Cesar v. United Technology of New York
| Decision Date | 13 February 1990 |
| Citation | 562 N.Y.S.2d 903,148 Misc.2d 918 |
| Parties | , 1990 A.M.C. 1595 Julio CESAR and Ana Marie DelGatte De Stajano, as Parents of Chantal DelGatte Stajano, Plaintiffs, v. UNITED TECHNOLOGY OF NEW YORK, United Technologies Corporation and Sikorsky Aircraft, Inc., Defendants. |
| Court | New York Supreme Court |
(Edward Cherney, of counsel), Kenneth Heller, New York City, for plaintiffs.
Mendes & Mount, James J. Finerty, New York City, for defendants.
When this action was previously dismissed under CPLR 327 upon the urging of the defendants that New York was an inconvenient forum, the courts were obviously persuaded there was a better alternative forum in which the suit could be brought. Varkonyi v. Varig, 22 N.Y.2d 333, 338, 292 N.Y.S.2d 670, 239 N.E.2d 542; Bader & Bader v. Ford, 66 A.D.2d 642, 645, 414 N.Y.S.2d 132. If there were no better alternative forum available, New York courts would retain jurisdiction even though the nexus with the state is slight. Aboujdid v. Gulf Aviation, 108 Misc.2d 175, 437 N.Y.S.2d 219, aff'd 86 A.D.2d 564, 448 N.Y.S.2d 427. When the motion to dismiss is granted pursuant to CPLR 327, provision is made that the dismissal may be "on any conditions that may be just."
Thus, it is standard practice for a court, when dismissing a case for forum non conveniens, to condition an order upon defendant's accepting service, and frequently requiring waiver of the defense of Statute of Limitations. E.g. Bewers v. American Home Products, 99 A.D.2d 949, 472 N.Y.S.2d 637; aff'd. 64 N.Y.2d 630, 485 N.Y.S.2d 39, 474 N.E.2d 247; Hart v. General Motors Corp., 129 A.D.2d 179, 517 N.Y.S.2d 490. What happens when there is such a dismissal and defendant fails to abide by the conditions? There appear to be no reported cases dealing with this situation. This case, together with the similar cases involving motions "28", "29", "30" and "32" of this calendar, raise that question, and therefore those motions are treated together.
The actions involved arise out of the crash and explosion of two helicopters originally built by defendants, which caused wide-spread damage to adults and children standing on the beach below. The accident occurred at an air show in Uruguay to demonstrate the capabilities of the helicopters, and each of the plaintiffs on these five motions, who sustained injuries in the accident were children at the time.
Justice Arnold G. Fraiman, in granting the motion by the defendants to dismiss all the actions for forum non conveniens conditioned the dismissal on defendants agreeing to appear in Uruguay, and on the further condition that they would not raise the Statute of Limitations as a defense with respect to actions timely brought in New York. The Appellate Division, in affirming, modified the order to the extent of permitting a transfer of the action to Connecticut, where defendants were headquartered, but also affirming the condition that the Statute of Limitations would not be raised as a defense in any action outside New York. Cappellini v. United Technology of N.Y., 79 A.D.2d 593, 433 N.Y.S.2d 807, lv. to app. den. 53 N.Y.2d 796, 56 N.Y.2d 984, 453 N.Y.S.2d 681, 439 N.E.2d 396.
Actions were then commenced in the United States District Court for the District of Connecticut by these plaintiffs, among others. Defendants thereupon moved to dismiss on grounds of the Statute of Limitations. Despite the orders of the N.Y. courts, the United States District Judge granted summary judgment on the issue of the Statute of Limitations, and at the urging of defendants on November 6, 1985 dismissed the complaints of all adult plaintiffs and of the erstwhile minors, Tchodjklian and Miguel Angel Lopez, as barred by New York law. On January 29, 1987, the District Court dismissed the complaints of the remaining minors, Monica Secco Jack, Chantal DelGatte Stajano and Alberto Anibal Lopez on the grounds that even though their actions were timely brought in New York, they were barred by the Connecticut Statute of Limitations. Since there is no tolling provision under Connecticut law, the court held that the infants' right to sue in Connecticut had expired during their minority.
The orders of the New York Appellate Division of March 20, 1980 and December 30, 1980 had required as a condition that defendants waive the Statute of Limitations as a defense "except to the extent already imposed as a defense in this action", in any actions recommenced outside New York. When, in the face of the limitations imposed by the New York courts to protect the claims of infants whose rights had been extended by the New York tolling statute, the defendants nevertheless moved for dismissal of their actions on Statute of Limitations grounds in Connecticut, they failed to adhere to the conditions postulated for removal of the cases from New York. 1 At defendants' urging, the infant cases were dismissed for non-compliance with the Statute of Limitations, although it was plain that the New York order intended to exempt from an assertion of such a defense those plaintiffs who were infants at the time of the accident and whose rights to sue had been extended by the tolling provision of New York CPLR 208 at the time litigation with respect to this accident was commenced in New York.
On occasion, a conditional order of dismissal will contain an express provision that if the condition is not complied with, the motion to dismiss will be deemed to have been denied. See Demenus v. Sylvester, 146 A.D.2d 668, 537 N.Y.S.2d 43; Westwood Associates v. Deluxe General, Inc., 73 A.D.2d 572, 422 N.Y.S.2d 1014. No such express provisions spelling out the consequences of non-compliance with the conditions were present here. It must be obvious, however, that whenever a condition is imposed as the basis for an order of dismissal, it is implicit that non-compliance will result in a denial of the motion. Defendants, having succeeded in transferring this case to another jurisdiction on the basis of "convenience", used that transfer as the means for asserting a Statute of Limitations defense that was not available in New York. This was in direct contravention of the orders of this court and of the Appellate Division, and therefore the prior conditional orders dismissing the claims of these infant plaintiffs must be deemed denied, the condition not having been fulfilled. Accordingly, the motions by plaintiffs to restore their cases is granted. Since these cases were never on the calendar, they cannot be "restored to the calendar", but are restored to the pre-trial docket of this court.
Defendants have made a cross-motion, evidently based on the premise that these infant actions might be reinstated by the court, to dismiss the actions unconditionally here on the ground (1) that these actions are barred by the Statute of Limitations in New York, (2) that plaintiffs' suits here are premature since they had failed to appeal the Connecticut judgments and (3) that the Connecticut judgments are res judicata. Given the conditions imposed by the New York orders of dismissal, defendants had violated the conditions imposed not to raise the Statute of Limitations defense in Connecticut, and hence the New York actions were revived and restored by that very fact. Appealing the District Court judgments was not a burden which plaintiffs were obliged to shoulder, since whether there would ultimately have been an affirmance or reversal, the conditions for New York relinquishing jurisdiction had nevertheless been violated. Although the United States District Judge in Connecticut dismissed the actions of Jack, Stajano and Alberto Lopez as barred by the Connecticut Statute of Limitations, and the actions of Tchodjklian and Miguel Lopez as barred under the New York Statute of Limitations, because of defendants' non-compliance with the orders of the New York courts they are estopped from asserting that either of these decisions stand as res judicata, and preclude restoration and revival of the actions in New York.
The question, then, which is now presented by the cross- motion, is whether the actions commenced by these once-infant plaintiffs originally in New York were timely. Justice Fraiman, whose order was affirmed, had denied unconditional dismissal as to those who had been infants at the time of the accident if their action was not barred by the tolling provisions of CPLR 208. CPLR 208 provides:
"If a person entitled to commence an action is under a disability because of infancy ... and the time otherwise limited for commencing the action is three years or more and expires no later than three years after the disability ceases ... the time within which the action must be commenced shall be extended to three years after the disability ceases * * *."
The complaints of each of the plaintiffs in New York alleged negligence, breach of warranty and strict products liability. These personal injury actions are governed by a three year Statute of Limitations. Hence, under the tolling provisions, each infant had three years...
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