BRANDWEIN v. John Does 1–5, Defendants. (2023)

Judgment, Supreme Court, New York County (Louis L. Nock, J.), entered September 14, 2022, dismissing the complaint, and bringing up for reviews decision and order, same court and Justice, entered July 14, 2022, which, insofar as appealed from as limited by the briefs, granted the motion of defendants Michael Hartig and Fernando O. Koatz to dismiss the second through fourth causes of action on the ground of forum non conveniens, unanimously affirmed, without costs.

Notwithstanding any assumption that the plaintiffs have standing to assert the causes of action at bar, the court did not abuse its discretion in dismissing the complaint on the ground of forum non conveniens.  Most of the factors considered by New York courts in deciding whether to retain jurisdiction—the burden on the New York court, the potential hardship on the defendant, the unavailability of an alternative forum in which the plaintiff may bring suit, and whether the transaction out of which the cause of action arose occurred primarily in a foreign jurisdiction – favor a finding that Israel has a greater stake in, and is the proper forum for, this action (Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 479, 478 N.Y.S.2d 597, 467 N.E.2d 245 [1984]).  Most of the relevant actions occurred in Israel while the decedent and defendant Hartig resided there, the relevant medical records and other documents are written in Hebrew and located in Israel, and the decedent's heirs almost entirely reside in Israel, as do most of the witnesses and the decedent's guardian.  New York's retention of jurisdiction would impose a heavy, undue burden upon the court, requiring translation of the Hebrew documents into English and nuanced application of Israeli tort and inheritance law (see Estate of Kainer v. UBS AG, 175 A.D.3d 403, 405, 106 N.Y.S.3d 309 [1st Dept. 2019], affd 37 N.Y.3d 460, 160 N.Y.S.3d 182, 181 N.E.3d 537 [2021] [applicability of foreign law is an important factor in forum non conveniens analysis weighing in favor of dismissal]).  Further, the defendants have consented to Israel's jurisdiction and would suffer no significant hardship from litigating there.

The fact that plaintiffs and the New York Community Bank records and witnesses are in New York is insufficient to justify the court's retention of jurisdiction.  The deposition of the New York witnesses and production of the New York Community Bank records can be conducted via the internet.

We have considered plaintiffs' remaining contentions and find them unavailing.