Demenus v. Sylvester

• Decision Date: 23 January 1989
• Citation: 146 A.D.2d 668,537 N.Y.S.2d 43
• Parties: Manfred DEMENUS, et al., Appellants, v. Herbert SYLVESTER, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 43

537 N.Y.S.2d 43

146 A.D.2d 668

Manfred DEMENUS, et al., Appellants, v. Herbert SYLVESTER, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Jan. 23, 1989.

Cooperman Levitt & Winikoff, P.C., New York City (Alan M. Lebensfeld and Jack B. Levitt, of counsel), for appellants.

Hollyer, Jones, Brady, Smith, Troxell, Barrett & Chira, New York City (A. Rene Hollyer, of counsel), for respondents.

Before BRACKEN, J.P., and RUBIN, SULLIVAN and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for an accounting, the plaintiffs appeal from an order of the Supreme Court, Nassau County (O'Shaughnessy, J.), dated June 17, 1988, which, inter alia, granted the defendants' motion to dismiss the action on the ground of forum non conveniens, and denied their cross motion for a preliminary injunction.

ORDERED that the order is affirmed, without costs or disbursements, on condition that within 20 days of the service upon them of a copy of this decision and order, with notice of entry, the defendants Herbert Sylvester and Colette Speyer stipulate to submit to the jurisdiction of the United States District Court for the District of New Jersey in the action in that court entitled Demenus v. Sylvester bearing Index No. 87-3428; and it is further,

ORDERED that in the event the condition is not complied with, then the order is modified by deleting therefrom the provision granting that branch of the defendants' motion which was to dismiss the action as against the defendants on the ground of forum non conveniens, and substituting therefor a provision denying that branch of the defendants' motion; as so modified, the order is affirmed, with costs to the plaintiffs.

New York courts are not compelled to retain jurisdiction in any case which has no substantial nexus to New York (see, e.g., Banco Ambrosiano v. Artoc Bank & Trust, 62 N.Y.2d 65, 73, 476 N.Y.S.2d 64, 464 N.E.2d 432; Silver v. Great Am. Ins. Co., 29 N.Y.2d 356, 361, 328 N.Y.S.2d 398, 278 N.E.2d 619) and the mere fact that one or more of the parties may be residents of this State does not preclude the court from exercising its discretion to dismiss in an appropriate case (CPLR 327[a]; Moezinia v. Moezinia, 124 A.D.2d 571, 572, 507 N.Y.S.2d 716). Here, both the instant action and the action commenced in the United States District Court for the District of New Jersey by some of the plaintiffs in the instant action shortly after the commencement of the instant action...