Carrs v AVCO Corp.

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Carrs v AVCO Corp. 2012 NY Slip Op 33766(U) May 8, 2012 Supreme Court, Westchester County Docket Number: 59133/11 Judge: Orazio R. Bellantoni Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: WESTCHESTER COUNTY CLERK 05/09/2012 1] NYSCEF DOC. NO. 18 INDEX NO. 59133/2011 RECEIVED NYSCEF: 05/09/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER To commence the statutory time period for appeals as of right (CPLR 5513[aJ). you are advised to serve a copy of this ortler. with notice of entry. upon all parties. PRESENT: HON. ORAZIO R. BELLANTONI JUSTICE OF THE SUPREME COURT CHRISTINE CARRS, as Administratrix Estate of DANIEL P. BISK, deceased, of the Plaintiff, SHORT FORM ORDER - against - Index No. 59133/1 I Motion Date: 4/25/ I2 AVCO CORPORATION, on behalf of its LYCOMING ENGINES division, KS GLEITLAGER USA, INC. f/k/a KS BEARINGS, INC., KOLBENSCHMIDT PIERBURG AG, KS KOLBENSCHMIDT GmbH Uk/a KOLBENSCHMIDT AG, SUPERIOR AIR PARTS, INC., and SWIFT AVIATION, INC., Defendants, KS GLEITLAGER USA, INC., Third-Party Plaintiff, - ab oainst ANNE LAPKIN, as Executrix of the Estate of AMIR TIROSH, deceased, and A Y ALON FLIGHT SERVICES INC., Third-Party Defendants. ---------------------------------- 1 [* 2] Defendan~ A :-,CO Corporation and Lycoming Engines, an operating division of ~ V.~O Corpo~'atlOn I/s/h/a A YCO Corporation on behalf of its Lycoming Engines d~vls~o~ (hereInaf~er A YCO) moves for an order, pursuant to CPLR 3211 (a)(4) dismissing the action against it, or in the alternative, staying the action against it pursuant to CPLR 220 I . '-' ' * The following papers were read: Notice of Motion-Exhibits A-F Affirmation in Opposition-Exhibits Memorandum of Law Affirmation in Opposition-Exhibits Affirmation of Service Reply Affirmation 1-7 8-14 15 16-25 A-F A-I 26 27 By way of background, this action arises out of an aircraft mishap which occurred on November 22, 2009, in which plaintiff's decedent, a passenger on the aircraft, as well as the pilot Amir Tirosh, sustained fatal injuries. Plaintiff commenced the within action on November 28,2011. Plaintiff, Zoe Anne Bisk and Caroline Dora Bisk have also filed an action in Dallas County, Texas on December I, 2011. CPLR 321 I (a)(4) authorizes a court to dismiss or stay an action on the ground that there is another action pending between the same parties for the same cause(s) of action in another court (see generally Whitney v. Whitney, 57 NY2d 731 [1982]). The rule gives courts discretion, which should exercised to avoid vexatious litigation and duplication of effort, with the attendant risk of divergent rulings on similar issues (see White Light Productions Inc. v. On The Scene Productions, Inc., 231 AD2d 90 [1 SI Dept 1997]). The court must consider in which jurisdiction litigation was first commenced, how far each litigation has progressed and which forum has a more significant and substantive nexus to the controversy and thus is the more appropriate forum for its resolution (see San Ysidro Corp. v. Robinow, I AD3d 185 [1 SI Dept 2003]). Basically, New York courts undertake an analysis similar to that employed in consideration of a forum non conveniens motion, by considering and balancing such factors as the situs of the underlying transaction, residency of the parties, potential hardship to the defendants, locations of the documents and of a majority of the witnesses and the burden on the New York courts (see Flintkote v. American Mut., 103 AD2d 501 [2nd Dept 1984]). In support of its motion defendant A YCO states that the New York action and Texas action arise out of the same set of facts and that the relief sought is substantially identical. In opposition, plaintiff alleges that the summons and complaint in the New 2 [* 3] York action were filed on November 28,2011 and the Texas action was filed on December 1, 2011. Plaintiff states that the Texas action was commenced to guard against the possibility that Superior Air Parts, Inc. (Superior), incorporated in Texas and having its principal place of business in Dallas County, might be dismissed for want of personal jurisdiction. Additionally, plaintiff alleges that the Texas action differs from the New York action in that Swift Aviation, Inc. (Swift), a New York corporation, located in Dutchess County and engaged in the aircraft maintenance business, is not a named defendant in the Texas action. New York courts generally follow the first-in-time rule, which instructs that the court which has first taken jurisdiction is the one which the matter should be determined and it is a violation of the rules of comity to interfere (see L-3 Communications v. Sc~fenef, 45 AD3d I [151 Dept 2007]). The parties concede that the New York courts first took jurisdiction in this matter. However, it is also clear that determining the priority of pending actions by dates of filing is a general rule that should not be applied in a "mechanical" way, and that special circumstances may warrant deviation from this rule where the action sought to be restrained is vexatious, oppressive or instituted to obtain some unjust or inequitable advantage (id.). Here, movant presents no evidence that the current action is vexatious or oppressive in nature, nor does movant offer any evidence that plaintiff commenced the within action to gain some sort of advantage over it. This Court must now examine the procedural posture of both actions. In the within action defendants Swift, Superior, A YCO and KS Gleitlager USA, Inc. (KS) have all been served and filed verified answers, Superior and A YCO have both filed verified amended answers as well. A YCO has filed cross-claims against the co-defendants and Superior has filed cross-claims against Swift. Swift has served a set of interrogatories upon plaintiff as well as a notice of discovery and inspection. KS has agreed to waive the defense based upon improper service. Superior has filed a certified answer to A YCO's cross-claims. Finally, A YCO has filed the present motion to dismiss the plaintiff's complaint. In contrast, plaintiff's counsel states that most of the activity in the Texas action has been based upon A YCO's attempt to remove the action to Federal court. A YCO and Superior are the only defendants to answer the Texas complaint and no discovery has been initiated in Texas. Accordingly, it would appear to this Court that both actions are in the very early stages of litigation. Employing an analysis similar to that employed in consideration of a forum non conveniens motion, this Court finds that New York is a appropriate forum for the within action. The accident OCCUlTedin Dutchess County, witnesses and evidence pertaining to the accident, are in large part found in New York and one of the defendants, Swift, is a New York corporation whose principal place of business is in New York. It is also 3 [* 4] alleged that the other companies conduct substantial business in New York. Additionally, plaintiff was appointed Administratrix of her husband's estate by the Westchester County Surrogates Court. Based upon the foregoing, A VCO's motion to dismiss the action pursuant to CPLR 3211 (a)(4) is denied. The branch of AVCO's motion which seeks a stay of this action, pursuant to CPLR S2201, is also denied based upon the procedural posture of the cases as recited above and based upon this Court's finding that the action is properly before the New York courts. A copy of this decision and order has been filed electronically and has been forwarded to the Preliminary Conference Part. Dated: May 8, 2012 White Plains, New York AZIO R. BELLANTONI f the Supreme Court Capuder Fazio Giacoia,LLP Attorneys for CarTs 90 Broad Street New York, New York 10004 Kreindler & Kreindelr, LLP Attorneys for Lapkin 750 Third Avenue New York, New York 10017 Goldberg Segalla, LLP Attorneys for Defendant A VCO II Martine Avenue, Suite 750 White Plains, New York 10606 Maloney, Bean, Horn & Hull, PC Attorneys for Superior 511 E. John Carpenter Freeway, Suite 440 Irving, Texas 75062 4

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