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July 2, 1980

Monica BING, Plaintiff,
Ann HALSTEAD, Defendant

The opinion of the court was delivered by: BRODERICK



 This is an action for the negligent or intentional infliction of mental distress. Plaintiff requests special damages, an award for pain and suffering and exemplary damages. This action was commenced in the Supreme Court of New York County by personal service of summons and complaint upon defendant, a resident of Arizona, while she was passing through New York. Defendant removed this action to this court pursuant to 28 U.S.C. § 1441 and now moves for summary judgment on the ground that Costa Rican law controls, and that it does not recognize as a tort the conduct alleged in the complaint.


 For the reasons stated below, the motion for summary judgment is granted, and the complaint is dismissed.


 For the purposes of this motion, the following facts are not in dispute.

 This action arises from the troubled relationships of the Bing family. Plaintiff is the daughter of Maja Bing, deceased, and John Bing. She has two brothers, Andrew and George. Defendant is plaintiff's aunt and the sister of John Bing.

 Since infancy, plaintiff has suffered from a celiac disease and atopic dermatitis, ills which have required medical attention. When plaintiff was fifteen, her parents were divorced and plaintiff went to live with her father. Plaintiff felt that her mother and brothers were aligned against her and that defendant harbored ill will towards her and favored her brothers.

 In October of 1974, when plaintiff was eighteen, she wrote her mother a letter which announced that communications between them from that moment would cease. In order further to insulate herself from family pressure, particularly that of her aunt and her brother George, plaintiff moved to Costa Rica in May of 1975. In Costa Rica, plaintiff enrolled in the university and resided at the home of her family's psychiatrist, who had moved there from New York for his health. She informed no one of her whereabouts except Mildred Netzke, her father's former housekeeper, who forwarded letters to her from New York.

 Plaintiff's mother died in January, 1976. The terms of her will had the effect of making plaintiff the sole beneficiary. Plaintiff was notified of her mother's death, but did not return to the United States at that time.

 Plaintiff's father continued to support her financially by sending checks to Mildred Netzke, who forwarded them to plaintiff. Her father made no effort to locate plaintiff, nor did he know of her whereabouts until March, 1977.

 Defendant, who had moved from New York to Arizona in 1974, wrote a letter dated March 18, 1977 to plaintiff to urge her to share her mother's estate with plaintiff's brothers. *fn1" It is this letter which caused plaintiff's emotional distress. The letter was mailed from Arizona to Chester Inwald, the executor of plaintiff's mother's estate, in New York. Mr. Inwald then sent the unopened letter to Mildred Netzke, who forwarded it to plaintiff in Costa Rica. After reading the letter, plaintiff suffered ills which confined her temporarily to bed and required medical attention.

 Since moving to Costa Rica, plaintiff has been back in the United States six times, although never for more than a week consecutively. On these occasions she saw her father and friends and on most or all of them engaged in activity connected with this litigation. For the purposes of this motion, defendant has conceded that plaintiff did not form a fixed intention to abandon New York forever as her domicile.


 In diversity cases brought under 28 U.S.C. § 1332(a), federal courts are bound to follow the choice of law rules of the forum state in determining the substantive governing law. Klaxon Co. v. Stentor, 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941). See also Day and Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4, 96 S. Ct. 167, 168, 46 L. Ed. 2d 3 (1975); Loebig v. Larucci, 572 F.2d 81, 84 (2d Cir. 1978); Rosenthal v. Warren, 475 F.2d 438, 440 (2d Cir. 1973).

 Prior to 1963, New York had generally resolved choice of law questions arising in tort cases by inflexible reference to the law of the place where the tort occurred. In Babcock v. Jackson, 12 N.Y.2d 473, 191 N.E.2d 279, 240 N.Y.S.2d 743 (1963), however, the Court of Appeals substituted a test which looks to the contacts of the parties with each state involved and the interests of each state in applying its substantive law to the resolution of the controversy. The Court of Appeals later described the change affected by Babcock :


When in Babcock v. Jackson . . . we rejected the mechanical place of injury rule in personal injury cases because it failed to take account of underlying policy considerations, we were willing to sacrifice the certainty provided by the old rule for the more just, fair and practical result that may best be achieved by giving controlling effect to the law of the jurisdiction which has the greatest concern with, or interest in, the specific issue raised in litigation.

 Neumeier v. Kuehner, 31 N.Y.2d 121, 123, 286 N.E.2d 454, 457, 335 N.Y.S.2d 64, 69 (1972) (Fuld, C. J.).

 In Babcock the issue was the applicability of the automobile guest statute of foreign jurisdiction which barred recovery by plaintiffs/passengers against defendants/hosts. New York does not so limit a driver's liability. The Babcock doctrine was further developed and elaborated in a series of guest statute cases. See Dym v. Gordon, 16 N.Y.2d 120, 209 N.E.2d 792, 262 N.Y.S.2d 463 (1965); Miller v. Miller, 22 N.Y.2d 12, 237 N.E.2d 877, 290 N.Y.S.2d 734 (1968); Tooker v. Lopez, 24 N.Y.2d 569, 249 N.E.2d 394, 301 N.Y.S.2d 519 (1969); Neumeier, supra.

 When the interest analysis does not point clearly to the law of any jurisdiction, the law of the place where the tort occurred prevails. Neumeier v. Kuehner, supra, at 128-129, 286 N.E.2d at 457-458, 335 N.Y.S.2d at 69-70; Cousins v. Instrument Flyers, Inc., 44 N.Y.2d 698, 699, 376 N.E.2d 914, 915, 405 N.Y.S.2d 441, 442 (1978). ("It is true that lex loci delicti remains the general rule in tort cases to be displaced only in extraordinary circumstances.")

 Factors to be considered in the New York interest analysis are the domiciles of the parties, the place where the tortious conduct occurred and where the injury was suffered, and the policies behind the substantive laws of the respective jurisdictions. The factors relevant to such an analysis are here dispersed over three jurisdictions. The defendant's conduct occurred in her domicile, Arizona. Plaintiff was injured in Costa Rica, where she resided for several years. Plaintiff is domiciled in New York.

 None of these jurisdictions has a compelling interest in applying its own law. Costa Rica may have an interest in determining rights and liabilities associated with injuries within its borders, but not when neither of the parties is a domiciliary there and when the conduct which its laws permit occurred elsewhere. *fn2" New York has an interest in applying its laws to its domiciliaries, but not when neither conduct nor injury occurred within its borders and when the party seeking protection of its laws is a long-time resident of another jurisdiction. Arizona has no interest in applying its law in favor of a New York plaintiff injured in Costa Rica. *fn3" Since the interest analysis does not point clearly to the law of any jurisdiction, the law of the place where the tort occurred prevails.

 Further, the interest analysis developed in the guest statute cases was intended to apply to conflicts settings involving defenses to and limitations on liability. Where the issue is the standard of conduct, as it is here, rather than the extent of liability, "it is appropriate to look to the place of the tort so as to give effect to that jurisdiction's interest in regulating conduct within its borders, and it would be unthinkable to seek the applicable rule in the law of some other place." Babcock, 12 N.Y.2d at 483, 191 N.E.2d at 284, 240 N.Y.S.2d at 751; Heaney v. Purdy, 29 N.Y.2d 157, 159, 324 N.Y.S.2d 47, 48, 272 N.E.2d 550, 551. Where tortious conduct occurs in one jurisdiction and injury in another, as is the case here, the law of the place of injury applies. Church of Scientology of California, Inc. v. Green, 354 F. Supp. 800 (S.D.N.Y.1973) (libel action).

 Since the alleged injury occurred in Costa Rica, the substantive law of that country controls. Both parties have submitted, pursuant to Fed.R.Civ.P. 44.1, affidavits of Costa Rican attorneys concerning the application of Costa Rican law to the facts of this case. On the basis of those affidavits I find that Costa Rica does not recognize a justiciable claim in tort for the negligent or intentional infliction of mental distress resulting from a letter such as the one written by defendant. Both Costa Rican attorneys agree that the majority of Costa Rican courts have held that only if the communication itself constituted a criminal utterance is an action for damages permitted. While plaintiff's Costa Rican attorney cites criticism of this rule in dissenting opinions and elsewhere, my function here is not to determine what Costa Rican law should be but rather what it is.

 The affidavit of plaintiff's Costa Rican counsel alleges that defendant's conduct violates Article 377 of the Criminal Code, which prohibits "(divulging) facts related to the private life of one person or a family, which, without being calumnious, slanderous or injurious could cause mischief, inconvenience or mortification to said person or family." Defendant's conduct does not come within the scope of that statute, since defendant's letter to plaintiff was not "divulged" by defendant to outsiders. Absent a cognizable claim under the Criminal Code, no cause of action will lie under Costa Rican law.

 Since Costa Rica does not recognize as a tort the infliction of mental distress, as alleged in the complaint, no cognizable claim has been stated.


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