Barry v. American Home Assurance Co.
| Decision Date | 05 October 1972 |
| Citation | 31 N.Y.2d 684,337 N.Y.S.2d 259 |
| Parties | , 289 N.E.2d 180 Virginia J. BARRY, Appellant, v. AMERICAN HOME ASSURANCE CO., Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from the Supreme Court, Appellate Division, First Department, 38 A.D.2d 928, 329 N.Y.S.2d 911. Melvin I. Friedman and Gerald A. Robbie, New York City, for appellant.
Patrick F. Foley, New York City, for respondent.
Suit was brought for breach of contract for payment of life insurance. The Supreme Court, New York County, Alfred M. Ascione, J., entered order denying motion to dismiss on ground of forum non conveniens and the defendant insurer appealed.
The Appellate Division reversed the order and granted the motion. It held that where deceased had acquired in Delaware a $500,000 accidental death policy, the aircraft crashed in Delaware, the witnesses and investigators were residents of Delaware-Pennsylvania area, and owner of aircraft as well as repair and maintenance men were in the Delaware and Pennsylvania area, convenience of witnesses would be best served by trial in Delaware. The plaintiff appealed.
In the Court of Appeals, the appellant asserted that a dismissal under the doctrine of forum non conveniens was not justified because New York was a reasonable and appropriate forum and that the plaintiff would be prejudiced by trial in Delaware or Pennsylvania.
Order affirmed, without costs (see Silver v. Great Amer. Ins. Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398, 278 N.E.2d 619). The defendant-respondent has stipulated--through counsel--that it will accept service of process in either Pennsylvania or Delaware, if the plaintiff elects to bring suit in one or the other of those jurisdictions, and that it will waive any defense based upon the statute of limitations.
All concur.
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Melville v. American Home Assur. Co., Civ. A. No. 73-1398.
...its waiving the statute of limitations. Barry v. American Home Assurance Co., 38 A.D.2d 928, 329 N.Y.S.2d 911; aff'd 31 N.Y.2d 684, 337 N.Y.S.2d 259, 289 N.E.2d 180 (1972). Thence, Ms. Melville, who was then a citizen of Pennsylvania, brought this diversity III. The Facts Adduced at Trial T......
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...Co., Inc., 41 A.D.2d 918, 343 N.Y.S.2d 608; Barry v. American Home Assurance Co., 38 A.D.2d 928, 329 N.Y.S.2d 911, aff'd 31 N.Y.2d 684, 337 N.Y.S.2d 259, 289 N.E.2d 180). Settle order on ...
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...served by granting the motion to dismiss". Barry v. American Home Assurance Co., 38 A.D.2d 928, 329 N.Y.S.2d 911, Aff'd 31 N.Y.2d 684, 337 N.Y.S.2d 259, 289 N.E.2d 180. See also Al Nyman & Son v. United States Lines, 44 A.D.2d 516, 353 N.Y.S.2d 8; Mirabella v. Banco Industrial De La Republi......
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...just conditions. In a Post-Silver case, Barry v. American Home Assurance Company, 38 A.D.2d 928, 329 N.Y.S.2d 911, aff'd 31 N.Y.2d 684, 337 N.Y.S.2d 259, 289 N.E.2d 180, the importance of the convenience of the witnesses was recognized. In dismissing the complaint in the latter case because......