Patriot Exploration, LLC v. Thompson & Knight LLP

• Decision Date: 27 July 2010
• Citation: 75 A.D.3d 482,905 N.Y.S.2d 592
• Parties: PATRIOT EXPLORATION, LLC, et al., Plaintiffs-Respondents, v. THOMPSON & KNIGHT LLP, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

905 N.Y.S.2d 592
75 A.D.3d 482

PATRIOT EXPLORATION, LLC, et al., Plaintiffs-Respondents,
v.
THOMPSON & KNIGHT LLP, Defendant-Appellant.

Supreme Court, Appellate Division, First Department, New York.

July 27, 2010.

905 N.Y.S.2d 592

Thompson & Knight LLP, New York (Brian C. Dunning of counsel), for appellant.

Bernkopf Goodman LLP, Boston, MA (Peter B. McGlynn, of the Massachusetts Bar, admitted pro hac vice, of counsel), for respondents.

ANDRIAS, J.P., McGUIRE, MOSKOWITZ, ACOSTA, DeGRASSE, JJ.

75 A.D.3d 482

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered June 4, 2009, which denied defendant's motion for dismissal of the action on the ground that New York is an inconvenient forum, affirmed, without costs.

In this legal malpractice action, the motion court did not abuse its discretion in declining to dismiss this action on forum non conveniens grounds ( see Shin-Etsu Chem. Co., Ltd. v. ICICI Bank Ltd., 9 A.D.3d 171, 175-77, 777 N.Y.S.2d 69 [2004] ). Since the court may grant a forum non conveniens motion "on any conditions that may be just" (CPLR 327[a] ), which includes the power to impose "reasonable conditions designed to protect plaintiffs' interests" ( Chawafaty v. Chase Manhattan Bank, 288 A.D.2d 58, 58, 733 N.Y.S.2d 12 [2001], lv. denied 98 N.Y.2d 607, 746 N.Y.S.2d 691, 774 N.E.2d 756 [2002] ), the court could properly condition an inconvenient-forum dismissal on a waiver of the foreign forum's two-year statute of limitation ( see e.g. Healy v. Renaissance Hotel Operating Co., 282 A.D.2d 363, 364, 724 N.Y.S.2d 719 [2001]; Seung-Min Oh v. Gelco Corp., 257 A.D.2d 385, 387, 683 N.Y.S.2d 95 [1999]; Highgate Pictures v. De Paul, 153 A.D.2d 126, 129, 549 N.Y.S.2d 386 [1990] ).

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Nor can defendant prevail on its belated offer, made in its motion for reargument, to waive its potential statute of limitations defense, since the court had also properly found that defendant had not met its burden of establishing that New York was an

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inconvenient forum and that the matter should be tried in Texas based upon a consideration of factors including potential hardship to proposed witnesses, the location of records and files, the residency of the parties, and the burden imposed upon the New York courts ( see Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 [1947]; Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 479, 478 N.Y.S.2d 597, 467 N.E.2d 245 [1984], cert. denied, 469 U.S. 1108, 105 S.Ct. 783, 83 L.Ed.2d 778[1985] ).

We have considered defendant's remaining arguments and find them unavailing.

All concur except McGUIRE and MOSKOWITZ, JJ. who dissent in a memorandum by MOSKOWITZ, J. as follows:

MOSKOWITZ, J. (dissenting).

I dissent and would reverse. This is a legal malpractice action. Plaintiffs and defendant had an ongoing attorney-client relationship commencing in 2004. Plaintiffs moved their offices from New York City to Greenwich, Connecticut in July 2006. According to the complaint, in September 2006, plaintiffs engaged attorneys from defendant's Texas office to represent plaintiffs in connection with certain oil and gas related transactions involving, inter alia, non-party Apollo Resources International, Inc. Plaintiffs claim that defendant committed malpractice when it incorrectly identified Apollo Resources, instead of Apollo Natural Gas Company, LLC, as the record title owner of certain properties thereby causing plaintiffs to pay the wrong entity. On March 21, 2008, plaintiffs commenced an action in a Texas state court to clear title. On May 8, 2008, plaintiffs obtained a default judgment against the Apollo entities and others in the Texas action and cleared its title.

On October 27, 2008, plaintiffs commenced this action for legal malpractice in New York County. On January 20, 2009, defendant moved to dismiss on the grounds of forum non conveniens pursuant to CPLR 327. Defendant did not move to dismiss on statute of limitations grounds pursuant to CPLR 3211(a)(5).

The motion court denied defendant's motion on June 1, 2009, apparently because defendant had refused to agree to the application of New York's borrowing statute (CPLR 202) ¹ in the alternative forum in Texas. Defendant seems to have misunderstood and thought that the motion court was asking it to waive

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its statute of limitations defense altogether, and that it was reluctant to do because it believed at the time that the action was likely time-barred under Texas law. On the initial motion, defendant did...