Koyombo v Whitney Trucking, Inc.
Annotate this CaseDecided on September 28, 2004
Supreme Court, Kings County
ELIZABETH KOYOMBO, Individually, ELIZABETH KOYOMBO, AND HOWARD HIRSCHFIELD as Co-Administrators of the Estate of SAMIRA KOYOMBO, ELIZABETH KOYOMBO AND HOWARD HIRSCHFIELD as Co-Administrators of the Estate of SHEILA KOYOMBO a/ka/ SHEILA KOYOMBO Plaintiffs,
against
WHITNEY TRUCKING, INC. THOMAS A. SCHATZLE, JUDA CONSTRUCTION, LTD., TURNER CONSTRUCTION COMPANY, INC., LAQUILLA CONSTRUCTION, INC. AND LOIS M. ROSENBLATT as the Public Administrator of the Estate of HUSEIN KOMIC, Defendants.
27672/03
Francois Rivera, J.
Defendant Lois M. Rosenblatt, as the Public Administrator of the Estate of Hussein Komic moves, pursuant to CPLR §§§ 3211 (a)(2), (3) and (7) to dismiss the complaint. Plaintiffs oppose the motion.
This action arises from a motor vehicle accident which occurred on February 10, 2003, at approximately 1:40 p.m. at the intersection of East 125th Street and First Avenue, New York County. At that time, Husein Komic was driving Elizabeth Koyombo's automobile. Elizabeth Koyombo was a passenger in the front seat. Her daughters, Samira and Sheila Koyombo, ages ten and one years old, were also passengers.
Husein Komic was driving on the right lane of First Avenue and traveling northbound toward the 125th Street intersection. At that time, Thomas Schatzle was also driving in the exact same direction on First Avenue with his vehicle slightly behind and in a lane to the left of the Komic vehicle. Thomas Schatzle was operating an eighteen wheel tractor trailer whose cab was [*2]owned by Whitney Trucking, Inc. and whose trailer was owned by Juda Construction, Ltd.
Allegedly, as the two vehicles approached the intersection at East 125th Street, Husein Komic turned left from his position in the right lane of First Avenue. In an effort to avoid striking the vehicle, Thomas Schatzle tried to maneuver the tractor trailer out of the way. Instead of avoiding the collision, the tractor trailer overturned on top of the Komic vehicle killing Samira Koyombo, Sheila Koyombo and Husein Komic. Elizabeth Koyombo survived.
At the time of the accident, Husein Komic, Elizabeth Koyombo, Samira Koyombo, and Sheila Koyombo lived together at 3433 Rte Fossambault, Ste-Catherine De La J-C, Quebec, G0A3MO. After the accident, Elizabeth Koyombo returned home to this residence.
The defendants, Whitney Trucking, Inc., Thomas Schatzle, Juda Construction Company, Ltd., Laquilla Construction, Inc., Turner Construction Company, Inc., and Lois Rosenblatt, either reside in New York State or maintain their principal place of business in New York State.
CPLR §§§3211(a)(2),(3) and (7) permits a party to move for judgment dismissing one or more causes of action before having to answer the complaint. A dismissal motion pursuant to CPLR §3211 (a)(2) is based on the court not having jurisdiction of the subject matter of the cause of action. A motion pursuant to CPLR §3211 (a)(3) is based on the claim that the party asserting the cause of action does not have legal capacity to sue. A motion pursuant to CPLR §3211 (a)(7), seeks dismissal of the pleading for failure to state a cause of action.
The motion to dismiss pursuant to CPLR §§3211 (a)(2) and (3) are denied because there is no dispute that the court has jurisdiction over the subject matter and the parties; and that all the plaintiffs have legal capacity to sue. However, the motion to dismiss pursuant to CPLR §3211 (a) (7) requires more extensive treatment. This particular motion for an accelerated judgment serves as the mechanical expedient for bringing to the court's attention a ground that supports an early dismissal of a cause of action. The entire range of the substantive law is involved in a motion pursuant to CPLR §3211 (a)(7). Whether or not a pleader has a cause of action is the most singularly substantive of all questions.
Defendant Lois Rosenblatt, as the Public Administrator of the Estate
of Husein Komic, contends that the complaint should be dismissed as against him because Elizabeth Koyombo, Shamira and Sheila Koyombo and Husein Komic were all residents of Quebec at the time of the accident. He contends that their common residence compels the application of Quebec law to the cause of action and that its application bars recovery.
The instant motion brings into focus the substantive area of choice of laws as it relates to personal injury negligence claims. The traditional approach to choice of law problems arising in tort was simply to apply lex loci delicti, the law of the place of the tort, to all substantive issues in the case (see Poplar v Bourjois, 298 NY 62, 66 [1948]; Cooney v Osgood, 81 NY2d 66 [1993]). In 1963, the Court of Appeals, finding this approach to be inflexible and often yielding impractical and unfair results, expressly discarded it in Babcock v Jackson, 12 NY2d 473 [1963]). The court found that justice, fairness, and the best practical results would be achieved by giving controlling effect to the law of the jurisdiction which, because of its relation or contact with the occurrence or the parties, had the greatest concern with the specific issue raised in the litigation. The old, rigid approach of lex loci delicti was replaced with a "center of gravity" or "grouping of contacts" analysis.
In the context of tort law, the Court of Appeals refined its "center of gravity" or "grouping [*3]of contacts" approach to an "interest analysis" analytical approach. The question being which of the competing jurisdictions has the greater interest in having its law applied in a particular litigation. In Neumeier v. Kuehner, decided by the Court of Appeals in 1972, the court reaffirmed its replacement of the lex loci deliciti with the "interest analysis approach" stating that:
"we were willing to sacrifice the certainty provided by the old rule for the more just, fair and practical result that may best be achieved by giving controlling effect to the law of the jurisdiction which has the greatest concern with, or interest in, the specific issue raised in the litigation" (Neumeier v. Kuehner 31 NY2d 121, 128 [1972]).
The jurisdiction with the greater interest is determined by an evaluation of the facts or contacts which relate to the purpose of the particular law in conflict (Schultz v Boy Scouts, 65 NY2d 189, 197 [1985]). Two separate inquiries are required to determine the greater interest: (1) what are the significant contacts and in which jurisdiction are they located; and (2) whether the purpose of the law is to regulate conduct or allocate loss (Padula v Lilarn Properties Corp., 84 NY2d 519 [1994]).
Applying this approach to the case at bar, there is no dispute that Elizabeth Koyombo, Shamira and Sheila Koyombo and Husein Komic were all residents of Quebec at the time of the accident. The tort occurred in New York State. Thus, the first inquiry is settled by the determination that the jurisdiction with the most significant contacts is Quebec. It is noted that the defendants who are not part of the motion are residents of New York State.
As to the second inquiry, a distinction must be made between a choice-of-law analysis involving standards of conduct and one involving the allocation of losses (Schultz v Boy Scouts, supra. 65 NY2d at 198). Loss allocating rules are those which prohibit, assign, or limit liability after the tort occurs, such as charitable immunity and guest statutes Padula v Lilarn Properties, supra., 84 NY2d at 523). In the situation where standards of conduct are at issue, the place of the tort governs. For example, with rules of the road, the place of the tort governs because the locus jurisdiction's interest in protecting the reasonable expectations of the parties who relied on it to govern their primary conduct while driving their motor vehicles, and in the admonitory effect that applying its law will have on similar conduct in the future, assume critical importance and outweigh any interest of the common domicile jurisdiction (Padula v Lilarn Properties, supra., 84 NY2d at 522).
Conduct regulating rules have the prophylactic effect of guiding future conduct to prevent injuries from occurring. If conflicting conduct regulating laws are at issue, the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders (Cooney v Osgood Mach. supra., 81 NY2d at 72).
However, when the potential conflict of laws involve the allocation of losses after the tort occurs, other factors are taken into consideration, chiefly the parties' domiciles (see Schultz v Boy Scouts, supra 65 NY2d at 197-199). In Neumeier v Kuehner, 31 NY2d 121 [1972], the Court adopted a series of three rules. Under the first Neumeier rule, when the driver and passenger share a common domicile, the law of their common domicile should control. Indeed, when both parties are from the same jurisdiction, there is often little reason to apply another jurisdiction's [*4]loss allocation rules. The domiciliary jurisdiction, which has weighed the competing considerations underlying the loss allocation rule at issue, has the greater interest in enforcing the decisions of both parties to accept both the benefits and the burdens of identifying with that jurisdiction and to submit themselves to its authority (Schultz v Boy Scouts, supra., 65 NY2d at 198). Moreover, this rule reduces opportunities for forum shopping because the same law will apply whether the suit is brought in the locus jurisdiction or in the common domicile, the two most likely forums (Schultz v Boy Scouts, supra. 65 NY2d at 199-201).
The second of the Neumeier rules address "true" conflicts, where the parties are domiciled in different States and the local law favors the respective domiciliary. When plaintiff's State, for example, would allocate loss to defendant but defendant's State would force plaintiff to bear the loss, a true conflict arises. The rule provides that when the driver's (defendant's) conduct occurred in the State of domicile and that State would not impose liability, the driver should not be exposed to liability under the law of the victim's domicile. Conversely, when the plaintiff-passenger is injured in the place of domicile and would be entitled to recover, the out-of-State driver should generally be unable to interpose the law of his or her domicile to defeat recovery. In essence, then, the second Neumeier rule adopts a "place of injury" test for true conflict guest statute cases (Cooney v. Osgood Machinery, Inc., supra, 81 NY2d 66 at 73 [1993];see also Bodea v. Trans Nat Express, Inc., 286 AD2d 5 at 11[4th Dept 2001]). New York resolves such a conflict by deferring to the law of the situs of the tort as a tie breaker because that is the only state with which both parties have purposefully associated themselves in a significant way.
The third Neumeier rule applies in other situations when the parties are domiciled in different states with conflicting local laws. In that case, the law of the situs of the tort usually applies, unless " 'it can be shown that displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multi-state system or producing great uncertainty for litigants' (Neumeier v Kuehner, supra 31 NY2d 121 at 128; see also Bodea v. Trans Nat Express, Inc. supra, 286 AD2d 5 at 11) .
At issue here is Quebec's law limiting recovery to economic losses. It initially appears that the first Neumeier rule should apply because both the plaintiffs and defendant Komic share the same domicile in Quebec and the law in question is not designed to regulate conduct but rather is concerned with loss allocation.
The underlying personal injury action contains multiple parties some of whom reside in different jurisdictions. A proper application of the Neumeier rules requires that it be applied separately to each set of litigants (see Schultz v Boy Scouts, supra. 65 NY2d at 198-202; Cooney v Osgood, supra., 81 NY2d at 74). In the case at bar, only defendant Lois Rosenblatt, as the Public Administrator of the Estate of Husein Komic, seeks dismissal by the instant motion. Inasmuch as all the parties to the instant motion are undisputably representing the interest of individuals domiciled in Quebec, the conflict analysis is identical to each.
However, the court's ultimate analysis is to determine which of two competing jurisdictions has the greater interest in having its law applied to the litigation (see Schultz v Boy Scouts, supra., 65 NY2d at 197). Here, we do not actually have competing jurisdictions. Under the law of the Province of Quebec (Automobile Insurance Act, R.S.Q. Chapter A-25) a Quebec resident physically injured in an automobile accident occurring either in that province or [*5]elsewhere is entitled to no-fault benefits from the Societe de l'assurance automobile du Quebec (Quebec Automobile Insurance Board). The Automobile Insurance Act (Id.), which establishes Quebec's no-fault scheme, provides that "[c]ompensation under this title stands in lieu of all rights and remedies by reason of bodily injury and no action in that respect shall be admitted before any court of justice" (section 83.57). The act further provides, however, that "[a] person entitled to compensation under this title by reason of an accident that occurred outside Quebec may benefit by the compensation while retaining his remedy with respect to any compensation in excess thereof under the law of the place where the accident occurred" (section 83.59) Jean v. Francois 168 Misc 2nd 148 [N.Y. Sup 1996].
Thus under Quebec's statutory scheme pursuant to the Automobile Insurance Act, RSQ Chapter A-25, a Quebec resident involved in an accident in that province can only recover no-fault benefits and cannot recover damages for pain and suffering. However, if a Quebec resident is injured outside of Quebec, then the Quebec resident can recover for pain and suffering if the law of the state in which they were injured provides for such recovery and the action is brought in that state.
This deference to another jurisdiction's rule of law demonstrates Quebec's legislative intent to defer to the loss allocation rules of the lex loci delicti and to its lesser interest in having its loss allocation rules applied to torts occurring outside its borders. Of course New York State has an interest in having its loss allocation rules applied to motor vehicle accidents occurring within its borders. The conflict in loss allocation rules is then resolved in favor of application of New York State Law, Quebec having through its legislation demonstrated a lesser interest in having its law applied. The motion of Lois Rosenblatt to dismiss plaintiffs' complaint is denied in its entirety.
The foregoing constitutes the decision and order of the court.
______________________
J.S.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
