JTS TRADING LIMITED v. ASESORES (2019)

Judgment, Supreme Court, New York County (Saliann Scarpulla, J.), entered October 4, 2018, dismissing the complaint, pursuant to an order, same court and Justice, entered September 25, 2018, which granted defendants' motion to dismiss the complaint on the ground of forum non conveniens, unanimously affirmed, without costs.  Appeal from aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

In determining whether an action should be dismissed for forum non conveniens, plaintiff's choice of forum is entitled to strong deference (Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 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] ).  Among the factors to consider are the residence of the parties, the location of evidence and witnesses, the burden on the New York courts, where the transaction giving rise to the cause of action took place, the applicability of foreign law, and the connection of the action with New York (see id. at 479, 478 N.Y.S.2d 597, 467 N.E.2d 245).

Here, the parties are from Hong Kong and Mexico.  The agreement allegedly breached was executed in Mexico, is governed by Mexican law, and was allegedly breached in Mexico.  Only a single, peripheral witness is present in New York. Accordingly, despite some initial contacts with one defendant's New York representative, the action was properly dismissed (see e.g. Kuwaiti Eng'g Group v. Consortium of Intl. Consultants, LLC, 50 A.D.3d 599, 856 N.Y.S.2d 101 [1st Dept. 2008];  compare American BankNote Corp. v. Daniele, 45 A.D.3d 338, 339, 845 N.Y.S.2d 266 [1st Dept. 2007] ).