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Forum Non ConveniensFebruary 1, 2020

Monroe v Foremost Signature Ins. Co., 2019 NY Slip Op 52042(U) (App. Term 2d Dept. 2019)

“In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, an order dismissing the complaint pursuant to CPLR 327, on the ground that the action should have been commenced in New Jersey, where the accident had occurred. Plaintiff opposed defendant’s motion on the ground that defendant had failed to establish where the accident had occurred, and cross-moved for summary judgment. By order entered December 18, 2017, the Civil Court granted the branch of defendant’s motion seeking to dismiss the complaint pursuant to CPLR 327, without reaching the remaining branches of defendant’s motion, and denied plaintiff’s cross motion.

Under the doctrine of forum non conveniens, a court may dismiss an action when, although it may have jurisdiction, it determines that, “in the interest of substantial justice the action should be heard in another forum” (CPLR 327 [a]). The doctrine is flexible and requires the balancing of many factors, such as “the residency of the parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon the New York courts” (Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966 [2009]; see Xiu Zhang Yin v Bennett, 78 AD3d 936 [2010]).

Upon the record before us, we find that defendant failed to demonstrate any potential hardship to proposed witnesses if the action is heard in New York (see Turay, 61 AD3d at 966), and defendant failed to otherwise establish with admissible evidence that “in the interest of substantial justice the action should be heard in another forum” (CPLR 327 [a]). Consequently, the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens should have been denied.”

Assuming this was a NJ policy, a motion to dismiss due to lack of compliance with the giving the carrier a chance to adjust the claim before suit or to move into arbitration under AICRA should have been made.

Longevity Med. Supply, Inc. v 21st Century Ins. Co., 2019 NY Slip Op 52041(U)(App. Term 2d Dept. 2019)

“In the case at bar, defendant relied upon a New Jersey police crash investigation report to demonstrate both that the underlying accident had occurred in New Jersey and that plaintiff’s assignor lived in Texas, thus offering the police report to establish the truth of the matters asserted therein. However, the police report constituted inadmissible hearsay, as the report was not certified as a business record (see CPLR 4518 [a]; Gezelter v Pecora, 129 AD3d 1021 [2015]; Hernandez v Tepan, 92 AD3d 721 [2012]). Consequently, defendant failed to demonstrate the location of the underlying accident or the assignor’s residence. In any event, we note that defendant’s own exhibits—an NF-3 form, invoice for the supplies at issue, and assignment of benefits form—all stated that the assignor lived in Staten Island. Upon the record presented, we find that the Civil Court erred in determining, as to the branch of defendant’s motion seeking dismissal based on forum non conveniens, that defendant’s evidence had sufficiently demonstrated a lack of significant contacts to New York.”

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