O'Connor v Port Auth. of N.Y. & N.J.
Annotate this CaseDecided on July 12, 2006
Supreme Court, Bronx County
John O'Connor and Rhonda O'Connor, Plaintiffs,
against
The Port Authority of New York and New Jersey, Defendant.
7927/06
Alexander W. Hunter, J.
Upon the foregoing papers, the motion by defendant for an order pursuant to C.P.L.R. §327(a), dismissing plaintiff's complaint on grounds of forum non conveniens, is granted.
The cause of action arises out of injuries sustained by plaintiff John O'Connor on November 22, 2005 when he was caused to trip and fall while descending an escalator at Terminal A of Newark Liberty International Airport in Newark, New Jersey.
Defendant contends that plaintiff's action should be dismissed on grounds of forum non conveniens because plaintiff are residents of Texas and the accident occurred at the airport in [*2]Newark, New Jersey. Defendant, is a bi-state agency of New York and New Jersey, however, the facility involved is a New Jersey airport terminal owned by the City of Newark, New Jersey and leased from the City of Newark to the Port Authority.
Moreover, defendant asserts that there are two relevant parties which should be named as defendants in this cause of action. The first party is United Airlines who was the "principal or custodial tenant" responsible for maintaining Terminal A at Newark Airport. The second party is Schindler Elevator Corporation, whose Morristown, New Jersey office, defendant claims, was contracted by United Airlines for its elevator and escalator maintenance, inspection and repair services at Newark Liberty International Airport.
Defendant maintains that all of the defendant's witnesses are in New Jersey, the hospital where plaintiff was taken by ambulance, Trinitas Hospital, is in New Jersey so the emergency room records are in New Jersey, and Schindler Elevator Corporation's records related to maintenance and repair of the subject escalator are located in New Jersey. Moreover, defendant contends that plaintiff's claim would be subject to New Jersey law. As such, defendant argues that there is no nexus to keep this action in New York.
Plaintiffs oppose the motion and assert that they did not know United Airlines was the custodial tenant of Terminal A at Newark Airport or that Schindler Elevator Corporation was the company engaged by United Airlines to perform maintenance on the subject escalator, until they received defendant's moving papers. Plaintiffs join United Airlines and Schindler Elevator Corporation to this action as of right, pursuant to C.P.L.R. §1003 and serve a "verified Amended Answer" along with their opposition papers, as of right. The court notes that plaintiffs assert that they served a "verified Amended Answer" (Aff. in Opp., p.2, para. 3) as of right, when in fact, what they served is a Verified Amended Complaint.
Plaintiffs assert that both Schindler Elevator Corporation and United Airlines are authorized to do business in New York and that venue can be placed in Bronx County pursuant to Unconsolidated Laws §7106. Plaintiffs also cite to one Miscellaneous Reports case from Bronx County. Plaintiffs argue that the only non-party witness, Trinitas Hospital, is located in New Jersey but that no witnesses will be called from that entity. Plaintiffs maintain, citing to case law, that plaintiffs have the right to choose their forum and that a plaintiff's choice of forum should rarely be disturbed.
C.P.L.R. §327(a) states, "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." This court finds that there is no nexus between this cause of action and the state of New York and the matter should properly be litigated in New Jersey.
The only connection between this case and the state of New York that plaintiffs could demonstrate is that the defendants, as corporations, all have offices in New York. However, the [*3]accident occurred in New Jersey, the plaintiffs are residents of Texas, and the defendants have offices in New Jersey as well as New York. Moreover, the emergency room to where plaintiff was taken, was in New Jersey, and the defendants' witnesses and all pertinent documents are in New Jersey. The proper choice of law would also be New Jersey law.
The case cited by plaintiffs in support of its opposition, Caamano v. Port Authority of New York and New Jersey, 188 Misc 2d 321 (Supreme Ct., Bronx Cty 2001), is not applicable to the case at bar. In that case, the plaintiff and cause of action occurred in the state of New York (Queens County) and the Port Authority moved to change venue from Bronx County to Queens County on the ground that it could not be subject to suit in Bronx County. Pursuant to McKinney's Unconsolidated Laws, section 7106, the Port Authority is deemed to be a resident of each county in New York. However, in the case at bar, defendant's motion is not one to change venue from one county in New York to another nor is defendant seeking to dismiss the cause of action on grounds that the Port Authority is not a resident of Bronx County. Rather, defendant's contention is that the proper forum for this case is New Jersey.
In Economos v. Zizikas, 18 AD3d 392 (1st Dept. 2005), the court stated, "Among the factors a court must weigh in determining whether an action should be dismissed on the ground of forum non conveniens are the residency of the parties, the potential hardship to proposed witnesses, the availability of another forum, the situs of the underlying accident, and the burden upon the New York courts, with no one single factor controlling." (Citations omitted). The court ruled that New Jersey was the proper forum even though the accident took place in New York. Furthermore, "New York courts are not compelled to retain jurisdiction in any case which has no substantial nexus to New York." (Citations omitted). Wentzel v. Allen Machinery, Inc., 277 AD2d 446 (2nd Dept. 2000).
In the case at bar, the accident took place in New Jersey, the defendants all have offices in New Jersey, the witnesses are based in New Jersey and the plaintiffs reside in Texas. There is no substantial nexus to New York. The fact that the defendants may have offices in New York is insufficient for the cause of action to remain in New York and this action will be better adjudicated in New Jersey. Moreover, plaintiffs have not demonstrated that their witnesses will be inconvenienced in any way by the forum change.
Defendants also point out that there will be no prejudice to the plaintiffs by the forum change because there is no statute of limitations defense. The incident occurred on November 22, 2005, therefore, plaintiffs have adequate time within which to file a cause of action in New Jersey.
Accordingly, defendant's motion to dismiss plaintiff's cause of action is granted.
Movant is directed to serve a copy of this order with notice of entry upon all parties within twenty (20) days of the date of the entry of this order and file proof thereof with the clerk's office. [*4]
This constitutes the decision and order of the court.
Dated July 12, 2006
J.S.C.
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