Dichter v Installed Bldg. Prods.

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Dichter v Installed Bldg. Prods. 2014 NY Slip Op 33016(U) June 30, 2014 Sup Ct, Westchester County Docket Number: 60632/2013 Judge: William J. Giacomo 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. [* 1] INDEX NO. 60632/2013 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 06/30/2014 To commence the statutory tfma for appeal$ as of right {CPLR 5513[al} 1 you ara advised to serve a copy of this order, wm1 notice of entry, upon aH parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PRESENT: HON. WU.J.JAM , , GJACOMO, _..,. ,. . . ,. ,. ,. ,. ,. ,____________________________________________________J.___________x J.S.C, BARRY J. D!CHTER INSTALLED BUILDING PRODUCTS, LLG D/B/A ALL !N ONE & MOORE BU!LrnNG $YSTEtv1S, The fo!k::i1;.•ving papers numbered 1 to 7 \!Vere read on defendant's motion to dismiss the action on the ground of forum non conveniens and plaintiffs failure to join a nec.:essary party, Notk:.e of .tvlotlon/AtfinnatlorUExhibits__,........,...........................,..,.....,.---·------.......................J.::.~ Affirrnatkm frl OppositkJn/Exhibitsifv1erno of Law ............... ..,..,..,..,..............................4.:§ Rep4y ;\ffirmation.......,........................-.. .......,.................................._ _ _ ..,...,.............................l. On fvfarch 19, 20!0, defendant Installed BuHdlng Products, lnc. ('lBP'') entered into a contract vAth Heilman BuikHng and Restoration, LLC ("Heilman") to h°lstal! two fireplace systerns at plaintiffs vacation home in Massachusetts. The contract was ne9otiatect in [* 2] Massachusetts_ ~--!eHrnan vvas the general contractor hired by plaintm to oversee the construction of p!ak1Hffs vacaUon tmme_ On July 16, 2013., p!ai!1tift~ an attomey representing himself commenced this action seeking darnages for negilgence, breach of contract and intentional inflk:-t!on of emotional distress on the ground that defendant improperly installed the fireplaces, Defendant brings thls pre-answer rnotion seeking to dismiss the act~on on the ground of forum non conveniens and due to pialntlff's failure to jok'l HeHman, a necessary party, Defendant notes that the contract between it and HeHrnan \'Vas l'v~assachusetts rH~Qf;)tiated in and the \Nork was performed In ~·1assachusetts. Defendant argues that all the occurrences alleged in the complaint occurred in Massachusetts:, Defendant argues that aH the material witnesses are located ki f<..4assac:huserts }nchJdtng Hellman, the local bui!dtng code officials and the ernp!oyees of IBP who worked on p!aintlff s vacation hornt~ .are §n Massachusetts, DefBndant also argues that the complaint must be dtsrnissed bl~c~wse Hellman is not a party to the action, Defendant argues that the c-cmtract upon which plaintiff is seektng recovery ls between it and Heilman, tn opposition, plaintiff argues that it is inconvenient for him to have this action be venued in Massachusetts since he lives ln Ne\<v York -and is d~sablec.t Further, litigating the matter in Massachusetts would cause him to incur substantial costs inducting hotels stays and transportation costs, P@aintlff also claims that the action s:houfd mmaln in Nev; York because he ls "able to receive some VBf'l helpful free legal advice about this Action frorn friends in New York W'.ho are Ne\<v York lawyers." Further, in support of his daim for intentkmal infliction of emotional distress, p!alntift plans to caH his physician who lives: and [* 3] prac-tices in Ne¥v YorR, Plaintiff claims h!s physician wl!! not travel to Massachusetts to testify at tdal, VVith respect to the Jolnder of Henman, plaintiff contends that he negotiated the contract with !BP and that contract was merely put in Hellman's namt~ for administrative purposes, HeHrnan merely signed the e-ontrnct at plaintiffs request. P!ajntiff atso submits the affidavit of Jason Heilman, Mr, Heilman states that Heilman was d1ssolved in ,January 2012 and its affairs have been wolmd l.lp, Mr. Heilman also states that he entered into the contract ¥vith !BP at plagntiffs request and vvas not involved in the negotiation of the contract ln reply, defendant notes that plaintiffs arguments that bringing an action in Massachusetts is inconvenient and costly are disingenuous in view of the fact that plaintiff owns a vacation home in Massachusetts, Defendant also notes that vvhi!e piaintiff makes rnuch of his immobiHty due to his disability, on at !east one occasfon plaintiff sought an actjoumrnent of this motion because he vvas on a vacation in California. Defendant also notes that there is no dispute that the contract for the lnsta!iabon of the fireplaces ts bet\.veen IBP and Heilman. Therefore, mp owed a duty to Heilman and HeHrnan ls the only party wfth standing to sue it for breach of contract The fact that Heilman is now dissotved does not prevent from being a party to thls litigation. Dlsc.usslon On a motion to dk:;miss on the ground of forum non conveniens, the Suprerne Court is to weigh the paiiies1 re$idencies, the location of the vvttnesses and any hardship caused by the choice ot forum, the avaHabilit)' ot an a!temative forum, the situs of the action, and the burden on the Ne\N York coLirt system. {See CPLR 327; Tiger Sourcing (FH<} Ltd. v-. [* 4] 20081), No one factor ~s dispositive \Vhen ruling on a motion to dismiss on the ground of forum non conveniens. (Seo CPU'< 327). The defen(Jant bears the burden in a motion to dismiss on the ground of forum non conveniens to "dernonstrate relevant private or pub!!c interest factors which mrntate against accepting the litigation" { Islamic HE..~pubNc of fr'an v: Pahh1:V( 62 NY2d 474, 478-479, 4TB N,Y,S.2d 597, 467 NJ:'..2d 245, cert. denied 469 Here, defendant sustained ~ts burden of demonstrating that New York is not the appropriate forurn for this Hbgat!on . Notably, all the occurrences alleged in the complaint occurred in Massachusetts. Vktual!y all of the witnesses are in tvlassachusetts. ~n deed, p@ainnffs vacation home which is the subje9t of this Hhgation is in Massachusetts.His also VVCHi:hy· to note that pursuant to the language of the contract upon whk~h this action is based, the parties agreed to submit to the jurisdiction of the Commorwvea!th of fv1assi~chuseUs . Moreover, in tv1assachuseth~ and that view of the fad that plaintlffs vacation home is in he is retired, p~aintlff \Nil! not be signlficant!y inconvenienced b)" litigating this rnatttow tn r..tlassachusetts. Notably, the only connechon this action has to the State of Ne\<v York is p!a~ntiff's residence. Hovvever, that single fact is not sutfid~~nt!y perstmsive to keep this action in New York. Based on the foregoing, defendanfs motion to dtsmiss the action on the ground of forum non conveniens is GRANTED. ~n light of this deterrnination, the Court need not [* 5] Dated: VVhite P!akm, New York June 30, 2014 f.:

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