Appeal from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), entered August 18, 2008 in a personal injury action.
The opinion of the court was delivered by: Fahey, J.:
PRESENT: MARTOCHE, J.P., CENTRA, FAHEY, PERADOTTO, AND GREEN, JJ.
The order denied defendant's motion seeking application of the substantive law of Indiana and granted plaintiffs' motion seeking application of the substantive law of New York.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, defendant's motion is granted and plaintiffs' motion is denied.
The primary issue before us on this appeal is whether Supreme Court erred in granting plaintiffs' motion for an order applying the substantive law of New York in this personal injury action. We conclude that the court should have determined that the substantive law of Indiana applies to this action, and we thus conclude that the order should be reversed and that defendant's motion seeking that relief should be granted.
In May 2001, Doug Burnett (plaintiff) was injured when he was struck by a steel coil that fell from a hook manufactured by defendant and owned by his employer, New Millennium Building Systems, LLC. Defendant is a New York corporation, plaintiff was an Ohio resident, and the accident occurred in Indiana. After discovery was nearly completed, defendant moved for an order applying the substantive law of Indiana to this action. Plaintiffs responded by moving for an order applying the substantive law of New York, and sought alternative relief in the form of an order precluding defendant from asserting any nonparty defenses with respect to plaintiff's employer (see Ind Code § 34-51-2-14). The court granted plaintiffs' motion seeking application of the substantive law of New York.
We begin this choice of law analysis by addressing two ancillary issues. First, as defendant correctly contends, the situs of the tort in this matter is the place of the injury, rather than the location where the allegedly defective product was manufactured (see e.g. Schultz v Boy Scouts of Am., 65 NY2d 189, 195-197; Devore v Pfizer Inc., 58 AD3d 138, 141, lv denied 12 NY3d 703; cf. Kniery v Cottrell, Inc., 59 AD3d 1060, 1061). Indeed, plaintiffs have conceded this issue by contending that the third of the three choice of law rules set forth in Neumeier v Kuehner (31 NY2d 121, 128) governs our analysis in this matter.
Second, because New York is the forum state, i.e., the action was commenced here, "New York's choice-of-law principles govern the outcome of this matter" (Padula v Lilarn Props. Corp., 84 NY2d 519, 521). Plaintiffs' contention that Indiana courts would have applied New York ...