Ess-Food v Ramtrade Worldwide, LLC
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Ess-Food v Ramtrade Worldwide, LLC 2011 NY Slip Op 32657(U) October 10, 2011 Sup Ct, Nassau County Docket Number: 19690/09 Judge: Joel K. Asarch 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. ---------------------- ------- ---- -------- --- ------------------- -- [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: LA. PART 17 ESS- FOOD Plaintiff DECISION AND ORDER - against - Inde)C No: 19690/09 Motion Sequence No: 001 RAMTRADE WORLDWIDE, LLC, Original Return Date: 04- 14- Defendant. PRESENT: HON. JOEL K. ASARCH, Justice of the Supreme Court. The following named papers numbered 1 to 6 were submitted on this Notice of Motion on June 30 2011: Papers numbered Notice of Motion , Affirmation and Affidavit in Support Affrmation and Affidavit in Opposition Affirmation in Reply This motion by the defendant , RAMTRADE WORLDWIDE, LLC (" Ramtrade ), for an order pursuant to CPLR 327(a) dismissing the within action is decided as follows: Defendant seeks to dismiss the within action pursuant to CPLR 327(a) on the grounds that the action is fied in an inconvenient forum. The statute provides that " ( w Jhen the court finds that in the interest of substantial justice the action should be heard in another forum , the cour , on the motion of any part, may stay or dismiss the action in whole or in par on any conditions that may be just. The domicile or residence in this state of any pary to the action shall not preclude the court from staying or dismissing the action. " The doctrine offorum non conveniens permits a court to [* 2] dismiss an action when , although it may have jurisdiction over a claim , the cour determines that " the interest of substantial justice the action should be heard in another forum " (CPLR 327(a)). Banco De Vizcaya, S.A. 72 NY2d 1005 1007). Trust Co. of North Am erica, Ltd. (National Bank The doctrine is fle)Cible , Great Am. Ins. Co. 29 NY2d 256 , 361; Banco De Vizcaya, S.A. , supra) Trust Co. of North America, Ltd. National Bank the residency of the paries , the potential inter alia including, Trust 62 NY2d 65, 75; Artoc Bank (Banco Ambrosiano circumstances of the paricular case Silver many factors in light of the facts and requiring the balancing of hardship to proposed witnesses , the availabilty of an alternative forum action , and the burden which wil be imposed upon the (Wentzel controllng (citations omitted)" 2000); see also , Sarfaty , the situs of the underlying New York cours, with no one single factor Allen Machinery, Inc. 227 AD2d 446 447 (2 Dept. Rainbow Helicopers, Inc. 221 AD2d 618 , 619 (2nd Dept 1985)). The burden is on a defendant challenging the forum to demonstrate relevant private or public interest factors which miltate 62 NY2d 474 479; against accepting the A. Trading Co. Korea Exchange Bank Moreover , where a plaintiff is a New York resident , establishing that New York is an inappropriate foru disturbed. (Homola (Islamic Republic of Iran litigation 8 AD3d 334 345 (2 Dept 2004)). a defendant bears the heavy burden of before plaintiffs choice of forum wil be Longshore Transportation System 204 AD2d 1052 (4 Dept 1994)). The ultimate resolution " of this issue rests within the discretion of the trial cour, cour has e)Camined the Pahlavi relevant circumstances , its determination wil not be distubed" Rainbow Helicopers, Inc. , supra at p. 619). (Koutras (and) so long as the (see , Sarfaty Lacorazza 248 AD2d 514 (2nd Dept 1998)). It is undisputed that New York was not the situs of the underlying action. The following [* 3] facts set forth in the affidavit of Roland Finkleman , the managing member of defendant Ramtrade Worldwide , LLC , are not controverted by the plaintiff. This litigation involves a dispute between the paries involving a Danish company and a broker located in Georgia on or about April 2008 , whereby Ramtrade . . . sold poultry products through the Georgian broker to the plaintiff (Danish company) from Argentina via Vietnam to Hong Kong and to South Africa on behalf of the plaintiff. No par of this dispute involved the supply of product , transportation, work. . . in New York. In fact , the goods in question are not even a product produced in the United States. The products were produced in Argentina for sale and delivery solely for outside the United States. In addition , the product was transported on vessels , owned and registered outside the United which are foreign States. (, 5 of Affidavit Roland Finkleman in Support). The plaintiff is not a resident ofN ew York. Plaintiffhas submitted no documentar evidence to establish that it is registered as a corporation in New York, jurisdiction ofthe United States. The amount in controversy is $55 South Carolina or any other 380. Cf CPLR 327(b). Defendant argues that the only reason this action was commenced in this court is due to the use by the defendant of its mail drop in Lake Success. Defendant asserts and it is not refuted by the plaintiffthat Ramtrade does not maintain offices at the Lake Success location , and has no employees or agents at that location. In short , defendant contends Ramtrade has no connection to Nassau County. (Affdavit in Support , Finkleman). In opposition to the motion , plaintiff submits copies of a " Wire Confrmation , a " Purchase Confirmation Order , a "Purchase Confirmation Order" and a ProForma Invoice 0431- 2008. " Each of these documents lists the defendant's address as 1979 Marcus Avenue , Suite 210 , Lake Success , New York. The court notes that the pro forma invoice has a Nassau County telephone number along with a Florida telephone number and a Florida fa) number. Mr. Finkleman states that Ramtrade is a Delaware limited liability company with no [* 4] connection to the State of New York. Defendant's sales office is located in the state of Florida. Richard Hudson , the purchasing agent for plaintiff has submitted an affidavit in opposition jurat with a by a Notary Public in the County of Craven , State of North Carolina, which leads credence to defendant's assertion that the plaintiff has no contacts with this state. The sumons lists " POB 14746 New Bern , N. CA" as the address of the plaintiff. In fuher opposition to the motion to dismiss , plaintiff submits a copy of a Dun & Bradstreet report in the name of the defendant dated Januar 14 2009 that also lists the Lake Success address. However , what the plaintiffs attorney overlooks is the following statement on the Dunn & Bradstreet report: "A check ofD&B' s public records database indicates that no filings were found for Ramtrade Worldwide , LLC at 1979 Marcus Avenue , Suite 210 , Lake Success , New York." This cour also notes that the Pro Forma Invoice 0431- 2008 submitted by plaintiff in opposition to the motion states that " (a)ny disputes arising shall be arbitrated under the rules and regulations of the American Arbitration Association. " Clearly, there are alternate forus available any way in to litigate the issues i. , including Florida or North Carolina. Plaintiff has not indicated which removing the action from Nassau County would prejudice the plaintiff such as the callng of witnesses or employees who reside here. Defendant , on the other hand , states that it would be diffcult to litigate here , as it must hire outside counsel , rather than its own in-house counsel and has no documents , employees or witnesses in Nassau County. Finally, the Court has considered that the plaintiff wired a down payment (in the amount controversy herein -- $55 380) to the defendant's New York Ban of America account on December 2008. While such action is significant in jurisdictional analysis , it is not determinative non inforum analysis. Of more significance are the affrmative defenses raised by the defendant - i. that [* 5] there is an outstanding balance due the defendant from the plaintiff, contentions offraud and alleged interference with defendant's " overseas supplier without consent" . None of these defenses appear to have any significant contact with New York. Weighing the relevant factors presented in light of the above-cited principles, the court concludes that the defendant has sustained its burden of demonstrating entitlement to relief pursuant to CPLR 327(a). Accordingly, after due deliberation , it is ORDERED , that the defendant's motion to dismiss is granted , on the condition that within ninety (90) days of service of this Order with notice of entry, the defendant , RAMTRADE WORLDWIDE, LLC , stipulates (1) to waive objection to service of process in and to submit to the jurisdiction of the courts in the State of Florida (the Cour finding that by not moving to compel arbitration , the defendant has waived arbitration) and (2) that the defendant waives any defense of limitation oftime , provided that such Florida action is brought within ninety (90) days from the date of service of defendant's stipulation upon counsel for the plaintiff. In the event that defendant fails to comply with the foregoing conditions , the motion is denied. This constitutes the Decision and Order of the Cour. Dated: Mineola, New York October 10 2011 ENTER: ENTERED OCT 12 2011 NASSAU COUNTY COUNTY CLERK' S OFFICE [* 6] Copies mailed to: Myers , Sa)Con & Cole , P. Attorneys for Plaintiff Serlin & Serlin , Esqs. Attorneys for Defendant
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