JONES v. EON LABS INC (2007)

Order, Supreme Court, New York County (Louis B. York, J.), entered June 8, 2007, which denied defendant's motion to dismiss the complaint on the ground of forum non conveniens, unanimously affirmed, with costs.

Defendant's motion, made some two years after the commencement of this action, and after significant progress in discovery, was untimely (see Anagnostou v. Stifel, 204 A.D.2d 61, 611 N.Y.S.2d 525 [1994];  Corines v. Dobson, 135 A.D.2d 390, 392-393, 521 N.Y.S.2d 686 [1987] ).   Defendant's purported excuse for waiting to assert this motion until co-defendant Pfizer, Inc. had been dismissed from the case is unpersuasive.   Pfizer's alleged substantial connections to New York did not alter any of the purported inconveniences that defendant now asserts, and defendant has not demonstrated that Pfizer's connections to New York were any more substantial than its own.   Moreover, defendant has failed to carry its burden of demonstrating that its inconvenience strongly favors removal of this action to Virginia (see Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 479, 478 N.Y.S.2d 597, 467 N.E.2d 245 [1984], cert. denied 469 U.S. 1108, 105 S.Ct. 783, 83 L.Ed.2d 778 [1985];  Bank Hapoalim [Switzerland] Ltd. v. Banca Intesa S.p.A., 26 A.D.3d 286, 810 N.Y.S.2d 172 [2006];  Corines, 135 A.D.2d at 391, 521 N.Y.S.2d 686).   While many witnesses do appear to reside in Virginia, the very discovery statute cited by defendant (Va Code Ann § 8.01-411), through which it would assertedly be forced to operate to obtain depositions and other discovery, provides a simplified procedure.