CPLR R. 327

New York courts are not compelled to retain jurisdiction over any case which does not have a substantial nexus to New York (see Silver v Great Am. Ins. Co., 29 NY2d 356, 361; Wentzel v Allen Mach., 277 AD2d 446, 447; United Jersey Bank v Weintraub, 240 AD2d 656; Dawson v Seenardine, 232 AD2d 521; Stamm v Deloitte and Touche, 202 AD2d 413; Manaster v Northstar Tours, 193
AD2d 651, 651-652). The doctrine of forum non conveniens, which
embodies this principle, is codified in CPLR 327(a): "When the court
finds that in the interest of substantial justice the action should be
heard in another forum, the court, on the motion of any party, may stay
or dismiss the action in whole or in part on any conditions that may be
just. The domicile or residence in this state of any party to the
action shall not preclude the court from staying or dismissing the
action."

On a motion to dismiss on the ground of forum non conveniens,
the burden is on the movant to demonstrate the relevant private or
public interest factors that militate against a New York court's
acceptance of the litigation (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479, cert denied 469 US 1108; Stravalle v Land Cargo, Inc., 39
AD3d 735, 736). Among the factors the court must weigh are the
residency of the parties, the potential hardship to proposed witnesses
including, especially, nonparty witnesses, the availability of an
alternative forum, the situs of the underlying actionable events, the
location of evidence, and the burden that retention of the case will
impose upon the New York courts. No single factor controls, so that the
fact that a particular litigant resides in New York is not dispositive (see Smolik v Turner Constr. Co., 48 AD3d 452, 454; Kefalas v Kontogiannis, 44 AD3d 624, 625; Brinson v Chrysler Fin., 43 AD3d 846, 848; Stravalle v Land Cargo, Inc., 39
AD3d at 736). A court's determination will not be disturbed on appeal
unless that court failed to properly consider all the relevant factors
or improvidently exercised its discretion in deciding the motion (see Smolik v Turner Constr. Co., 48 AD3d at 454; Rosenberg v Stikeman Elliott, LLP, 44 AD3d 840, 841).

Here, even accepting that Turay is a resident of New York, the motion should have been granted (see Smolik v Turner Constr. Co., 48
AD3d at 453). The record establishes that the collision occurred in
North Carolina, and police and medical personnel from that state were
involved in the case and will likely be necessary and important
witnesses (see Cheggour v R'Kiki, 293 AD2d 507, 508). Moreover,
there is no record evidence, but only conclusory assertions, as to the
involvement of New York physicians (see Brinson v Chrysler Fin., 43
AD3d at 848). Also, the defendants have little or no connection to New
York. Further, the burden of adjudicating the case in New York, given
that North Carolina has the most significant nexus to the case,
militates against retaining the action in this state. Under the
circumstances, the Supreme Court improvidently exercised its discretion
in denying that branch of the defendants' motion which was to dismiss
the case on the ground of forum non conveniens.
[*3]

In order to assure the
availability of a forum for the action, our reversal and granting of
the branch of the defendants' motion which was to dismiss the complaint
pursuant to CPLR 327 is conditioned on the defendants stipulating to
waive jurisdictional and statute of limitations defenses as indicated
herein (see CPLR 327[a]; Cheggour v R'Kiki, 293 AD2d at 507).