Ballon Stoll Bader & Nadler, P.C., New York, N.Y. (Vano I. Haroutunian and Michael H. Du Boff of counsel), for appellants.
Polsinelli Shughart P.C., New York, N.Y. (Jason A. Nagi, Troy B. Froderman, pro hac vice, and Megan H. Tracy, pro hac vice, of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, SHERI S. ROMAN, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Walker, J.), entered September 21, 2011, which granted the defendant's motion to dismiss the action on the ground of forum non conveniens pursuant to CPLR 327(a).
ORDERED that the order is modified, on the facts and in the exercise of discretion, by adding a provision thereto conditioning the grant of the defendant's motion on the defendant stipulating (1) to accept service of process in a new action commenced by the plaintiffs in the United Kingdom, France, or the United Arab Emirates upon the same causes of action as those asserted in the instant complaint, or, in the alternative, at the choice of the individual plaintiffs, to accept service of process in a new action or actions commenced separately by the plaintiffs in the United Kingdom, France, or the United Arab Emirates upon the same causes of action as those asserted separately on behalf of the individual plaintiffs in the instant complaint, and (2) to waive any defenses, including that of the statute of limitations, which were not available in New York at the time of the commencement of this action, all provided that the new action or actions are commenced within 30 days after service of the stipulation upon the plaintiffs; as so modified, the order is affirmed, with costs payable to the defendant; in the event that the defendant fails to so stipulate within 60 days after service upon it of a copy of this decision and order, then the order is reversed, on the facts and in the exercise of discretion, with costs payable to the plaintiffs, and the motion is denied.
The doctrine of forum non conveniens permits a court to stay or dismiss an action when, although it may have jurisdiction over a claim, the court determines that "in the interest of substantial justice the action should be heard in another forum" (CPLR 327[a]; see Koskar v Ford Motor Co., 84 A.D.3d 1317, 1317-1318). A defendant bears the burden on a motion to dismiss on the ground of forum non conveniens to "demonstrate relevant private or public interest factors which militate against accepting the litigation" (Islamic Republic of Iran v Pahlavi, 62 N.Y.2d 474, 479, cert denied 469 U.S. 1108; Koskar v Ford Motor Co., 84 A.D.3d at 1318 [internal quotation marks omitted]). "On such a motion, the Supreme Court is to weigh the parties' residencies, the location of the witnesses and any hardship caused by the choice of forum, the availability of an alternative forum, the situs of the action, and the burden on the New York court system" (Tiger Sourcing Ltd. v GMAC Commercial Fin. Corporation-Can., 66 A.D.3d 1002, 1003; see Koskar v Ford Motor Co., 84 A.D.3d at 1318). "No one factor is dispositive" (Tiger Sourcing Ltd. v GMAC Commercial Fin. Corporation-Can., 66 A.D.3d at 1003; see Islamic Republic of Iran v Pahlavi, 62 N.Y.2d at 479). "The Supreme Court's determination should not be disturbed unless the court improvidently exercised its discretion or failed to consider the relevant factors" (Koskar v Ford Motor Co., 84 A.D.3d at 1318; see Islamic Republic of Iran v Pahlavi, 62 N.Y.2d at 479).
Here, the plaintiff Thomas Boyle is a resident of the United Kingdom, and the plaintiff Elodie Nogues is resident of France. The complaint alleges that Boyle and Nogues contracted Legionnaire's disease during separate stays at a hotel located in Dubai, United Arab Emirates, which is owned by the defendant. The complaint seeks to recover damages under theories of breach of contract and negligence, and asserts a derivative cause of action on behalf of Thomas Boyle's wife, the plaintiff Catherine Boyle, who is also a resident of the United Kingdom. The defendant is a Maryland corporation and is alleged to have its principal place of business in White Plains, the sole connection in this case to the State of New York. Under the circumstances of this case, the Supreme Court, considering all of the relevant and appropriate factors, providently exercised its discretion in granting the defendant's motion to dismiss the action on the ground of forum non conveniens pursuant to CPLR 327(a) (see Koskar v Ford Motor Co., 84 A.D.3d at 1318; Tiger Sourcing Ltd. v GMAC Commercial Fin. Corporation-Can., 66 A.D.3d at 1003).
However, in order to assure the availability of a forum for the action, the dismissal must be conditioned upon the defendant stipulating to waive jurisdictional and statute of limitations defenses in the United Kingdom, France, and the United Arab Emirates, as indicated herein (see CPLR 327[a]; Turay v Beam Bros. Trucking, Inc., 61 A.D.3d 964, 967).
DILLON, J.P., CHAMBERS and ROMAN, JJ., concur.
AUSTIN, J., dissents, and votes to reverse the order and deny the defendant's motion, with the following memorandum:
On this appeal, the plaintiffs argue that the Supreme Court improvidently exercised its discretion in granting the defendant's motion to dismiss the action on the ground of forum non conveniens. The majority modifies the order only to the extent of conditioning the dismissal of the action upon the defendant stipulating to accept service of process in a new action commenced collectively by the plaintiffs in the United Kingdom (hereinafter the UK), France, or the United Arab Emirates (hereinafter the UAE), or separate actions commenced individually by the plaintiffs in any of those jurisdictions. Inasmuch as there does not appear to be a viable alternate jurisdiction in which the plaintiffs can fairly litigate and the solution offered by the majority appears to be illusory, I respectfully disagree with the majority and vote to reverse.
In determining a motion to dismiss based upon forum non conveniens, the court must weigh various factors which include: (1) the residency of the parties; (2) the potential hardship to proposed witnesses, "including, especially, nonparty witnesses"; (3) the availability of an alternative forum; (4) the situs of the actionable events; and (5) the burden which will be imposed upon the New York courts (Matter of Oxycontin II, 76 A.D.3d 1019, 1021 [internal quotation marks omitted]; Jackam v Nature's Bounty, Inc., 70 A.D.3d 1000, 1001 [internal quotation marks omitted]; Turay v Beam Bros. Trucking, Inc., 61 A.D.3d 964, 966). While there is " no single factor controlling'" (Smolik v Turner Constr. Co., 48 A.D.3d 452, 453, quoting Kefalas v Kontogiannis, 44 A.D.3d 624, 625), I find that the absence of a meaningful, viable alternate forum for these plaintiffs to fully and fairly adjudicate their claims to be most compelling and should have resulted in the Supreme Court denying the defendant's motion to dismiss this action on the ground of forum non conveniens.
On January 30, 2009, a world-renowned cricket statistician and commentator, William Frindall, died of Legionnaire's disease less than two weeks after his stay at the Westin Dubai, a hotel located in the UAE that is owned by the defendant. There is no dispute that the outbreak of Legionnaire's disease occurred at the Westin Dubai and that the plaintiffs contracted it there.
The defendant, Starwood Hotels & Resorts Worldwide, Inc., a Maryland corporation, is one of the world's largest hotel companies and has its global headquarters located in White Plains, New York. As the parent of Westin Hotels & Resorts, the defendant publically associates the Westin Dubai with the Westin brand and its own reputation. In this way, hotel guests reasonably expect that the defendant, Westin, and its ...