Venue and Consolidation

Grinman v Alamo Rent A Car, Inc., 2010 NY Slip Op 03067 (App. Div., 2nd, 2010)

The Supreme Court did not improvidently exercise its discretion in granting the motion of the defendants Highland Trans Fleet and Manuel Rebelo and that branch of the cross motion of the defendants Alamo Rent A Car, Inc., National Car Rental, Inc., and Inna Grinman which were to change the venue of the action from Kings County to Steuben County where the underlying motor vehicle accident occurred. The affirmations of the defendants' attorneys and supporting evidence sufficiently detailed (1) the names, addresses, and occupations of numerous prospective witnesses, at least one of whom was a State Trooper based in Bath, (2) the facts to which the witnesses will testify at trial, (3) a statement that the witnesses are willing to testify, and (4) a statement that the witnesses would be greatly inconvenienced if the venue of the action was not changed (see Walsh v Mystic Tank Lines Corp., 51 AD3d 908, 909; Lafferty v Eklecco, LLC, 34 AD3d 754, 755; Professional Veh. Leasing v Continuing Dev. Servs., 275 AD2d 313, 314).

KMK Safety Consulting, LLC v Jeffrey M. Brown Assoc., Inc., 2010 NY Slip Op 02927 (App. Div., 2nd, 2010)

In the present action, arising out of a contractual dispute and
commenced in the Supreme Court, Richmond County, the defendants produced
a copy of the subject contract in support of their motion. That
contract recited, inter alia, that the defendant Jeffrey M. Brown
Associates, Inc., was a Pennsylvania corporation, and it further
provided, in relevant part, that "[a]ny dispute between the parties
related to this Contract shall be determined by the Pennsylvania Court
of Common Pleas, Philadelphia County." Contrary to the plaintiff's
contention, the Supreme Court properly granted the defendants' motion to
dismiss the complaint on the basis of documentary evidence containing
this unambiguous forum selection clause.

"A contractual forum selection clause is prima facie valid and
enforceable unless it is shown by the challenging party to be
unreasonable, unjust, in contravention of public policy, invalid due to
fraud or overreaching, or it is shown that a trial in the selected forum
would be so gravely difficult that the challenging party would, for all
practical purposes, be deprived of its day in court" (LSPA Enter.,
Inc. v Jani-King of N.Y., Inc.
, 31 AD3d 394, 395; see Boss v American [*2]Express
Fin. Advisors Inc.
, 6 NY3d 242
, 246; Brooke Group v JCH
Syndicate 488
, 87 NY2d 530, 534; Trump v Deutsche Bank Trust Co. Ams., 65 AD3d
1329
, 1331; W.J. Deutsch & Sons, Ltd. v Charbaut Am., Inc.,
57 AD3d 529
; Koob v IDS Fin. Servs., 213 AD2d 26, 33). The
plaintiff's vague and conclusory assertions that the forum selection
clause is unconscionable and unreasonable are inadequate to defeat the
defendants' motion
(see Tatko Stone Prods., Inc. v Davis-Giovinzazzo
Constr. Co., Inc.
, 65 AD3d 778
, 779; Horton v Concerns of Police Survivors, Inc., 62
AD3d 836
, 836-837; Casper v Pines Assocs., L.P., 53 AD3d 764,
765; Stravalle v Land Cargo, Inc., 39 AD3d 735,
736; LSPA En-ter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394,
395). Similarly, the plaintiff's contentions that its president did not
read the contract and was unaware of its terms prior to signing it are
patently unavailing
(see Gillman v Chase Manhattan Bank, 73 NY2d
1, 11; British W. Indies Guar. Trust Co. v Banque Internationale A
Luxembourg
, 172 AD2d 234).

Richmond Amboy Realty, LLC v 3881 Richmond Ave. Realty, Inc., 2010 NY Slip Op 03098 (App. Div., 2nd, 2010)

In the interests of judicial economy, the Supreme Court providently
exercised its discretion in granting those branches of the plaintiff's
motion which were to remove a summary nonpayment proceeding, pending in
the Civil Court, to the Supreme Court, and to consolidate that
proceeding with the instant action seeking, inter alia, a declaration
regarding the plaintiff tenant's right to be restored to possession of
the premises (see CPLR 602[b]; Pinecrest Natl. Funding, LLC., v
Aatlas-B Props., Inc.
, 68 AD3d 833; Kally v Mount Sinai Hosp.,
44 AD3d 1010).

Jackam v Nature's Bounty, Inc., 70 AD3d 1000 (App. Div., 2nd, 2010)

The plaintiffs commenced this action against the
defendants in November 2004. After some discovery was completed, the
defendants moved in
March 2006 to dismiss the complaint on the ground of forum non
conveniens. The Supreme
Court denied the motion without prejudice to renewal after discovery was
completed.
Accordingly, after discovery was completed, the defendants renewed their
motion to dismiss the
complaint in September 2008 on the ground of forum non conveniens. The
court again denied
the motion. We reverse. "The common-law doctrine of forum non
conveniens
, also
articulated in CPLR 327 (a), permits a court to stay or dismiss [an
action] where it is determined
that the action, although jurisdictionally sound, would be better
adjudicated elsewhere. In a
motion to dismiss on the ground of forum non conveniens, the burden is
on a defendant
challenging the forum to demonstrate relevant private or public interest
factors which militate
against accepting the litigation here. The court's determination will
not be disturbed on appeal
unless the court has failed to properly consider all the relevant
factors"
(Prestige Brands, Inc.
v Hogan & Hartson, LLP
, 65 AD3d 1028, 1028-1029 [2009] [internal
quotation marks and
citations omitted]; see Islamic Republic of Iran v Pahlavi, 62
NY2d 474 [1984], cert
denied
469 US 1108 [1985]; Harleysville Ins. Co. v Ermar Painting
& Contr., Inc.
, 8
AD3d 229 [2004]; Korea Exch. Bank v A.A. Trading Co., 8 AD3d 344
[2004]). 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" (Turay v
Beam Bros. Trucking,
Inc.
, 61 AD3d 964, 966 [2009]). "The court has discretion whether
[or not] to retain
jurisdiction" (Rosenberg v Stikeman Elliott, LLP, 44 AD3d 840,
841 [2007]). The court's
determination will not be disturbed on appeal "absent an improvident
exercise of
. . . discretion or a failure to consider the relevant factors" (Brinson
v Chrysler
Fin.
, 43 AD3d 846, 848 [2007]; see Islamic Republic of Iran v
Pahlavi
, 62 NY2d
474 [1984]; Cheggour v R'Kiki, 293 AD2d 507, 508 [2002]).

Here, even though the defendants are New York residents, their
renewed motion to dismiss
the complaint on the ground of forum non conveniens should have been
granted. The record
establishes that the injured plaintiff ingested Xtreme Lean in Georgia,
and that his alleged injury
and all of his subsequent medical treatment for that alleged injury
occurred in Georgia.
Furthermore, all of the injured plaintiff's treating physicians and his
medical records are located
in Georgia. There are also additional fact witnesses that reside in
Georgia. While the defendants
have not produced affidavits from those witnesses showing that it would
be a hardship for them
to travel to New York to testify, it appears that the plaintiffs have
frustrated the defendants'
efforts to obtain discovery and depositions from those witnesses in
Georgia. This has made it
difficult, if not impossible, for the defendants to produce these
affidavits. Under these
circumstances, since it appears that all or most of the evidence that
will be required from the
defendants would be in the form of documents, and since the defendants
have agreed to be
subject to subpoena in Georgia, which appears to be available as an
alternate forum, the Supreme
Court improvidently exercised its discretion in denying the defendants'
renewed motion to
dismiss the complaint on the ground of forum non conveniens
(see
Prestige Brands, Inc. v
Hogan & Hartson, LLP
, 65 AD3d 1028 [2009]; Brinson v Chrysler
Fin.
, 43 AD3d
846 [2007]; Cheggour v R'Kiki, 293 AD2d at 508; Evdokias v
Oppenheimer
,
123 AD2d 598 [1986]; see also Matter of Henry v Skratt, 11 AD3d
691 [2004]; cf.
Harleysville Ins. Co. v Ermar Painting & Contr., Inc.
, 8 AD3d
229 [2004]).

In order to assure the availability of a forum for the action,
our reversal and granting of the
defendants' motion to dismiss the complaint pursuant to CPLR 327 is
conditioned on the
defendants stipulating to waive jurisdictional and statute of
limitations defenses
(see
CPLR 327 [a]; Turay v Beam Bros. Trucking, Inc., 61 AD3d 964
[2009]).

The bold is mine.

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