Martin v. Mieth

• Decision Date: 27 November 1974
• Citation: 362 N.Y.S.2d 853,321 N.E.2d 777,35 N.Y.2d 414
• Parties: , 321 N.E.2d 777, 92 A.L.R.3d 792 Lisa MARTIN, Respondent, v. Erna H. MIETH, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 853

362 N.Y.S.2d 853

35 N.Y.2d 414, 321 N.E.2d 777, 92

A.L.R.3d 792

Lisa MARTIN, Respondent, v. Erna H. MIETH, Appellant.

Court of Appeals of New York.

Nov. 27, 1974.

Sidney A. Schwartz and Irwin H. Haut, New York City, for appellant.

Charles F. McGuire and Cyrus M. Diamond, New York City, for respondent.

WACHTLER, Judge.

On December 20, 1970 the plaintiff, Lisa Martin, was a passenger in an automobile owned and operated by the defendant, Erna Mieth. Both were, and still are, residents of Toronto, Canada. They were traveling on Route 60 in Chautauqua County when for reasons unexplained the vehicle left the public roadway, overturned and came to a halt on the front lawn of one William Penhollow. The plaintiff sustained serious injuries including multiple fractures of the cervical spine and was rushed from the scene to the Buffalo General Hospital.

Shortly thereafter, the plaintiff commenced this personal injury action in the Supreme Court, New York County. Jurisdiction over the defendant was duly obtained pursuant to the nonresident motorist statute (Vehicle and Traffic Law, Consol.Laws, c. 71, § 253). The defendant contending that there was no substantial nexus between the action and this State, moved for an order dismissing the complaint on the ground of Forum non conveniens. (CPLR 3211, subd. (a), par. 2.) In opposition to that motion plaintiff's counsel submitted an affidavit which asserted: that the accident occurred in New York and had been investigated by the New York State Police and that the plaintiff had been treated in a New York hospital and therefore, the police and hospital records were within the State and subject to subpoena by New York courts. Additionally, the affidavit asserted that the investigating officer and the treating physicians, as well as Mr. Penhollow, who was listed in the police report as a witness and characterized by the plaintiff as an 'important New York witness', would not be subject to subpoena in Canada.

Special Term relying on the factors enumerated in the affidavit of plaintiff's counsel, denied the motion to dismiss.

Subsequently, the defendant moved for a change of venue from New York County to Chautauqua County. Defendant's supporting affidavit argued that since the investigating officer, and the treating physicians and Mr. Penhollow lived in or near Chautauqua County the convenience of witnesses and the interests of justice would best be served by changing the place of trial to Chautauqua County.

In opposition to the change of venue motion plaintiff's counsel submitted an affidavit substantially contradicting the one which he had submitted in connection with the previous motion. To establish that venue was properly laid, plaintiff's counsel asserted, 'Nevertheless, the plaintiff will show that in fact, the necessity for these 'witnesses' to testify is completely illusory.' The affidavit went on to claim that Mr. Penhollow did not see the accident and that all Mr. Penhollow did was to call the State Police who arrived afterwards. 'Accordingly, except for the fortuitous circumstance that the defendant's automobile ended up on Mr. Penhollow's front lawn, there is nothing that Mr. Penhollow knows that can be material to the trial of this action.' The records and testimony of the State Police were also discounted by plaintiff's counsel in this affidavit as not probative of any material fact. 'All that Mr. Penhollow and Trooper Blumen can do is to confirm the fact that the defendant's motor vehicle ended up in Mr. Penhollow's front lawn which is not an issue.' The necessity of the testimony of the treating physicians was similarly deprecated in the affidavit. Since the plaintiff was subsequently hospitalized in Toronto and was presently under the care of Toronto physicians 'there is no need to require the testimony of any Buffalo physicians who treated her at the Buffalo General Hospital.'

Since no witnesses were necessary Special Term denied the venue motion.

The defendant appealed both the order denying the Forum non conveniens motion and the order denying the venue motion. A majority at the Appellate Division affirmed both orders upon a memorandum which concluded that Special Term had not abused its discretion in denying the relief requested. The dissenting Justices focusing on the plaintiff's conflicting affidavits noted that '(i)t would be hard to visualize a more unabashed instance of forum shopping.'

This appeal is before our court by leave of the Appellate Division on a certified question of law (CPLR 5713). We interpret the certified question as applying to the Appellate Division's affirmance of the denial of the Forum non conveniens motion. In so doing we consider the entire record which was before the Appellate Division, including the inconsistent and contradictory affidavits of plaintiff's counsel. Thus, the question raised is whether or not the motion to dismiss on the ground of Forum non conveniens should have been denied as a matter of law.

We believe that the certified question should be answered in the negative. Forum non conveniens is an equitable doctrine whereby a court in its discretion may decline to exercise jurisdiction over a transitory cause of action upon considerations of justice, fairness and convenience. (Silver v. Great Amer. Ins. Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398, 278 N.E.2d 619; Gulf Oil Corp. v. Gilbert, 330 U.S. 501, ...