Goodwin v Cirque du Sollei, Inc.

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Goodwin v Cirque du Sollei, Inc. 2012 NY Slip Op 31324(U) May 14, 2012 Supreme Court, New York County Docket Number: 117151/09 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNED ON 511812012 [* 1] ~ W, IndexNumber: 1't7151/2(MlQ GOODWlN,JOHN I SEQUENCE NUMBER :001 SUMMARY JUDGMENT F - . _ -. - .FILED [* 2] Supmme Court of the State o New Yo& f County of New Yo&: Part 10 __ DecklonlOrder John Goodwin, Index No.: 117151/00 Seq. No. : 001 Phlntlff, Pwont against- Pori. Judith J. J.S.C. Cirque du Soliel, Inc., and Cirque du Solfel America Inc., Defendants. <- Redbation, as raquirad by CPLR 2219 [a], of the papers conaMered in the review of thts (these) motion(s): Papers Numbred ... 1,2 Defs nlm [3212] wl BVK afArm, MR m ,exhs. . . . . . . . . d PWs opp. w/ KFM affirm, JG aMd, exhs [wp back]. .... . . 3,4 DePs reply wl6VK amm, GL affid, MR affid, exhs. ........................... 5 PWs x-mo and further opp [strlke] w/ KFM afhn. ............................ 6 Defs opp. w/ BVKafflrm. .............................M ..1.8.2M2....... 7 Y Pttf a reply w/ KFM affirm. ............................................... 8 Transcript. . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . N E W . Y ~ ~ ~ . . . . . . . . 9 F :1::L: : D. E - -* - P - I - Hon. Judith J. Gmche, J.S.C.: Upon the fomgalng papers, the decision and order of the coud is as Ilollows: This adon arlses from a negligeme dalm brought by John Goodwln ( plaintm or Goodwln~against Cirque du Soliel, Inc. (Wrque ) and Cirqua du Soliel America Inc. ( Clrqusherica~ (collecthrely defendants ). Defendanta bring thls motionto dismiss the complaint pursuantt CPLR 53212 (summary judgment) and 5327 (inconvenient foonrm). o Plaintiff opposesthe defendants motion and cras8-movw to strike the answer. Issue has been joined. Summaryjudgment rellaf I ,therefore, available. CPLR 5 3212; s CQn, AD.2d 42 [lst Dept. 20011. 285 [* 3] Summary of the Fadm Plalntlff is a Mizen of tha United Kingdom who lives In New York. Begfnnlng In 7 995, plaintiffwas employed by Cirque, a Canadian m p a n y headquartered In Montreal and registered to do business in New York State. Cirque h e r b was organkd under the laws of the State of Delaware and is rngistered to do buainess in New York a8 well. Plalntmworkad at Cirque until such time as he began to work for Cirque Amerlca as B Directorof Production for a ahow known as "Quidam."As a Director of Production far Quldarn, plaintlff would travel with the show while It was on tour, including when It was touring in Asia. While Quldamwas on tour in Shanghai, China, plalntHTclalmshe received an alactrical shock while working in a production support office for Quidam. On a rainy June 28,2007, plainw daims that he was workfng In Shanghai, when his office began to flood. According to p l a l M , he began to mmove items from the flwr to wold their getting wet, and, as a rwsuit, he received an electrical shock when ha Mod to move an alectrlcal distribution box. Plaintiff was driven to the Shanghai East lntemetlonal Medical Centerwham he received medical treatment. FromAugust 2007 on, plaintiff has treated at facilities in Ireland, at the Johns Hopklns Medical Center, in Maryland, its sister hospttal, Clinica La8 hnde8, in Santiago, Chile, Mt. Sinai and SUNY haspitais I New York. n Plaintiff does not presently work and I8 out on sick leave from employment with defendants. He commenced thb action in New York County In December of 2009. Defendants have interposed an answr, denying all daims. In their moving papen, defendants claim that this action must be dismissed as a matter of law: (1) If New York law applies, because the inatant action Is precluded under [* 4] New York s Workers Compansakn Law, and (2) if New York law does not apply, h u e a of forumnon conveniens. Plalntlff oppoeres the motion. He abo ms8-movea to either strike the reply, because p1alntif-fclaims that the defendants raised 8 new Issue regardingwhether plaintiff has a New York residence or to threat the crowmotion as a sur-reply. Defendants 0PP-d. Dlrcuulon In deciding whether the defendan& are entitled to the grant of summary judgment In thefr favor, the court considers whether they have tendered sufflclent evidenoe to eliminate any material iaauas of fact from t l caw. E.G Winearad v. New Yak Unh. hs Med,, 04 N.Y.2d 851,853 [1985]; &&6rrnan v, Cltv of Nsw York , 4 9 N.Y. 2d 557, 562 (10801. if met, the burden then shifts to plalniM who must then demonstrate the exhtenca of a triable iaaue of fact in order to defeat these motions. Ahram v. P H~OSP,68 N.Y.2d 320,324 [1986];&kernan m v. Cltv of New Yo&, supra. When an lsaua of law is raised In connection with 8 motion for summary judgment, the court may and should msolve it without the need for a testimonial hearing. See Jilndss v. W&, 303 A.D.2d 459 [2d Dept 20031. Forum Non Conveniens The plalntlffs choke of forum ia entitled to great deference. However, a court may stay or dlsmlss an action, in whole or in part, when, In the Intamat of aubtantial justice the While the Issue of whether the laws of New York apply to this case Is promaturn, New York courts would be perfectly capable of and would not be unduly burdened by applying the law of a foreign Jurisdiction, should the need artso. SSS Yoahida Print. Co. v Aiba 213 A.D.2d 275 [1995]. [* 5] action should be heard in another forum." CPLR 9327, i c m b l i c of Iran v. Pahbvi, m 62 N.Y.2d 474 { 1884) ced den. 489 US 1108 [1f ] M . doctrine I based upon qustice, The s fairness and convenienoe" ( I Q & citing-8 v Hertz CornD., A.D.2d 31I, [lst Dept 20031 305 312 v. Dobson, 135 A.D.2d 390,391 [lst Dept 198711, and the burden is on the party challenging the forum to demonstrate that the action would be beat adjudicatad slimwhere v Herb CornD,, supm, dtlng J&mk Rseublk of Iran v. Fghhyl, supra. See also W e c Contr&&~nAIS v. Tumar Stainer Inti. SA,8 A.D.3d 1 [l st Dept. 20041). Unless the balance is Hstrongly favor of the defendant, the plaintis choice of forum in should rarely ba disturbed." Watewvs W. Br v. a - I 174 A.D.2d 324,327 [lst k p t 20061. Among the factom to be considered are the residence of the parties, the location of the various witnesses, where the transaction or event gMng rise to the cause of action occurred, the potentialhardshipto the defendant in IMgatlngthe c w In New York, and the 8 availability of an alternative farum. Grlple v Hertz Corn,, supm; 888 v. Pahlavi, supm. A.D.3d 1 [Ist Dept. 20041; Ghose v. CNA w 2007; -1 A/S v. T See also Jtna e o Ins. Co.v. Garlock SealinnTee= No one of these factors is controlling or decisive. m Inn. S . L 6 m,43 A.D.3d 656 [lst Dept e Co. ,23A.D.3d 287 [lst DepL 20051. Repirbllc of Iran v. P a h b supra. Defendanta claim that pIalntm brought the Instant suit agalnst Cirque and Cirque Amerlca fn New York, desplte p l a l M s allsgd accident and injuries murring In Shanghal, Chlna. Defendants point out that Cirque, a Canadian corporation, Cirque America, a Delawam corporation, and plainti, a citizen of the Unlted Kingdom are all [* 6] foreign to lew York. Defendants further claim that almost all of the wftnesses BIB locate( outslde of the State of New York, with the possible exception o plaintiff and some doctors. f Defendants dalm that the accident and the subcontractors that bulit the stnrcturs am located In Shanghal. The residency of the parties, although a consfderatlon, is one, but only one, factor 45 A.D.3d 338, 340 [lst that may show lnconvenknce. - I Dept. 20071; Bank m H p a o - ,26 A.D.3d 286,207 [1 st Dept. 20081. Pblntiff maintaineda presence In New York rm 2007 through, at least, f o 2011.z He evidenced hls connection to New York and his intent to return to 'NYC fbr good sometime early 2009" when discussing scheduling anointrnenb with a doctor at SUNY. See, PHfs x-mo and further opp, Exh. 13. Although plalntlff b a &ken of the United Kingdom, defendants are authorized to do businasa hare, accepted sanrlca in New York, and are, themfora, capable of being sued In New York. Furthermore, defendants are corporatlona operating not only In New Yo&, but globally, and may be called upon to Iltfgate clalrns wherever they engage In thelr business. Plalntlff on the other hand, has been on medical leava from work with the defendants and will bear ~l greater burden If this m e is transferred elsewhere. Other arguments that this case will burden the New York courts or be a burden to the defendant As a preliminary matter, the court rejects defendants challenge of phinWs designation of venua In New York. Where the complaint was served wlth a summons, and the complaint made dear the basls of the designated venue,plalntiffa failure t have the summons s o m a basis for the deslgnated venue tS not a Jurlsdlchnaldefect. CPLR 5 305; Archer v. A a h PharmaceuticalProdm. Inc., 133 Mirrc.2d 804 (Sup.Cf.N.Y.Co. 1986); m e v. Long I s b d R.R., 143 Misc.2d 663, (Sup.CtN.Y.Co. lg89). [* 7] to defend are unpersuasivs. The defendants have their employees scattered in almost every continent, no other juriadictbn would be more convenient for the wilnesm, and with the advent of technofogy may not be overly burdened in producing their WIIP~OYSSB as wttnasaas. Despite tha Pdthat plaintiff has treated in Jurlsdletlonsother than New York, a the presence of plaintiffs physicians and medical records (Mt. Slnal and SUNY) In New York further support that New York Is an appropriate forum for the litigation of plainWs claim. After welghing the arguments in favor of and against dismissing thia adan, the coub decision is that basad on the evidence aubmitted, New York ia not an Inconvenient forum for this dispute and there is no reason to dbmlas thh case simply because the tort occurred In Shanghai, Chlna. It is not dear that another venue & a t that would sfgnlficanflymakethe litigation of this claim any easler, nor would keaplng t l ma?in New hs York make it any more complicated or be unduly burdensome to the New Yo& courts, or the parties, Sea jsiarnicJ&publi c v Pahlavi, supra. Moreover, it I clear that the defendants are gullty o laches. Having participated In s f the action for quite an extended period of the, over three (3) years, before moving to dlarniss, the court will not allow defendants to claim that New York forum. b c k v R is an inconvenient m Co.. kl A.D.2d 629,631 [Zd Dept. 198gI;C o r i a 151 B b s o m supm. Havlng fallad to prove that thls caw must be dismissed because this isan Inconvanlent forum, thfs portion of the defendants motion is denled. on b w Under New York s Workers Cornpensatlon Law (YNCL )the IIabilityof an employer [* 8] shall be exclusive and in place of any other llability whatsmver whenever an employee sustains Injury srisjng out of and in the course of the employment without regad to fault as a cause d the injury. In this a 8the dsferidanta clalm that WCL 51 1 Is a bar to the 8 plaintiffs action. Although generally the case, an exception ha8 been cawed out where: "an employer falls to obtain Workers' Compensationwverage, [the legielature] obviously reasanlng that notwithstanding the strong policy toward the exclusMty of the m d y [ d o n 1.11, an employer whlch does not hrHlll it6 obligations under the stgtute should not enjoy its benefits. Thua, section 11 also provides, if an employer faila to 88cum the payment of mpanaatlon lbr hb injumd empbyees an injured employee may, at his optlon, elect to daim compensation under this chapter, or to malntain an actiin in the courts for damages on account of such injury. The effectof the statute Is, to an extent, deliberately puntthre, since the derelict employer subjects b t f to personal and unlimited liablllty for Is failure to obtain t coverage.' m e v T o m , 120kD.2d 2 8 3 , 2 W 5[lst Dept. 19881 [internal citations and quotetian omitted]; m afm e 41 N.Y.2d 219,222 [1978];Terrvv Naurice w F % . D . 3 d 328 [lst Dept 20081. I Defendants have, failed to establish a prima fade c8se that they are entitled to summary judgment dismissing this a388 based upon New York's WCL. They have not prodded sufficient evidence to establhh, Mer all4 that defendants had a workers' compensation policy, that the plaintiff and his injurieswere covered by such policy, and that plainttffs Jobcategory was covemd by workers' compensation law. Furthermore, plaintiff ha3 r a l d sufflciant isaues of fact regardlng whether such a policy existed. PlalntJff has provided wmpondence between himself and other Clrque employees. Of particular note, is the correspondence between plaintiff and Richard Imbeau (Pit's opp, Exh. 12,13). The correspondence explained that [* 9] "At the time of your injury in Shanghai, your coverage w618 provIdd by ClGNA international for your personal and occupatlonal matters. Not all territories mandate or require workers comp type coverage. When offered, such coverags limits h l f within the country, if ever he could be covered under workers compensation, he would need to remain in the country to remain covered. However the duration of his visa or work permit doaa not allow hlm/hsrto stay therefom he cannot remain covered." (Ptt's opp, Exh. 13, pg. 2) Mr. Imbeau's amall want on to explaln that "allnon resident workers working for a Quebec m p a n y out of Quebsc cannot be covered under the Quebec's workers s compensation. That f why it has been [Cirque's] choice to provide non occupatlonal and occupational coverage across all terrltorlea in order to ensure consistent protecton to toudng employees notwtth8tandlngthe torttory or local requlremants. In t l partlcular case, this provMsr allowed receiving trealment hs in various intemablonal treatment centem and then to the US to eesk medical attention & treatment. Such occupetional coverage is not the same thing as workers compensation. ...to recap, ...you should notexpactworkem'comp[snsatlon] to take over."J&(Plfs opp, Exh. 13, pa. 2) lemphasls added.] Bawd on the foregoing, tha court find8 that defendants have falled to establlsh a pdme f8de case that they are entitled to summary judgment dismissing this case based on New York's Workers' Compensation Law. In any ewnt, plaintiff has raised a material issue of fact whather worker's compensation coverage was applicable to plainw or whether itwas available. A fatlura to maintain coverage, bglng one of the exceptionsto the exclusive remedy of workers' compensatlon, permitsthe employeethe optionto sue for the damages sustained as 8 result ofthe injury. Therefore, this portion of the defendanta m o t h is denied. This decision is made wlthout reaching, and without prajudiw,to the partles rablng a an apprctprlate tlma, whether New York State law even applies I thls sltuatlon. t n 8 of 9 - - [* 10] I 8 *, Concluslon In accordance wlth the foregolng, It Is hereby, ORDERED defendanta motionfor summaryfudgmentia denled in its erdirei~, that and it ia further ORDERED that the parties am to appeslt for a Cornplianco Confennca on Thursday, July 12,2012 at 8:30 am., in room 232 located at 80 Centre Stmet; and It is further ORDEREDthat any relief requested that has not been addressed ha8 nonethelsss been considered and is hereby axpresaly denied. ORDERED that this constitutes the decislon and order of the court. Dated: New York, New York May &,2012 so ordered: c HON. JUDl - paec 9 of 9 - GISCHE, J.S.C.

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