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ALTHOUGH THE TRAFFIC ACCIDENT OCCURRED IN VIRGINIA, PLAINTIFF’S CHOICE OF FORUM (NEW YORK) SHOULD HAVE BEEN UPHELD; VIRGINIA WITNESSES MAY COME TO NEW YORK VOLUNTARILY OR THE VIRGINIA WITNESSES COULD BE DEPOSED IN VIRGINIA; SUPREME COURT SHOULD NOT HAVE SPECULATED ABOUT THE AVAILABILITY OF VIRGINIA WITNESSES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the plaintiff’s choice of forum should have been upheld:

Dalaine M. Piesker (plaintiff) was injured in a motor vehicle accident while driving a truck owned by defendant. Plaintiffs are residents of New York, and defendant has an office and transacts business in New York, but the accident occurred in Virginia. Plaintiffs thereafter commenced this negligence action in New York. Supreme Court subsequently granted defendant’s motion to dismiss the complaint on forum non conveniens grounds, reasoning that defendant would be prejudiced by litigating this action in New York because it would be unable to subpoena either the Virginia State Police officers who investigated the accident or the medical providers who treated plaintiff in Virginia immediately following the accident.

“[W]here a plaintiff is a New York resident, a defendant bears the heavy burden of establishing that New York is an inappropriate forum before plaintiff’s choice of forum will be disturbed” … . Defendant failed to meet that heavy burden here. Although “New York courts lack the authority to subpoena out-of-state nonparty witnesses” …, defendant submitted no evidence establishing that the investigating police officers and the emergency medical providers would not testify voluntarily in New York. The court’s speculation to the contrary is unsupported by the record. In any event, both New York and Virginia are parties to the Uniform Interstate Depositions and Discovery Act (see CPLR 3119; Va Code Ann § 8.01-412.10), and defendant could, if necessary, depose the subject witnesses in Virginia and thereafter introduce those depositions at trial in lieu of in-person testimony in New York (see CPLR 3117 [a] [3] [ii]). Piesker v Price Leasing Corp., 2020 NY Slip Op 05648, Fourth Dept 10-9-20

 

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