Ziska v Bank of Am., N.A.

Ziska v Bank of Am., N.A. 2012 NY Slip Op 07066 Decided on October 23, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 23, 2012
Tom, J.P., Andrias, Saxe, DeGrasse, Manzanet-Daniels, JJ.
8349 101674/12

[*1]James A. Ziska, et al., Plaintiffs-Appellants,

v

Bank of America, N.A., et al., Defendants-Respondents.




Law Office of Carl E. Person, New York (Carl E. Person of
counsel), for appellants.
Bryan Cave LLP, New York (Suzanne M. Berger of counsel),
for respondents.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered on or about April 24, 2012, which, in this action involving allegedly fraudulent lending and loan modification practices, granted defendants' motion to dismiss the action on the ground of forum non conveniens, without prejudice, unanimously affirmed, without costs.

The court providently exercised its discretion in dismissing the action, given that plaintiffs' tort and breach of contract claims are based on real property located in California, the claims lack a substantial nexus to New York, California law governs the claims, and the documentary evidence and witnesses are primarily located in California and states other than New York (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479 [1984], cert denied 469 US 1108 [1985]). That defendants may have business locations in New York, and that plaintiffs' note and deed of trust were eventually securitized by a New York trust, are insufficient to create a "factual connection between New York and the dispute" (Shin—Etsu Chem. Co., Ltd. v ICICI Bank Ltd., 9 AD3d 171, 176 [1st Dept 2004]; see Avery v Pfizer, Inc., 68 AD3d 633, 634 [1st Dept 2009]).

We have considered plaintiffs' remaining arguments and find
them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 23, 2012

CLERK