Marx v. Katz, 20 Misc. 2d 1084

Marx v. Katz

20 Misc. 2d 1084 | N.Y. Sup. Ct. | 1959

Matthew M. Levy, J.

Upon the foregoing papers this motion by defendant to dismiss the action on the ground of forum non conveniens, or, in the alternative, for an order requiring plaintiff to post security for costs, is denied.

This action has been brought by an assignee to recover the sum of $10,000 alleged to have been loaned to defendant by plaintiff’s assignor. Plaintiff is an attorney at law and is a practitioner in this State. She swears that, while she has an “address”, a “domiciliary residence ”, in New Hampshire, her “ actual ” “ home ” “ dwelling ” is at 4621 Waldo Avenue, The Bronx, New York.

Under the circumstances disclosed, plaintiff is deemed a resident of this State within the meaning of the statute requiring *1085a nonresident to post security (Civ. Prac. Act, § 1522; Morek v. Smolak, 245 App. Div. 355). And, as such resident, plaintiff has the right to resort to the courts of this State in an action transitory in nature and the complaint may not be dismissed under the doctrine of forum non conveniens (Wagner v. Braunsberg, 5 A D 2d 564, motion for leave to appeal to the Court of Appeals denied 6 A D 2d 790).