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Civil Court, City of New York,

SUFFOLK CHIROPRACTIC CENTER, as Assignee of Ida Harvell, Plaintiff, v. GEICO INSURANCE CO., Defendant.

Decided: February 07, 1997

Short & Billy, P.C., New York City (Thomas Murphy, of counsel), for defendant. Karp, Silver, Glinkenhouse & Floumanhaft, Far Rockaway (Kimberly A. Levine, of counsel), for plaintiff.

To what extent, if any, may the doctrine of forum non conveniens serve as the basis for the dismissal of an action pending in the Civil Court of the City of New York, Queens County, when it is alleged that the more convenient forum is in Suffolk County?   There appears to be no appellate authority on this issue, and the only two officially reported lower court opinions allowing for such dismissal, which are two decades old, would appear to be contrary to recent appellate developments, and are further clearly distinguishable from the immediate issue facing the court.

 The defendant moves herein, pursuant to CPLR 327, to dismiss the action to recover no-fault benefits relating to the purported nonpayment of a bill and claim in the amount of $829.00, based on the doctrine of forum non conveniens.   According to the defendant, this action has no nexus with Queens County, since the plaintiff's assignor Ida Harvell resides in Suffolk County, the medical services were rendered by the plaintiff assignee in Suffolk County, and the “defendant's claims office handling the matter is located in Nassau County.”   Under these circumstances, the defendant argues, the appropriate forum is in Suffolk County, and therefore this action must be dismissed, as the court lacks the power to change venue to a county outside its jurisdiction (See Personnel Career Services, Inc. v. Pizza Huts, 149 Misc.2d 729, 730, 573 N.Y.S.2d 356).

At the outset it is important to note that it is conceded that the defendant transacts business and maintains a claims office in Queens County.   Pursuant to NYCCA Section 305(b), the defendant is deemed a resident of Queens County, and for the purposes of this motion, the court would appear to have personal and subject matter jurisdiction (See Chehebar v. State Farm, NYLJ, 6/27/96, p. 29, col. 6;  City & Suburban Delivery Systems, Inc. v. Green's Cards & Gifts, Inc., 167 Misc.2d 283, 639 N.Y.S.2d 681).

 Nevertheless, when Rule 327 of the CPLR was proposed as a codification of the forum non conveniens doctrine set forth in Silver v. Great American Insurance Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398, 278 N.E.2d 619, its purpose was enunciated as follows:  “Under this equitable doctrine, a court, even though it has jurisdiction, can decline to entertain the suit if it finds, upon examining all the relevant factors of private inconvenience and public interest, that the forum is seriously inconvenient for the trial of the action and that a more appropriate forum is available.”  (See, 10th Ann. Report of Jud. Conf. on CPLR, reprinted in 18th Ann. Report of N.Y.Jud.Conf., Appendix D, at A 48).   The court need not review the historical underpinnings of this doctrine which was originally known as forum non competens, as it has been extensively treated in a number of law reviews (See Barrett, The Doctrine of Forum Non Conveniens, 35 California Law Review 380;  Blair, the Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Columbia Law Review 1;  Note, 73 Harvard Law Review 909;  and Note, 49 Albany Law Review 528).   Suffice it to say, that CPLR 327 is generally applied only by the New York State Supreme Court, enabling it to refuse to entertain out-of-state actions, involving nonresidents, where it otherwise has jurisdiction (See 1 Carmody-Wait 2d Section 2:64, p. 112).   In the absence of authority to transfer an action from one state to another, the granting of a forum non conveniens motion leads to a dismissal of the case.   However, the New York State Supreme Court has the authority, pursuant to CPLR 510(3), to transfer the venue of an action within the State from one county to another where “the convenience of material witnesses and the ends of justice will be promoted by the change.”   This mirrors the classical forum non conveniens standard as set forth in Koster v. Lumbermens Mutual Cas. Co., (1947) 330 U.S. 518, 527, 67 S.Ct. 828, 833, 91 L.Ed. 1067:  “[The] ultimate inquiry is where trial will best serve the convenience of the parties and the ends of justice.”   Since the New York State Supreme Court has general statewide jurisdiction there is no need for a forum non conveniens dismissal in order to effectuate a transfer of venue from one county to another.

 What then is the authority for the New York City Civil Court, a court of limited jurisdiction, to dismiss an action when pending in a county of the City of New York, based on forum non conveniens, so that it may be reinstituted in a more convenient county outside of the City of New York, e.g. in Suffolk County?   A study of the language of CPLR 327(a) clearly indicates that it was originally intended to be applied only for out-of-state situations:  “When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just.   The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action.”   (emphasis added).   Conspicuous in its absence is any mention in CPLR 327(a) of “domicile or residence in a county of this state ”, nor is there any authority in the New York City Civil Court Act allowing for a forum non conveniens intrastate dismissal.   The only authority cited by the legal commentaries for the application of the doctrine of forum non conveniens in the lower courts is the sparse case law of Suriano v. Hosie, 59 Misc.2d 973, 302 N.Y.S.2d 215 and Roseman v. McAvoy, 92 Misc.2d 1063, 401 N.Y.S.2d 988 (See Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 29A, CCA 301, at 100, and UDCA 202, at 463;  1 Carmody-Wait 2d Section 2:64, p. 112, supra).   Both of these cases involve serious personal jurisdictional questions which were waived, and had no nexus whatsoever with their respective counties in that none of the parties resided in the subject forum and the causes of action arose outside said forum.   As noted earlier, the matter before this court involves a defendant who is a resident of Queens County and is therefore distinguishable from the two cases cited above.   Furthermore, in both cases, the court sua sponte applied the doctrine of forum non conveniens without any authority to do so (See VSL Corp. v. Dunes Hotels & Casinos, 70 N.Y.2d 948, 524 N.Y.S.2d 671, 519 N.E.2d 617;  Matter of Bernz, 139 A.D.2d 444, 527 N.Y.S.2d 221).   Finally, even though the Roseman case was decided in 1978, no reference whatsoever is made of CPLR 327, which had been in effect since 1972.

Instead of relying on questionable precedent for the continued application of the doctrine of forum non conveniens in the lower courts, perhaps the legislature might consider amending the second sentence in CPLR 327(a) to read, “the domicile or residence in a county of the state, etc.,” or, in the alternative, enacting specific “forum non conveniens” sections in various lower court acts.

 Even assuming that the doctrine of “forum non conveniens” may be invoked by the New York City Civil Court, the defendant has failed to satisfy its “heavy burden” of showing that plaintiff's choice of forum should be disturbed on the ground that Queens County is an inconvenient forum in which to litigate this matter (See Banco Ambrosiano v. Artoc Bank & Trust, 62 N.Y.2d 65, 74, 476 N.Y.S.2d 64, 464 N.E.2d 432;  Insurance Co. of State of Pa v. Cigna, 162 A.D.2d 390, 557 N.Y.S.2d 43;  and Highgate Pictures, Inc. v. DePaul, 153 A.D.2d 126, 549 N.Y.S.2d 386).   It is well settled that “unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed” (See Gulf Oil Corp v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055;  Waterways Ltd v. Barclays Bank, 174 A.D.2d 324, 327, 571 N.Y.S.2d 208;  and Temple v. Temple, 97 A.D.2d 757, 468 N.Y.S.2d 388).   The burden rests upon the defendant challenging the forum to demonstrate relevant private or public interest factors which militate against litigation going forward in this county (See Islamic Republic v. Pahlavi, 62 N.Y.2d 474, 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;  Stamm v. Deloitte and Touche, 202 A.D.2d 413, 608 N.Y.S.2d 498;  Neville v. Anglo American, 191 A.D.2d 240, 594 N.Y.S.2d 747;  and Corines v. Dobson, 135 A.D.2d 390, 521 N.Y.S.2d 686).   Among the factors which the court must weigh in deciding a motion to dismiss on such grounds are the residency of the parties, the potential hardship to proposed witnesses and the burden which will be imposed upon Queens Civil Court, with no single factor controlling (See Stamm v. Deloitte, 202 A.D.2d 413, supra, at 414, 608 N.Y.S.2d 498).   A court's failure to take into account the various relevant factors entitled to consideration may be grounds for reversal (See Blits v. Blits, 65 N.Y.2d 1014, 494 N.Y.S.2d 99, 484 N.E.2d 128).   While defendant's residence in Queens County is not a determinative factor, it is an important one (See Bock v. Rockwell, 151 A.D.2d 629, 630, 543 N.Y.S.2d 89;  also see Yoshida Printing Co. v. Aiba, 213 A.D.2d 275, 624 N.Y.S.2d 128).   The defendant has failed to identify any nonparty witness who resides in Suffolk County and would be inconvenienced by a trial in Queens County (See Bock v. Rockwell, 151 A.D.2d 629, supra at 630, 543 N.Y.S.2d 89;  O'Connor v. Bonanza Int'l., 129 A.D.2d 569, 514 N.Y.S.2d 67).   Nor has defendant indicated how the drive from Suffolk County to Queens County is any more unduly burdensome than the drive from New Jersey to New York City, which was found not to be a sufficient factor to warrant a forum non conveniens dismissal (See Brodherson v. V. Ponte & Sons, 209 A.D.2d 276, 618 N.Y.S.2d 350).   Moreover, defendant failed to make any showing with respect to the materiality of the testimony of prospective witnesses, and could not demonstrate that the testimony would be unobtainable here in Queens County (See Anagnostou v. Stifel, 204 A.D.2d 61, 62, 611 N.Y.S.2d 525;  also see Yoshida Printing Co. v. Aiba, 213 A.D.2d 275, 624 N.Y.S.2d 128, supra).   Finally, the subject action seeking to recover no-fault benefits is a basic, uncomplicated dispute of the type resolved in this court on a frequent and expeditious basis, and therefore, the burden of this action on the Queens Civil Court is minor (See Sambee Corp. v. Moustafa, 216 A.D.2d 196, 198, 628 N.Y.S.2d 664).   The fact that defendant is present on a regular basis in this court as a plaintiff in the furtherance of its business belies any allegations of serious inconvenience (See Irrigation & Industrial Development Corp. v. Indag, 37 N.Y.2d 522, 375 N.Y.S.2d 296, 337 N.E.2d 749).   As a final footnote, the court rejects defendant's contention that the location of the claims office handling this matter in Nassau County is a further source of inconvenience.   The court is of the opinion that which claims office the defendant assigns this case to is irrelevant.   The defendant has numerous claims offices throughout New York State and can assign cases to them at will.

In sum, the court finds that defendant's forum non conveniens argument is unavailing, and, thus, the instant motion seeking to dismiss the complaint on that basis is denied in its entirety.