Terrones v. Morera

Jun 25, 2002
Versions:295 A.D.2d 254
743 N.Y.S.2d 860
2002 N.Y. App. Div. LEXIS 6889

—Order, Supreme Court, Bronx County (Anne Targum, J.), entered May 9, 2001, which granted defendants’ motion to dismiss the action on the ground of forum non conveniens, denied plaintiffs’ cross motion for a *255default judgment, and granted defendants’ cross motion to compel plaintiffs to accept service of their answer, unanimously modified, on the law, the facts and in the exercise of discretion, to deny defendants’ motion and reinstate the complaint, and otherwise affirmed, without costs.

Defendants, as proponents of the motion to dismiss on grounds of forum non conveniens, failed to meet their burden to establish that a forum other than New York would be more convenient (see, Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479, cert denied 469 US 1108). Indeed, the relevant factors, including the presence in New York of an important New York City police officer witness, strongly militate in favor of resolving this action in New York rather than New Jersey, the alternative forum proposed by defendants (see, Brodherson v Ponte & Sons, 209 AD2d 276).

Plaintiffs’ motion for a default judgment was, however, properly denied since defendants demonstrated a reasonable excuse for their failure to serve a timely answer (see, CPLR 3012 [d]). Contrary to plaintiffs’ contention, under the circumstances presented, in which no default order or judgment was obtained against defendants, it was not necessary for defendants to serve an affidavit of merit in support of their motion to compel plaintiff to accept service of their answer (Mufalli v Ford Motor Co., 105 AD2d 642, 644). Concur—Nardelli, J.P., Mazzarelli, Rosenberger, Lerner and Marlow, JJ.