835 N.Y.S.2d 606 | N.Y. App. Div. | 2007
In an action to recover damages for personal injuries, in which a third-party action was interposed for indemnification or contribution, the defendants third-party plaintiffs Land Cargo, Inc., and Fabio A. Garro, sued herein as Alberto Garro, appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Kitzes, J.), entered December 30, 2005, as granted those branches of the motion of the third-party defendant Bigler Trading Company, L.E, which were pursuant to CFLR 327 and 3211 (a) (1) to dismiss the third-party complaint insofar as asserted against it, and granted that branch of the separate motion of the third-party defendant Chemquest, Inc., which was pursuant to CFLR 3211 (a) (8) to dismiss the third-party complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
The Supreme Court properly determined that dismissal of the third-party action insofar as asserted by the defendant third-party plaintiff Land Cargo, Inc. (hereinafter Land Cargo), as against the third-party defendant Bigler Trading Company, L.E (hereinafter Bigler), was warranted based on a forum selection clause contained in a bill of lading signed by Bigler and the de
The Supreme Court also properly dismissed the third-party action insofar as asserted by Garro as against Bigler on the ground of forum non conveniens. On a motion to dismiss on the ground of forum non conveniens, the burden is on a defendant challenging the forum to demonstrate relevant private or public interest factors which militate against accepting the litigation (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479 [1984], cert denied 469 US 1108 [1985]; cf. Korea Exch. Bank v A.A. Trading Co., 8 AD3d 344, 345 [2004]). The court has discretion as to whether to retain jurisdiction (see National Bank & Trust Co. of N. Am. v Banco De Vizcaya, 72 NY2d 1005, 1007 [1988], cert denied 489 US 1067 [1989]; Islamic Republic of Iran v Pahlavi, supra at 479). The court’s determination generally will not be disturbed on appeal unless the court has failed to properly consider all the relevant factors (see National Bank & Trust Co. of N. Am. v Banco De Vizcaya, supra at 1007; Islamic Republic of Iran v Pahlavi, supra at 479; Cheggour v R’Kiki, 293 AD2d 507, 508 [2002]). Among the factors the court must weigh are “the residency of the parties, the potential hardship to proposed witnesses, the availability of an alternative forum, the situs of the underlying action, and the burden which will be imposed upon the New York courts, with no one single factor controlling” (Wentzel v Allen Mach., 277 AD2d 446, 447 [2000]). Here, the Supreme Court considered the relevant factors involved. Under the circumstances of this case, the court’s determination should not be disturbed (cf. Cheggour v R’Kiki, supra).
The Supreme Court also properly found that personal jurisdiction over the third-party defendant Chemquest, Inc. (herein
In view of our determination, we need not reach the parties’ remaining contentions. Crane, J.E, Krausman, Covello and Garni, JJ., concur.