Piedrahita v Duarte

[*1] Piedrahita v Duarte 2007 NY Slip Op 51648(U) [16 Misc 3d 1130(A)] Decided on June 24, 2007 Supreme Court, Bronx County Billings, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through March 26, 2008; it will not be published in the printed Official Reports.

Decided on June 24, 2007
Supreme Court, Bronx County

Socrates Piedrahita, Brunilda Vasquez, Andres J. Alba, Elia Vasquez, and Luis Vasquez, Plaintiffs

against

Claudio J. Duarte, Juan A. Acosta, Jennifer M. Llibre, and Wilbert Navarro-Alvarado, Defendants.



Noel O. Hernandez, Plaintiff

against

Gerardo's Transportation, Jennifer M. Llibre, Wilbert Navarro-Alvarado, Juan A. Acosta, and Claudio J. Duarte, Defendants.



25262/2004



For Plaintiffs

Todd D. Greenberg Esq.

Addabo & Greenberg

118-21 Queens Boulevard, Forest Hills, NY 11375

Theodora A. Marangas Esq.

Tomao & Marangas

300 Garden City Plaza, Garden City, NY 11530

For Defendants

Jeffrey G. Lerman Esq.

170 Old Country Road, Mineola, NY 11501

Alan I. Lamer Esq.

555 Taxter Road, Elmsford, NY 10523

Lucy Billings, J.

I.BACKGROUND

Plaintiffs in both these consolidated actions sue to recover for personal injuries sustained May 29, 2004, in New Jersey, when a vehicle operated by defendant Navarro-Alvarado and owned by defendant Llibre collided with a van operated by defendant Duarte and owned by defendants Acosta and Gerardo's Transportation, in which plaintiffs were passengers. Duarte and Acosta, defendants in both actions, and Gerardo's Transportation, defendant in Action No. 2 captioned above, move, and Llibre and Navarro-Alvarado, defendants in both actions, cross-move to dismiss both actions based on forum non conveniens. C.P.L.R. § 327(a). For the reasons explained below, the court denies defendants' motions and cross-motion to dismiss the actions.

II.APPLICABLE STANDARDS

The factors to be considered in determining whether to dismiss an action due to an inconvenient forum, id., include the location of the occurrence underlying the claims, the potential hardship to the parties caused by the designated forum, the burden on this court, and the availability of a suitable alternative forum. Islamic Republic of Iran v. Pahlavi, 62 NY2d 474, 479 (1984); Phat Tan Nguyen v. Banque Indosuez, 19 AD3d 292, 294 (1st Dep't 2005); Shin-Etsu Chemical Co. v. 3033 ICICI Bank Limited, 9 AD3d 171, 175-76 (1st Dep't 2004); Intertec Contracting A/S v. Turner Steiner International, 6 AD3d 1, 4 (1st Dep't 2004). Defendants bear the burden to establish that plaintiffs' forum is inconvenient under these standards. Islamic Republic of Iran v. Pahlavi, 62 NY2d at 479; Banco Ambrosiano v. Artoc Bank & Trust, 62 NY2d 65, 74 (1984); Mionis v. Bank Julius Baer & Co., Ltd., 9 AD3d 280, 282 (1st Dep't 2004); Intertec Contracting A/S v. Turner Steiner International, 6 AD3d at 4. Plaintiffs' choice of forum is not to be disturbed except where the balance of factors weighs heavily in defendants' favor. Sweeney v. Hertz Corp., 250 AD2d 385, 386 (1st Dep't 1998); Waterways Ltd. v. Barclays Bank PLC, 174 AD2d 324, 327 (1st Dep't 1991); Cadet v. Short Line Term. Agency, 173 AD2d 270 (1st Dep't 1991); Kronengold v. Hilton Hotels Corp., 166 AD2d 325, 326 (1st Dep't 1990).

III.THE PROPRIETY OF AVAILABLE FORUMS A.Lack of Hardship in New York

The parties do not dispute that their witnesses and evidence originate from New York, New Jersey, and Michigan. Plaintiffs, defendants Duarte, Acosta, and Gerardo's Transportation, and most of plaintiffs' treating physicians reside in New York. On the other hand, the collision occurred in New Jersey, where defendant Llibre and several non-party witnesses reside. Defendant Navarro-Alvarado resides in Michigan.

Plaintiffs' residence in this jurisdiction is a compelling factor against dismissal. Sweeney v. Hertz Corp., 250 AD2d at 386; Cadet v. Short Line Term. Agency, 173 AD2d at 270. Plaintiffs initially received treatment in New Jersey hospitals, but received continued medical treatment in New York. Mionis v. Bank Julius Baer & Co., Ltd., 9 AD3d at 282; Elson v. Defren, 279 AD2d 361, 362 (1st Dep't 2001); Cadet v. Short Line Term. Agency, 173 AD2d at 271; Kronengold v. Hilton Hotels Corp., 166 AD2d at 326. The New Jersey hospitals' initial treatment records may be attested to and delivered to this court without a witness' appearance. [*2]C.P.L.R. §§ 3122-a and 4532-a.

Based on these and other pertinent circumstances, defendants fail to demonstrate any hardship litigating this action in New York as opposed to New Jersey. Brodherson v. Ponte & Sons, 209 AD2d 276, 277 (1st Dep't 1994). See Fox v. Fusco, 4 AD3d 313 (1st Dep't 2004). To override plaintiffs' chosen forum, defendants bear the burden to identify the non-party witnesses and the testimony they would offer and to show it would be unobtainable in this forum. Anagnostou v. Stifel, 204 AD2d 61, 62 (1st Dep't 1994). Here, defendants did not even identify any non-party witness until their reply and still failed to show any hardship to that witness. Cadet v. Short Line Term. Agency, 173 AD2d at 271. Defendants have not demonstrated any difficulty bringing witnesses or other evidence from New Jersey to New York. Goetz, Fitzpatrick & Flynn v. Hoffman, 238 AD2d 171 (1st Dep't 1997). Nor have defendants shown any non-party witness's unwillingness to testify absent a subpoena. Kronengold v. Hilton Hotels Corp., 166 AD2d at 326.

Regarding Navarro-Alvarado, a Michigan resident, defendants have not shown any greater hardship to him if the action is litigated in New York instead of New Jersey. Neville v. Anglo Am. Mgt. Corp., 191 AD2d 240, 242 (1st Dep't 1993). Although the double hearsay in the police report would not be admissible at trial, the New Jersey police officer witnesses, as well as other non-party witnesses, could be deposed to obviate any inconvenience in securing their appearance in a New York court. C.P.L.R. § 3117(a)(3)(ii); Elson v. Defren, 279 AD2d at 362. In any event, the police officers, who did not observe the collision, but only its aftermath, would testify merely as to their investigation. B.Lack of Jurisdiction in New York

Moving defendants Duarte, Acosta, and Gerardo's Transportation also claim prejudice from the difficulty or impossibility of obtaining jurisdiction over cross-moving defendants Llibre and Navarro-Alvarado, should they succeed in dismissing each action based on lack of personal jurisdiction over them. Even assuming such success, however, their absence would not impair moving defendants' ability to defend the actions, as moving defendants may seek redress in an indemnification action against cross-moving defendants in another forum. Neville v. Anglo Am. Mgt. Corp., 191 AD2d at 242.

More dispositively, in Action No. 1, cross-moving defendants' answer does not claim lack of personal jurisdiction. However meritorious that affirmative defense may have been, its omission in their first responsive pleading, whether an answer or a motion to dismiss the action, waives the defense. C.P.L.R. § 3211(e); Iacovangelo v. Shepherd, 5 NY3d 184, 186 (2005); McGowan v. Hoffmeister, 15 AD3d 297 (1st Dep't 2005); Wideman v. Barbel Trucking, 3 AD3d 449, 450 (1st Dep't 2004); Domansky v. Berkovitch, 251 AD2d 3 (1st Dep't 1998). While their answer in Action No. 2 does raise that defense, by moving to dismiss the action based on C.P.L.R. § 327(a), forum non conveniens, and not § 3211(a)(8), lack of personal jurisdiction, they similarly waived the defense. C.P.L.R. § 320(b); Frankel v. Siravo, 278 AD2d 66, 67 (1st Dep't 2000); National Loan Invs., L.P. v. Piscitello, 21 AD3d 537 (2d Dep't 2005). See McGowan v. Hoffmeister, 15 AD3d 297; Wideman v. Barbel Trucking, 3 AD3d at 450; Domansky v. Berkovitch, 251 AD2d at 3-4.

Thus, insofar as cross-moving defendants would seek dismissal based on lack of personal jurisdiction over them, or moving defendants rely on not obtaining jurisdiction over their co-defendants to pursue claims against them, as support for forum non conveniens, the jurisdictional issue carries no force. Since jurisdiction over defendants is presumed upon a motion to dismiss the action on forum non conveniens grounds, jurisdiction or lack of jurisdiction over a party is not a relevant factor in determining the motion. Shin-Etsu Chemical Co. v. 3033 ICICI Bank Limited, 9 AD3d at 176. C.New Jersey

Although defendants point to six other actions arising from the same collision and consolidated in the New Jersey Superior Court, defendants have not shown that inconsistencies between rulings in the actions here and rulings in the actions there will cause injustice. See [*3]Bernstein v. Silverman, 228 AD2d 325, 326 (1st Dep't 1996); World Point Trading PTE. v. Credito Italiano, 225 AD2d 153, 161 (1st Dep't 1996). The rulings would not conflict, because the New Jersey actions involve different plaintiffs, all New Jersey residents. White Light Prods. v. On The Scene Prods., 231 AD2d 90, 93-94 (1st Dep't 1997).

Were the actions here to begin anew in New Jersey, defendants' delay in moving to dismiss these actions on forum non conveniens grounds until the applicable New Jersey statute of limitations had expired prejudices plaintiffs by denying them another suitable forum. Islamic Republic of Iran v. Pahlavi, 62 NY2d at 481; Shin-Etsu Chemical Co. v. 3033 ICICI Bank Limited, 9 AD3d at 178-79. Defendants' participation in the actions in this forum and any delay in seeking dismissal, especially such prejudicial delay, are considerations disfavoring dismissal. Goetz, Fitzpatrick & Flynn v. Hoffman, 238 AD2d 171; Anagnostou v. Stifel, 204 AD2d 61 (1st Dep't 1994); Diversified Research Partners Ltd. Partnership v. Pollution Research & Control Corp., 198 AD2d 81 (1st Dep't 1993). While defendants express a willingness to waive their statute of limitations defense in a New Jersey action, commencing these actions all over again in New Jersey still burdens plaintiffs.

The applicability of another jurisdiction's substantive law also would militate in favor of dismissal here. Phat Tan Nguyen v. Banque Indosuez, 19 AD3d at 294; Shin-Etsu Chemical Co. v. 3033 ICICI Bank Limited, 9 AD3d at 178; Fox v. Fusco, 4 AD3d 313. Although New Jersey law applies to claims in these actions, New York courts apply conflict of laws analysis frequently and often apply other states' laws in actions here. Stanley v. Punch, 35 AD3d 188 (1st Dep't 2006); Zatuchny v. "John Doe", 34 AD3d 398 (1st Dep't 2006); TDH-Berkshire Inc. v. Korff, 33 AD3d 437, 438 (1st Dep't 2006); DiMauro v. Trump's Castle Assoc. Ltd. Partnership, 300 AD2d 432, 433 (1st Dep't 2002).

Furthermore, plaintiffs in Action No. 1 claim moving defendants' failure to maintain seatbelts and padding in their van, omissions that occurred in New York, breached these defendants' duty of care to provide adequate protection for their passengers. In contrast to "the prototypical 'rules of the road,'" with which New Jersey is entitled to ensure compliance by vehicles when operated in New Jersey, K.T. v. Dash, 37 AD3d 107, 113-14 (1st Dep't 2006), plaintiff passengers reasonably expected and relied on conformity with New York's standards by New York owners and operators outfitting their vans in New York. Padula v. Lilarn Props. Corp., 84 NY2d 519, 521-22 (1994); K.T. v. Dash, 37 AD3d at 112-13. New York thus has an interest in applying its law, to assure its residents conform to its standards for passenger vans maintained in New York and used for its residents, and to compensate them for any injuries caused by a departure from its standards of conduct. Padula v. Lilarn Props. Corp., 84 NY2d at 521-22; K.T. v. Dash, 37 AD3d at 111, 114; Elson v. Defren, 283 AD2d 109, 115 (1st Dep't 2001); DeMasi Rogers, 34 AD3d 720 (2d Dep't 2006). See Mann v. Cooper Tire Co., 306 AD2d 23 (1st Dep't 2003). Likewise, whether New York or New Jersey law applies, New York residents are entitled to use their own state's courts. K.T. v. Dash, 37 AD3d at 114; Cadet v. Short Line Term. Agency, 173 AD2d at 271.

In sum, even though the vehicle collision occurred in New Jersey, to which its law applies, New York law applies to plaintiff New York residents' claims involving defendant New York residents' conduct in New York. Moving defendants' defenses to the merits of plaintiffs' claims regarding seatbelts and padding are irrelevant to the issue of forum non conveniens. Neville v. Anglo Am. Mgt. Corp., 191 AD2d at 242.

IV.CONCLUSION

Thus defendants have failed to show that these actions so lack a nexus with New York as to disturb plaintiffs' choice of forum. Sweeney v. Hertz Corp., 250 AD2d at 386; Berkrot v. National Car Rental, 175 AD2d 80, 82 (1st Dep't 1991); Cadet v. Short Line Term. Agency, 173 AD2d at 271. Moreover, plaintiffs have demonstrated prejudice were the court to remove the actions. Neville v. Anglo Am. Mgt. Corp., 191 AD2d at 242-43. Consequently, the court denies defendants' motions and cross-motion to dismiss the actions or to transfer them to New Jersey. C.P.L.R. § 327(a). [*4]

DATED: June 24, 2007

_____________________________

Lucy Billings, J.S.C.