Barry v. American Home Assur. Co.
| Decision Date | 23 March 1972 |
| Citation | 38 A.D.2d 928,329 N.Y.S.2d 911 |
| Parties | Virginia J. BARRY, Plaintiff-Respondent, v. AMERICAN HOME ASSURANCE COMPANY, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
M. I. Friedman, New York City, for plaintiff-respondent.
P. F. Foley, New York City, for defendant-appellant.
Before MARKEWICH, J.P., and NUNEZ, KUPFERMAN, McNALLY and TILZER, JJ.
Order of the Supreme Court, New York County, entered May 14, 1971, denying motion to dismiss on the ground of Forum non conveniens, reversed on the facts, the law and in the exercise of discretion, without costs and without disbursements, and the motion is granted, defendant having stipulated in its brief to accept the service of process in either Delaware or Pennsylvania.
On October 16, 1970, a chartered aircraft crashed near the Greater Wilmington Airport in the State of Delaware. Earlier in the day, the plane had taken off from Teterboro, New Jersey with a single pilot, Rudolph J. Halamka, and one passenger, Josiah M. Scott. Both the pilot and Scott were killed as a result of the claimed crash.
Previously, the passenger Scott had acquired in Delaware through a Delaware broker a $500,000 accidental death policy on his life which policy was issued by the defendant American. Thereafter, the plaintiff was made a beneficiary of the policy. Ten witnesses, all residents of the Delaware-Pennsylvania area, have signed affidavits with reference to their observations before the crash and after. The owner of the aircraft involved, as well as the repair and maintenance men are in the Delaware and Pennsylvania area. The Federal Aviation agency which made a study of the accident and their investigators are all residents of the Delaware and Pennsylvania area. The convenience of the witnesses to and the investigators of the facts and cause of the occurrence would best be served by a trial in the State of Delaware. Slavin v. Whispell, 5 A.D.2d 296, 171 N.Y.S.2d 892. In addition, both Mr. Scott and Miss Barry were residents of the Delaware and Pennsylvania area, as was the pilot. Apparently, Miss Barry has since married and is a resident of London, England. In Silver v. Great American Insurance Company, 29 N.Y.2d 356, 328 N.Y.S.2d 398, 278 N.E.2d 619, decided after the order herein, our Court of Appeals held that the application of the doctrine of Forum non conveniens should turn on considerations of justice, fairness and conveniences and not solely on the residence...
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