defendant voluntarily came here in connection with the initial transaction which is the subject of the suit; that certain material witnesses are here; that the plaintiff would be subjected to a substantial disadvantage in the event he was relegated to an action in Brazil ; and that New York law is applicable to the contract between the parties". (Emphasis added.) Similarly in Katz v. Liston (22 A.D.2d 205 [1st Dept., 1964]) the court stated that "the presence of attachable assets here and the nonservability of [the named] defendant in Pennsylvania, the State in which the nonserved non-appearing defendants [were] domiciled " were "ample factors legitimately motivating the plaintiff to sue in this State" and that, therefore, that action should not be dismissed on the ground of forum non conveniens. (Emphasis added.)

Significantly, neither of the cases cited a single reason for burdening the courts of this State with the trial of actions involving nonresidents aside from those relating to the injustice and inconvenience a dismissal would cause the parties and the practical convenience of trying the cases here.

Moreover, if the controlling consideration in each case were the convenience of the court, as that term was employed in the case at bar, then it would be difficult to conceive of a case which justifies retention of jurisdiction, as our courts are always inconvenienced by the trial of actions having no relation to this State and its residents. If the court employed the term "convenience of the court" as it has evolved from the cases, it would equally not justify dismissal here. As Judge Breitel has written: "[The] principal reasons for rejection of jurisdiction insofar as the court's convenience is concerned is the effectiveness of the remedies that the court may render * * * and the distaste for and undesirability of enforcing statutory and revenue policies of other jurisdictions. The latter reasons turn upon the refusal to give extraterritorial effect to the sumptuary and regulatory laws of another jurisdiction." (Central Pub. Co. v. Wittman, 283 App. Div. 492, 495 [dissenting opn., 1st Dept., 1954]). None of these factors are present here.

These cases are not like the ordinary ones in which plaintiff seeks to press litigation here rather than in the State of his residence or in another more convenient forum and has come here in anticipation of a high jury verdict or for other unjustifiable reasons. We are here concerned with plaintiffs -- two of whom are aliens and cannot bring this action in their country of residence -- whose only other recourse would involve serious expense, inconvenience and prejudice.*fn3 In this respect the case is similar to Bata v. Bata (supra) where we noted that "the 'inconvenience' [of trying the case here] is not local, but inherent in the situation out of which the lawsuit arises" (304 N. Y., p. 57). And it can, therefore, hardly be said that retaining jurisdiction here would open the floodgates to all sorts of litigation with which this State has no concern.

Since I conclude that there are special circumstances here which justify the retention of jurisdiction -- a conclusion which the majority shares -- I see no alternative to a reversal and reinstatement of the order of Special Term retaining jurisdiction. The rule is well settled, as the Appellate Division in the instant case recognized (27 A.D.2d 731), that jurisdiction should be retained, once special circumstances are found to be present. The court held, however, that the circumstances in the instant case were not of the kind warranting the retention of jurisdiction. This holding is clearly erroneous.

The majority, however, has determined that the case must be remanded to the Appellate Division for that court to consider "the special circumstances mentioned by Special Term". There is, however, no basis for the assumption by this court that the Appellate Division failed to consider "the special circumstances mentioned by Special Term". The opinion of Special Term was before the Appellate Division, it was relied on by the dissenting Justice and, indeed, the memorandum of the Appellate Division indicates that it was clearly aware of the fact that a dismissal would result in serious inconvenience and prejudice to the plaintiffs. Moreover, the court was aware of the fact that another case -- with which these cases were consolidated -- was pending trial in New York County. The court, nevertheless, exercised its discretion to dismiss. That dismissal was error as a matter of law.

The majority's reliance on Taylor v. Interstate Motor Frgt. System (309 N. Y. 633, 636) as authority for a remand rather than a reinstatement of the order of Special Term is clearly misplaced and results from the erroneous manner in which the court has disposed of the procedural question raised by the defendants.

The defendants, as their first point, argue that "The decision below is purely discretionary, does not present a problem of law, and should, therefore, not be subject to further review". In support of their argument they rely on Bata v. Bata (supra) where we were asked to answer a certified question with regard to the correctness of an order affirming a denial of a motion to dismiss. The plaintiffs in that case had argued that the question certified was unanswerable since it had to do with a mere exercise of discretion and that we were without power to answer it. We proceeded to deal with the argument in the following manner: "[When] a court, on the ground of forum non conveniens, dismisses an action which it could entertain, it is exercising a discretionary power (Rothstein v. Rothstein, 272 App. Div. 26, affd. 297 N. Y. 705). But where, as here, there is a refusal to dismiss, a true question of law may result: that is, the question of whether there has been a violation of a fundamental policy as to the exercise of jurisdiction, in other words, an abuse of discretion ". (304 N. Y., p. 55; emphasis added.)

The defendants note quite correctly that, while Bata v. Bata indicates that an appeal from an order of the Appellate Division retaining jurisdiction would be reviewable, we made it rather

[22 N.Y.2d 333 Page 346]

    --> clear that, where the appeal is from an order dismissing an action on the ground of forum non conveniens, we would be required to dismiss.

The Taylor case (309 N. Y. 633, supra), upon which the majority opinion relies in order to sustain a remand in the case at bar, was decided shortly after the Bata decision. There we were concerned with an appeal from an order dismissing a complaint and we remanded the appeal to the Appellate Division for reconsideration in light of the special circumstances which we held were present. We did not reverse and order that jurisdiction be retained because we, in fact, relied on the clear implication in Bata that we did not have the power to do so. Indeed, when the Appellate Division adhered to its original determination on remand we dismissed the subsequent appeal on the ground that the decision was not subject to review (see 1 N.Y.2d 925).

It seems rather clear, now that the majority has properly decided to disregard what it judiciously refers to as "some language in some of our opinions" indicating that we would not have the power to review a case such as this, there is no longer any reason to follow the Taylor precedent. We should, therefore, reverse the order of the Appellate Division and reinstate the order of Special Term.


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