Romero v Farias

[*1] Romero v Farias 2011 NY Slip Op 51519(U) Decided on August 9, 2011 Rye City Ct Latwin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 9, 2011
Rye City Ct

Julio Romero, Plaintiff,

against

Jesus Farias and LUIS AGUILAR, Defendant.



SC11-152

 

Plaintiff Pro Se

Defendant Alan B. Brill, P.C., Suffern, NY (by Aisling M. McAllister, Esq.)

Joseph L. Latwin, J.

Plaintiff Julio Romero, a White Plains resident, brings this small claim in Rye City Court seeking to recover damages arising from an auto accident that occurred at the intersection of South Lexington Avenue and Prospect Street in the city of White Plains - a location some 8 blocks from and on the same street as the White Plains City Court. The defendants, Jesus Farias and Luis Aguilar, a White Plains resident who lives less than a half mile from the White Plains City Court, move to dismiss the plaintiff's claim pursuant to CPLR § 327 on the grounds of forum non conveniens. The plaintiff failed to respond to the motion.

Under Uniform City Court Act § 1803, service of the statement of claimant's cause of action must be made by ordinary first class mail and certified mail with return receipt requested to the defendant's residence, if he resides within the county or at his office or place of regular employment within the county if he does not reside therein or his residence within the county is not known to the claimant. Thus, a defendant must reside, have an office, or be regularly employed within the county in which the City Court sits. If the defendant resides in the county where the City Court sits, neither party need reside in that city or an adjoining town. Azzato v. Renne, 123 Misc 2d 609, 474 NYS2d 220 (Oswego City Ct 1984) & Germain v. CNY Management Corp., 121 Misc 2d 871, 469 NYS2d 322 (Albany City Ct 1983). Thus, in counties where more than one City Court sits, it is possible [*2]that a claimant who lives in City A could file a small claim against a defendant who also resides in City A (or Town X), in the City Court in City B.

This scenario is becoming common. Rye and White Plains are both in Westchester County and are just over 7 miles distant from each other. The Rye City Court has seen a significant number of small claims filed by residents of White Plains against other residents of White Plains. Both White Plains City Court and Rye City Court (and all other City Courts in Westchester County) have jurisdiction over this case under UCCA § 1803 since the parties reside in Westchester County. The Court's experience with these cases indicates that not only are the parties from White Plains, but the underlying transaction or tortious act took place in White Plains and the witnesses also reside in White Plains. There is no nexus to Rye at all.

This case has all these characteristics - the plaintiff and the defendant Luis Aguilar both reside in the city of White Plains, the second defendant Jesus Farias appears to reside in the State of Washington.[FN1]No party lives in Rye. They either live in White Plains or out of State. There are no identified witnesses that reside in the city of Rye. The underlying accident took place in White Plains and presumably the witness to the accident were in White Plains at the time of the accident. The White Plains City Court appears to be an available forum for this case as the parties reside in White Plains and that court has the same jurisdiction as the Rye City Court. The situs of the underlying events all took place in White Plains. No nexus to Rye offered.

One might ask why there simply could not be a change of venue. Venue means the geographical subdivision in which an action may be brought. Venue rules are needed only for courts with territorial subdivisions, such as the Supreme Court. County, City, town and village courts are independent in their municipalities and have no venue provisions. Siegel, New York Practice § 116 (4th ed.) Not being a court with subdivisions, City courts cannot change venue to another City Court. See, Idrobo v. Martin, n.o.r., 2003 WL 22517744 [Nassau County Dist Ct 2003].

Forum non conveniens is an equitable doctrine that allows a court, in its [*3]discretion, to decline the exercise of jurisdiction over a transitory cause of action upon considerations of public policy, justice, fairness, and convenience. Martin v. Mieth, 35 NY2d 414, 362 NYS2d 853 [1974]; Silver v. Great Am. Ins. Co., 29 NY2d 356, 328 NYS2d 398 [1972]. The doctrine of forum non conveniens was developed by the courts to prevent a plaintiff with a transitory cause of action and a wide choice of fora in which to sue, some of which may bear little relation either to the cause of action or to the parties, from choosing a forum with the purpose of unduly burdening or harassing a defendant. Moreover, the rule reflects a policy against lending state courts to the resolution of disputes between nonresident parties. NYJUR2d Courts § 686. There is no statute or case law that precludes the application of forum non conveniens to City Courts.

The rules concerning actions brought in inconvenient fora is set forth in CPLR § 327(2), that says, "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. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action."

A motion to dismiss pursuant to CPLR § 327(a) on the ground of forum non conveniens is addressed to the sound discretion of the court, and the resulting determination will not be set aside absent an improvident exercise of that discretion or a failure by the court to consider the relevant factors (see National Bank & Trust Co. of N. Am. v. Banco De Vizcaya, 72 NY2d 1005, 534 NYS2d 913 [1988] cert. denied 489 US 1067, 109 SCt 1343 [1989]; H & J Blits v. Blits, 65 NY2d 1014, 494 NYS2d 99[1985]; Brinson v. Chrysler Fin., 43 AD3d 846, 842 NYS2d 48[2nd Dept 2007]). The factors to be considered on the motion include the residence of the parties, the burden on the New York court, the jurisdiction where the underlying acts occurred, the location of evidence and nonparty witnesses, the potential hardship to the defendants, and the availability of an alternative forum, with no one factor being dispositive (see Islamic Republic of Iran v. Pahlavi, 62 NY2d 474, 478 NYS2d 597 [1984], cert. denied 469 US 1108, 105 SCt. 783 [1985]; Brinson v. Chrysler Fin., supra). See, Yun Ra v. Widrow, 82 AD3d 974, 918 NYS2d 737 [2nd Dept 2011]; In re Oxycontin II, 76 AD3d 1019, 908 NYS2d 239 [2nd Dept 2010]. See also, Xiu Zhang Yin v. Bennett, 78 AD3d 936, 911 NYS2d 422 [2nd Dept 2010]. No single factor controls, so that the fact that a particular litigant resides in New York is not dispositive. Turay v. Beam Bros. Trucking, Inc., 61 AD3d 964, 966, 878 NYS2d 391 [2nd Dept 2009]. [*4]

Here, the parties reside in White Plains or the state of Washington. The underlying accident occurred in White Plains. There is no evidence in Rye nor nonparty witnesses that have been identified to be residents of Rye. The City Court of White Plains has jurisdiction over the claim. While Rye and White Plains are not very far from each other, there is no direct public transportation between the two cities. In order to go from one to another, one would have to go to travel to 125th Street or Grand Central Station in Manhattan and transfer to another train to get to the other city. The buses that run require transfers and are not direct. The City Court in White Plains sits upon a large public parking lot and is across the street from a shopping mall with a large parking lot. The City Court in Rye adjoins a train parking lot that is filled with commuters and there is extremely limited short term parking on the adjacent streets.

Due to the recent State budget shortfalls, the Office of Court Administration laid off over 500 court staff. The Rye City Court Clerk's office lost 1/3 of its clerks. Handling cases of White Plains residents suing other White Plains residents for actions arising in White Plains burdens the diminished Rye City Court staff.

While outright dismissal may be permissible, it would be unjust to do so where the plaintiff relied on apparent jurisdiction of the Court. Rather, dismissal should be conditioned so as not to unduly burden the plaintiff by conditioning the dismissal on the defendant accepting service issued out of the City Court of White Plains and waiving jurisdictional and statute of limitations defenses. Jackam v Nature's Bounty, Inc., 70 AD3d 1000 [2nd Dept 2010].

Accordingly, it is,

ORDERED and ADJUDGED that the case is dismissed conditioned upon defendant:

1) consenting to the jurisdiction of the White Plains City Court;

2) accepting service of process from the White Plains City Court;

3) entering an appearance in the White Plains City Court; and

4) agreeing to waive the statute of limitations as a defense except to the extent that such defense could have been asserted as a defense in the action pending in the Rye City Court.

August 9, 2011_________________________

JOSEPH L. LATWIN

Rye City Court Judge [*5]

ENTERED Footnotes

Footnote 1: The Court does not reach the issue of jurisdiction over the Washington resident defendant as it was not raised in the motion.