Croce v Preferred Mut. Ins. Co.

[*1] Croce v Preferred Mut. Ins. Co. 2011 NY Slip Op 21448 Decided on December 19, 2011 District Court Of Suffolk County, Third District Hackeling, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 19, 2011
District Court of Suffolk County, Third District

Scott A. Croce, D.C. Assignee of Cordero, Ismael, Plaintiff,

against

Preferred Mutual Insurance Company, Defendant.



HUC 2430-11



Law Offices of Gabriel & Shapiro, LLC

Jason Moroff, Esq.

Attorneys for the Plaintiff

3361 Park Avenue

Wantagh, New York 11793

Mura & Storm, PLLC

Scott D. Mancuso, Esq.

Attorneys for the Defendant

930 Rand Building

14 Lafayette Square

Buffalo, New York 14203

C. Stephen Hackeling, J.

Preferred Mutual Insurance Company(hereafter "Preferred") makes an application to this Courtseeking either a venue transfer pursuant to New York CPLR §510 (3) or dismissal of the plaintiff, Scott Croce, D.C.'s (hereafter "Croce") complaint pursuant to CPLR §327(a). For the reasons hereafter stated, the application to dismiss this complaint is granted with leave to re-commence same in an alternative forum subject to the provisions of New York CPLR §205(a).

The Facts

In advancing its "forum non conveniens"dismissal motion, Preferred asserts that the undisputed relevant facts are that Preferred issued the subject no-fault automobile insurance policy in Buffalo, New York to a resident of Buffalo, New York. The subject accident occurred in Buffalo, New York. The injured party resided in Buffalo, New York, and following the accident, the injured party was treated in Buffalo, New York. The injured party was examined via an independent medical examination in Williamsville, New York,( a Buffalo suburb). The plaintiff treated the injured party in Buffalo, New York. Preferred denied the bills at issue by sending denials to the plaintiff at a Buffalo, New York address, and such denials were based on

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the opinion of a medical doctor located in the Buffalo, New York. Croce commenced this action pursuant to UDCA §404 as Preferred maintains independent insurance business agents who conduct business on its behalf within the district. Preferred does not maintain a formal business office in the district and was served with the summons care of the New York State Insurance Department at 25 Beaver Street, New York, New York.

Issues Presented

Does the Suffolk County District Court have the power to transfer or dismiss an action between two New York state residents because it may be better litigated at a City Court in Buffalo, New York?

Discussion

Preferred's application is two pronged and seeks either dismissal pursuant to CPLR §327 or a transfer of venue pursuant to CPLR §510 to Erie County, New York.[FN1] The [*2]

Court will deal summarily with the CPLR §510 transfer request and deny same as it is statutorily prohibited from ordering a transfer outside its geographic jurisdiction by Judiciary Law, UDCA § 306.See, Barco Auto Leasing v. Wolf, 179 Misc 2d 815 (App. Term 9th & 10th Dists. 2nd Dept. 1999); Personal Career Services, Inc. v. Pizza Hut Inc., 149 Misc 2d 729 (App. Term 1st Dept. 1991). Section 101 of the CPLR expressly subordinates its general provisions to a conflicting alternative specific statute as contained in the UDCA. See A & S Medical, P.C. v. Elrac, Inc. 184 Misc 2d 257 (NY Civ. Ct. 2000). Neuro Services, P.C. v. Amer. Transit Co., 183 Misc 2d 496 (NY Civ. Ct. 1999). Even absent a conflict with the UDCA; Sec. 510 contemplates transfers within a Court's geographic jurisdiction. Erie County is outside this Court's territorial jurisdiction.

Forum Non Conveniens

The request for the invocation of the doctrine of forum non conveniens (hereafter "FNC") is more problematic. As identified in several legal treatises; there presently exists split authority as to whether CPLR §327 FNC is available to inferior Courts of limited jurisdiction such as City Civil Court and the various District Courts. Siegel, Practice Commentaries, McKinney's Consolidated Laws of New York, Book 29(A) NY Prac. §28 (4th Ed. 2011); 55 Siegel Prac. Rev. 3 (1997); New York Practice Sec. 2:64 at 112; New York Practice Com. Litg. In New York Courts Sec. 3:27 (3d Ed. 2011). See also, Idrobo v. Martini, 2003 WL 22517744 (Nas. Dist. Ct. 2003).

Judge Ritholtz of New York City Civil Court has opined that the applicability of CPLR §327 to inferior Courts is questionable as its purview has historically been limited to Supreme Court practice; "enabling it to refuse to entertain out of state actions, involving non residents". Suffolk Chiropractic Ctr. v. Geico, 171 Misc 2d 855 (NY Civ. Ct. 1997). See also generally, Varkonyi v. S. A. Express Grandeuse (Varig),22 NY2d 333 (NY 1968). This reasoning is consistent with the common law which existed prior to1972.

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FNC is a common law doctrine which until 1952 allowed New York Courts to abstain from entertaining personal injury casesinvolving non residents. Bata v. Bata, 304 NY 51 (NY 1952). As a result of the Bata decision, the Court of Appeals determined it had the authority andinclination to change the FNC common law doctrine to allow for its utilization in contract and other cases. The one limiting prohibitation to this equitable doctrine was the inflexible rule that FNC could not be invoked if a party was a New York resident. The Court of Appeals again amended and expanded the doctrine in January 1972 by opining that a party's New York residency was not an absolute bar to FNC invocation ( i.e. it was to be only one of many [*3]considerations). Silver v. Great Amer. Ins. Co., 29 NY2d 356 (NY 1972). It is undisputed that the common law, including the Bata and Silver modifications, was enacted into statutory form in 1972 via the enactment of New York CPLR §327 which provides:

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.

CPLR §327 was intended by the legislature to be only a codification of the Silver Rule, and was confirmatory in nature of the common law and not innovative. Siegel, New York Practice Sec. 28 (4th ed 2011). The complication presented is the fact that CPLR §327 utilizes the generic word "Courts", without limitation, and indicates that this Court does have the authority to dismiss the subject action. The dilemma presented is how does this Court reconcile this inconsistent language with the legislature's intention to only codify, not amend, the common law which was utilized previously only by New York's original jurisdiction Supreme Courts.

In contrast to the line of reasoning that FNC is not available to inferior Courts is the line of cases first reported in Surrino v. Hosie, wherein Courts have determined that FNC is available to District Courts. 59 Misc 2d 973 (Nas. Dist. Ct.1969); Roseman v. McAvry, 92 Misc 2d 1063 (NY Civ. Ct. 1978); A & S Medical, P.C. v. Elrac, Inc., 184 Misc 2d 257 (NY Civ. Ct. 2000). This Court concurs that the legislature did not intend to expand the common law when it enacted the 1972 codification.

The determinative fact herein is exactly what was the FNC common law in 1972? Judge Velez in the A & S decision correctly points out that the Court of Appeals, in a one sentence decision (decided June 1, 1972), reversed the 1st Dept. Appellate Division (which had reversed a City Court) and did not challenge the use of FNC in sustaining a Civil County Court dismissal. See, Rafter v. Newark Ins. Co., 30 NY2d 819 (NY 1972). While inconsistent with the pre 1972 common law, it appears that the Court of Appeals, several months prior to Sec. 327's statutory enactment, again modified and expandedit, much as the high Court did in its Bata (1952) and Silver (1972) decisions. All three of these common law amendments were thereafter codified into Sec. 327. The legislature in enacting statutes is presumed to be acquainted with the common law. Transit Commission vs. Long Island R.R. Co., 253 NY 345 (NY 1930). Statutes in derogation of the common law are strictly construed against change. New York Statutes Sec. 301 (a). See generally, Berttes v. Nunan, 92 NY 152 (NY 1883); Dollar Dry Dock Bank v. Piping Rock Builders, Inc., 181 AD2d 709 (N.Y.AD2d Dept. 1992). As such, the legislature's use of the generic word "Courts" in Sec. 327 accurately codified the then existing 1972 FNC common law, which for several months had included inferior Courts.

Having determined that the District Court has the discretionary authority to invoke the FNC doctrine; the Court now turns to its appropriateness. The test to be applied is based in equity, is multipronged and is laid out in the Court of Appeals Bata and Silver decisions, as well [*4]as its decisions in Varkongi v. S.A. Carpressa DeViaco (Varig), 22 NY2d 333 (NY 1968); and Martin v. Mieth, 35 NY2d 414 (NY 1974). In light of the undisputed facts presented, the Court

can think of no case under which a FNC dismissal by an inferior Court would be more appropriate. Every single contact with this insurance dispute involves residents and actions occurring in Buffalo, New York. To not invoke FNC under these circumstances would effectively vitiate its purpose and existence.

Accordingly, Croce's complaint is dismissed subject to the six months tolling provisions of New York CPLR §205.

Dated: December 19, 2011

J.D.C.

-4- Footnotes

Footnote 1:The Court notes that, although "lack of personam jurisdiction" is asserted as a affirmative defense in its answer, the defendant has not moved to challenge plaintiff's assertion of long arm presence jurisdiction in its present application. Subject to the possibility that this defense may have been waived, this Court seriously questions the existence of personam jurisdiction. See generally, Diagnostic Rehab., P.C. v. Republic West Ins. Co., 2003 WL 22888389 (NY Civ. Ct. ); Minger Acupuncture, P.C. v. Amer. Trans. Ins. Co, 183 Misc 2d 270 (NY Civ. Ct. 1999).