GONZALEZ v. LEBENSVERSICHERUNG AG (2003)

Order, Supreme Court, New York County (Richard Lowe III, J.), entered on or about February 25, 2002, which granted defendants' motion to dismiss the complaint on grounds of forum non conveniens and res judicata, unanimously modified, on the law, to deny the motion to the extent that it is premised on the ground of res judicata, and otherwise affirmed, without costs.

 The judgment entered in Madrid, Spain, cannot, as a matter of law, be considered a final judgment for purposes of res judicata, since uncontroverted expert testimony submitted on behalf of plaintiff raises a question as to whether that judgment, during the pendency of the direct appeal therefrom, is final under Spanish law (cf.  Matter of Hahnel, 88 Misc.2d 524, 527-528, 389 N.Y.S.2d 970, affd. 58 A.D.2d 531, 395 N.Y.S.2d 395, lv. denied 43 N.Y.2d 644, 402 N.Y.S.2d 1026, 373 N.E.2d 995).   Dismissal on the ground of forum non conveniens, on the other hand, was a proper exercise of the motion court's discretion (see e.g. Union Bancaire Privee v. Nasser, 300 A.D.2d 49, 751 N.Y.S.2d 440).   The motion court considered all relevant factors (see Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478-479, 478 N.Y.S.2d 597, 467 N.E.2d 245, cert. denied 469 U.S. 1108, 105 S.Ct. 783, 83 L.Ed.2d 778) and properly concluded that New York was not a convenient forum for this litigation involving a contract entered into in Spain and entities, persons and events predominantly situated there.