RX Warehouse Pharm., Inc. v 21st Century Ins. Co. (2022 NY Slip Op 50375(U))

Law Office of Damin J. Toell, P.C., Damin J. Toell of counsel, for appellant. Law Offices of Buratti, Rothenberg & Burns, Kenneth F. Popper of counsel, for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Nicholas W. Moyne, J.), entered April 5, 2021. The order granted the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens and denied plaintiff’s cross motion for summary judgment as moot.

ORDERED that the order is reversed, with $30 costs, the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens is denied, and the matter is remitted to the Civil Court for a determination of the remaining branch of defendant’s motion and the merits of plaintiff’s cross motion.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for an order dismissing the complaint on the ground of forum non conveniens (see CPLR 327), arguing that the action should have been commenced in Pennsylvania, where the assignor resides and the insurance policy was issued, or New Jersey, where the accident had allegedly occurred. In the alternative, defendant argued that the complaint should be dismissed as the statute of limitations had expired under the laws of both Pennsylvania and New Jersey, either of which should be applied in this case. Plaintiff opposed defendant’s motion and cross-moved for summary judgment. By order entered April 5, 2021, the Civil Court granted the branch of [*2]defendant’s motion seeking to dismiss the complaint pursuant to CPLR 327, without prejudice to plaintiff commencing a new action in New Jersey. The court did not consider the remaining branch of defendant’s motion and denied plaintiff’s cross motion for summary judgment as moot.

Under the doctrine of forum non conveniens, a court may dismiss an action when, although it may have jurisdiction, it determines that, “in the interest of substantial justice the action should be heard in another forum” (CPLR 327 [a]). The doctrine is flexible and requires the balancing of many factors, such as “the residency of the parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon the New York courts” (Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966 [2009]; see Xiu Zhang Yin v Bennet, 78 AD3d 936 [2010]).

In the case at bar, defendant relied upon a New Jersey police crash investigation report to demonstrate that the underlying accident had occurred in New Jersey and, thus, that the action should be dismissed based upon forum non conveniens. The police report, offered for the truth of the matter asserted therein, constituted inadmissible hearsay, as the report was not certified as a business record (see CPLR 4518 [a]; Gezelter v Pecora, 129 AD3d 1021 [2015]; Hernandez v Tepan, 92 AD3d 721 [2012]; Monroe v Foremost Signature Ins. Co., 66 Misc 3d 128[A], 2019 NY Slip Op 52042[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Longevity Med. Supply, Inc. v 21st Century Ins. Co., 66 Misc 3d 128[A], 2019 NY Slip Op 52041[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Moreover, defendant could not rely on the copy of the NF-2 no-fault application, which stated where the accident occurred, because it was first submitted in defendant’s reply papers (see GJF Constr. Corp. v Cosmopolitan Decorating Co., Inc., 35 AD3d 535 [2006]; New Millennium Med. Imaging, P.C. v American Tr. Ins. Co., 50 Misc 3d 145[A], 2016 NY Slip Op 50259[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). In any event, defendant failed to submit sufficient evidence to support a dismissal based on forum non conveniens (see CPLR 327 [a]). The evidence showed that plaintiff is a New York corporation and that defendant has offices in New York, and defendant failed to point to any hardship for possible witnesses or any burden on the New York courts (see Kefalas v Kontogiannis, 44 AD3d 624 [2007]). Upon the record presented, we find that the Civil Court erred in granting the branch of defendant’s motion seeking dismissal based on forum non conveniens.

Accordingly, the order is reversed, the branch of defendant’s motion seeking to dismiss the complaint on the ground of forum non conveniens is denied, and the matter is remitted to the Civil Court for a determination of the remaining branch of defendant’s motion and the merits of plaintiff’s cross motion.

ALIOTTA, P.J., WESTON and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 22, 2022