The opinion of the court was delivered by: AZRACK
AZRACK, United States Magistrate Judge:
By Order dated June 12, 1995 the Honorable Frederic Block referred the above captioned action to the undersigned to report and recommend on defendant's motion to transfer venue. For the reasons stated below it is hereby respectfully recommended that this action be dismissed pursuant to New York Civil Practice Law and Rules § 202 as untimely.
This action arises out of a September 18, 1993 accident aboard American Airline's Flight 1290, which originated in San Juan, Puerto Rico and terminated at John F. Kennedy International Airport (hereinafter "J.F.K. Airport"). Plaintiff, Teresa Callazo, was a passenger aboard Flight 1290 and claims that during the course of that flight she was injured when the plane experienced severe turbulence. (Compl. P 14). Plaintiff Camilo Santana, Teresa Callazo's husband, has also alleged a loss of services and companionship due to his wife's injuries. (Compl. P 19).
Specifically, plaintiffs' claim that defendant was negligent in letting Flight 1290 fly into a severe storm.
In its answer, defendant raised numerous affirmative defenses, inter alia, the doctrine of forum non conveniens, improper venue pursuant to 28 U.S.C. § 1404 (1994) and the statute of limitations. No discovery was ever conducted.
In the present motion, defendant initially sought to have this action transferred to Puerto Rico where a similar action has been commenced arising out of the same flight. Defendant argued that this action should be transferred to Puerto Rico since it "might have been brought" there pursuant to 28 U.S.C. § 1404, and because many of the witnesses, including both plaintiffs, reside in Puerto Rico.
Initially, and for some time after the filing of defendant's papers, plaintiffs maintained that their actions accrued while Flight 1290 was over New York State. If this were the case, then the borrowing statute would not apply. However, upon the affidavit of the pilot of Flight 1290, Captain Chritten P. Benoit, swearing that the turbulence occurred over international waters, plaintiffs agreed to stipulate that the turbulence did not occur over New York State.
Following this stipulation and the cancellation of a hearing on the location of the incident, plaintiffs' counsel requested that he be allowed to submit additional documentation demonstrating contacts that his clients had with New York State at the time of the incident. Court gave plaintiff three weeks to produce such documentation. No documentation was ever received by this Court.
It is upon these facts that the present motion will be considered.
As defendant's motion to dismiss this action pursuant to CPLR § 202, New York's borrowing statute, is dispositive, this Court will not address defendant's other arguments regarding transfer of the action to Puerto Rico.
Since jurisdiction is based upon diversity of citizenship, this Court is bound to apply the substantive law of New York, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), including the applicable New York conflict of laws rules, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941), and the forum state's applicable statute of ...