CONTINENTAL INSURANCE COMPANY v. GARLOCK SEALING TECHNOLOGIES LLC

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Supreme Court, Appellate Division, First Department, New York.

CONTINENTAL INSURANCE COMPANY, Plaintiff-Respondent, v. GARLOCK SEALING TECHNOLOGIES, LLC, et al., Defendants-Appellants.

Decided: November 22, 2005

TOM, J.P., ANDRIAS, FRIEDMAN, SULLIVAN, MALONE, JJ. Covington & Burling, Washington, DC (Laird Hart, of the District of Columbia Bar, admitted pro hac vice, of counsel), for appellants. Carroll, Burdick & McDonough LLP, San Francisco, CA (Gretchen A. Ramos, of the California Bar, admitted pro hac vice, of counsel), for respondent.

Order, Supreme Court, New York County (Judith J. Gische, J.), entered on or about April 22, 2005, which, to the extent appealed from as limited by the brief, denied defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(4) or CPLR 327, unanimously affirmed, with costs.

Defendants did not demonstrate, in support of their motion to dismiss on the ground of forum non conveniens, that the interests of substantial justice would be served by moving the action to the proposed alternative forum of Pennsylvania (see CPLR 327;  Grizzle v. Hertz Corp., 305 A.D.2d 311, 312, 761 N.Y.S.2d 163 [2003] ).   Indeed, our review of the record (see Nguyen v. Banque Indosuez, 19 A.D.3d 292, 294, 797 N.Y.S.2d 89 [2005] ) indicates that there is a substantial nexus between this action and New York, five of the insurance policies at issue having been issued, negotiated, brokered and paid for here and the circumstances giving rise to the underlying actions having in large part occurred here (see Seneca Ins. Co., Inc. v. Lincolnshire Mgt., Inc., 269 A.D.2d 274, 275, 703 N.Y.S.2d 127 [2000];  Employers Ins. of Wausau v. Am. Home Prods. Corp., 207 A.D.2d 1, 2, 620 N.Y.S.2d 59 [1994] ).   Defendants made no showing that retention of the action would unduly burden New York courts (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] ).   While any choice of law issues presented by this litigation are not yet ripe for adjudication, New York courts would be perfectly capable of and would not be unduly burdened by applying Pennsylvania law, should the need arise (see Yoshida Printing Co., Ltd. v. Aiba, 213 A.D.2d 275, 624 N.Y.S.2d 128 [1995] ).

In view of this action's strong connection to this jurisdiction, the motion court properly exercised its discretion in declining to grant that branch of defendants' motion seeking dismissal of the action on the ground that another similar action between the parties, temporally proximate to this one, is pending in Pennsylvania (see CPLR 3211[a][4];  and see San Ysidro Corp. v. Robinow, 1 A.D.3d 185, 187, 768 N.Y.S.2d 191 [2003];  White Light Prods., Inc. v. On the Scene Prods., Inc., 231 A.D.2d 90, 93, 660 N.Y.S.2d 568 [1997] ).