Michels v. McCrory Corp.

• Citation: 44 Misc.2d 212,253 N.Y.S.2d 485
• Parties: Stanley E. MICHELS, as Guardian ad Litem of Walter A. Chepetsky, Jr., an infant over the age of 14 years, Plaintiff, v. McCRORY CORPORATION and H. L. Green Co., Inc., Defendants.
• Decision Date: 09 October 1964
• Court: United States State Supreme Court (New York)

Page 485

253 N.Y.S.2d 485

44 Misc.2d 212

Stanley E. MICHELS, as Guardian ad Litem of Walter A.

Chepetsky, Jr., an infant over the age of 14

years, Plaintiff, v. McCRORY CORPORATION and H. L. Green Co., Inc., Defendants.

Supreme Court, Special Term, New York County, Part I.

Oct. 9, 1964.

Zelenko & Elkind, New York City, for plaintiff.

Perrell, Nielsen & Stephens, New York City, for defendant McCrory Corp.

SAMUEL J. SILVERMAN, Justice.

Defendant McCrory Corporation moves for an order pursuant to CPLR Rule 3211(a) declining jurisdiction upon the ground that the parties are nonresidents and that the accident occurred outside the State of New York.

The complaint alleges that the infant sustained personal injuries on April 13, 1960 when a shirt which he was wearing ignited. The shirt had been purchased in a retail store of defendant H. L. Green Co., Inc. in Quincy, Mass.

At all times the infant plaintiff has been and is a resident of Massachusetts. At the time of the accident defendant H. L. Green Co., Inc. was a New York corporation doing business in Massachusetts.

On June 21, 1961 defendant H. L. Green Co., Inc. was consolidated into McCrory Corporation, a Delaware corporation, doing business both in New York and Massachusetts. By the consolidation the surviving corporation was McCrory Corporation, the Delaware corporation.

In 1962 the plaintiff infant commenced an action in the Massachusetts State Superior Court against defendant H. L. Green Co., Inc., to recover damages for the injuries sustained. Discovery procedure was instituted. Thereafter, plaintiff voluntarily discontinued the Massachusetts action without prejudice. The date of this discontinuance does not appear but defendant states it was 'almost on the eve of trial'.

On June 23, 1964 an action was instituted in this court by the infant by a guardian ad litem who had been appointed by this Court. In the caption the plaintiff is described as 'STANLEY E. MICHELS, as Guardian ad Litem of WALTER A. CHEPETSKY, JR., an infant over the age of 14 years.'

The court cannot take seriously plaintiff's contention that the reason for discontinuing the action in Massachusetts and bringing it in New York is the difficulty of obtaining information from defendant, in that defendant's records, etc. are in New York, when the plaintiff infant is a resident of Massachusetts and presumably the witnesses to most of the events and the injuries and the medical evidence will all have to come from Massachusetts. There is nothing to indicate that the Massachusetts discovery and disclosure procedures are not quite adequate to meet the problem and protect the interests of all parties.

This is plainly a Massachusetts accident which can and should more conveniently be tried in Massachusetts. It is a case in which plaintiff is engaged in forum shopping, having tried one forum and then changed his mind about it. A litigant 'is open to the charge of forum shopping whenever he chooses a forum with slight connection to the factual circumstances surrounding his suit'. (Rayco Manufacturing Co. v. Chicopee Manufacturing Co., 148 F.Supp. 588, 593 [S.D.N.Y., 1957]).

The administration of justice will clearly be better served by not burdening this court with this Massachusetts case. If this court has discretion, it should exercise it to decline jurisdiction.

Plaintiff says that this court does not have discretion because (a) the guardian ad litem is a resident here, and (b) H. L. Green Co., Inc., is or was a New York Corporation.

It is well established that if either plaintiff or defendant is a New York resident or corporation, this court cannot decline jurisdiction, and if one of two defendants is a New York corporation the court cannot decline jurisdiction as to that defendant, and in that event in the ordinary case it might as well keep the whole case. (White v. Boston and Maine Railroad, 283 App.Div. 482, 129 N.Y.S.2d 15 [Third Dept., 1954]).

(a) As to the guardian ad litem, the fact that he is a resident is irrelevant. Under New York law it was the rule and, I believe, still is the rule under the CPLR that in an action brought by an infant the infant and not the guardian ad litem is the real plaintiff and the real party in interest. (Arnold v. Williams, 17 Misc.2d 953, 954, 187 N.Y.S.2d 691, 692 [Supreme Court, New York County, 1959]). Indeed, under the CPLR if an infant has a parent or a guardian of his property there normally is no guardian ad litem. (CPLR § 1201.) If this infant had appeared by his parent, the parent, of course, is a Massachusetts resident. The guardian ad litem is simply a person appointed by the court to represent and protect the interests of the infant; his position is analogous to that of the attorney in the action. (Indeed, this guardian ad litem is an attorney.) He is appointed by '[t]he court in which an action is triable'. (CPLR § 1202). As a practical matter unless a relative or guardian is appointed, the court will appoint a resident of the court's state as guardian. Thus, rather than the residence of the guardian ad litem determining the court in which the action shall be brought, it would be more true to say that the court in which the action is brought determines the residence of the guardian ad litem.

(b) As to the defendants' residence (or, rather, state of incorporation) the problem is somewhat more complicated. It is residence at the time of the commencement of the suit not at the time of the...