You are here: / / Case Should Not Have Been Dismissed on Forum Non Conveniens Grounds—Analytical...

Case Should Not Have Been Dismissed on Forum Non Conveniens Grounds—Analytical Criteria Explained

The First Department determined Supreme Court should not have dismissed plaintiff’s action on “forum non conveniens” grounds. The action concerned a lease and guaranty for property located in Georgia, but the property itself was not part of the dispute. Both parties were authorized to do business in New York, plaintiff’s principal place of business was in New York, the lease was executed in New York and the guaranty was executed in New Jersey. The fact that Georgia law was to be applied (by the terms of the contract) did not control. The court explained the analytical criteria:

Generally, “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed” … .

“The burden rests upon the defendant challenging the forum to demonstrate relevant . . . factors which militate against accepting the litigation and the court, after considering and balancing the various competing factors, must determine in the exercise of its sound discretion whether to retain jurisdiction or not” … . “Among the factors to be considered are the burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum” … .

The court may also consider the residency of the parties and where the transaction out of which the case arose occurred … . “No one factor is controlling . . . [t]he great advantage of the rule of forum non conveniens is its flexibility based upon the facts and circumstances of each case” … . Here, there is a substantial nexus to New York.

“Although the residence of a plaintiff is not the sole determining factor on a motion for dismissal on grounds of forum non conveniens, it has been held to generally be the most significant factor in the equation” … . As the motion court acknowledged, in this case both parties are authorized to do business in New York and the plaintiff’s principal place of business is in New York. While the real property that is the subject of the lease and guaranty is located in Georgia, the actual property is not at issue in this case. In any event, the lease was actually executed in New York and some of the correspondence was sent to the nonparty tenant at a New York address. Moreover, the guaranty which is the subject of this litigation was executed in New Jersey and the defendant guarantor, a New Jersey corporation with its principal executive office in New Jersey, does not conduct any business in Georgia. While counsel for the nonparty tenant submitted an affidavit listing several potential witnesses who are located in either Georgia or Tennessee, there is no indication as to what knowledge these proposed witnesses have relating to the issues in this case, or whether they would even testify. Thor Gallery at S. DeKalb, LLC v Reliance Mediaworks (USA) Inc., 2015 NY Slip Op 06644, 1st Dept 8-25-15

 

You might also like
ALTHOUGH THE APPELLATE COURT TOOK JUDICIAL NOTICE OF A REGULATION ALLOWING CITY SANITATION TRUCKS TO DOUBLE PARK RAISED FOR THE FIRST TIME ON APPEAL, THERE WERE DISPUTED FACTS ABOUT WHETHER THE DOUBLE PARKED SANITATION TRUCK COULD HAVE BEEN PULLED TO THE CURB, THE CITY’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
DEFENSE COUNSEL DID NOT WAIVE HIS CLIENT’S RIGHT TO HAVE HIM ATTEND THE LINEUP IDENTIFICATION BY SENDING HIS PARALEGAL, WHO WAS TURNED AWAY; DEFENSE COUNSEL SHOULD HAVE BEEN TOLD HIS PRESENCE WAS REQUIRED (FIRST DEPT).
Even Though the People Indicated They Were Not Ready for Trial After Filing a Certificate of Readiness, the Presumption the Statement of Readiness Was Accurate and Truthful When Made Was Not Rebutted/How to Interpret a Plurality Opinion by the Court of Appeals Explained
PETITIONERS WERE ENTITLED TO SUMMARY DETERMINATION IN THIS EXECUTIVE LAW 63 SPECIAL PROCEEDING SOUNDING IN FRAUD STEMMING FROM UNCONSCIONABLE EQUIPMENT FINANCE LEASES AND OPPRESSIVE DEBT COLLECTION PRACTICES; RESPONDENTS’ REQUEST FOR FURTHER DISCOVERY, WHICH IS DISFAVORED IN SPECIAL PROCEEDINGS, WAS PROPERLY DENIED (FIRST DEPT).
THE FACT THAT OSHA REQUIRES PROTECTION ONLY FOR FALLS MORE THAN SIX FEET WAS IRRELEVANT; PLAINTIFF, WHO FELL FROM AN ELEVATED PLANK, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).
IN THIS DESIGN DEFECT PRODUCTS LIABILITY CASE, THE LOSS OF THE SPECIFIC PRODUCT WHICH CAUSED THE INJURY DID NOT PREVENT DEFENDANT-MANUFACTURER FROM PRESENTING A DEFENSE; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED ON SPOLIATION GROUNDS (FIRST DEPT).
INSTALLATION OF TEMPORARY FLAG HOLDERS NOT A PROTECTED ACTIVITY UNDER LABOR LAW 240 (1).
CELL PHONE COMPANY WITNESS WAS NOT AN ENGINEER AND SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY AS AN EXPERT ABOUT HOW FAR DEFENDANT’S PHONE WAS FROM THE TOWER, POLICE OFFICER SHOULD NOT HAVE BEEN ALLOWED TO TESTIFY ABOUT THE VICTIM’S IDENTIFICATION OF THE DEFENDANT, JUDGE SHOULD NOT HAVE MARSHALED THE EVIDENCE TO FAVOR THE PROSECUTION, THESE ERRORS, AS WELL AS ADDITIONAL JUDICIAL ERRORS, CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Failure to Meet One-Year Residency Requirement Invalidated Designating Peti... “At Will” Employee Stated a Cause of Action Alleging Defendants...