Seung-Min Oh v. Gelco Corp., SEUNG-MIN

• Decision Date: 07 January 1999
• Docket Number: SEUNG-MIN
• Citation: 257 A.D.2d 385,683 N.Y.S.2d 95
• Parties: 1999 N.Y. Slip Op. 5 OH, etc., et al., Plaintiffs-Respondents, v. GELCO CORPORATION, et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 95

683 N.Y.S.2d 95

1999 N.Y. Slip Op. 5

SEUNG-MIN OH, etc., et al., Plaintiffs-Respondents, v. GELCO CORPORATION, et al., Defendants-Appellants.

Supreme Court, Appellate Division,

First Department.

Jan. 7, 1999.

Peter Jakab, for plaintiffs-respondents.

Denise A. Rubin, for defendants-appellants.

SULLIVAN, J.P., ROSENBERGER, WALLACH and TOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Barbara Kapnick, J.), entered November 12, 1997, which, upon granting plaintiff's motion to renew a prior order of the same court and Justice, entered on or about April 4, 1997, dismissed the action on the ground of forum non conveniens, vacated the April 4, 1997 order and reinstated the complaint, unanimously reversed, on the law, without costs, and the complaint dismissed on condition that defendants waive any Statute of Limitations, personal jurisdictions and "entire controversy" defenses under New Jersey law. The Clerk is directed to enter judgment accordingly.

On July 21, 1994, at about 2:41 A.M., plaintiff and his wife were injured in a multi-vehicle accident on the New Jersey Turnpike with a car driven by defendant Mullholland, a Richmond County resident, which he had leased from defendant Gelco, a Minnesota corporation, which had designated a New York County agent for service of process. Plaintiff and his wife, who died during pendency of this action, were New Jersey residents at the time of the accident, although plaintiff subsequently changed his residence to Queens County. Most relevant nonparty witnesses, including police officers, eyewitnesses, and medical personnel, as well as medical institutions involved, are located in New Jersey, although some eyewitnesses were from Brooklyn and plaintiff claims to have received some medical treatment in New York County.

Plaintiff also was involved in two accidents immediately preceding the Mullholland accident. This fact is presently relevant insofar as New Jersey's "entire controversy doctrine" requires that related cases be consolidated for litigation. Plaintiff was issued summonses at the scene for driving while intoxicated, and pleaded guilty in New Jersey to charges arising from a death and injuries resulting from those accidents.

Plaintiff, opposing dismissal on the basis of forum non conveniens, notes that: Gelco's parent company, defendant General Electric, is a New York Corporation; plaintiff worked in New York, commuting daily from New Jersey; and that no other action had been pending in New Jersey when the New York County action was filed. Two other actions arising from the two other accidents subsequently were commenced, and then consolidated, in New Jersey. Plaintiff, of Korean extraction, also argues that he likely would receive a fairer trial in New York insofar as New York City's Asian population is larger than New Jersey's, a contention that we reject.

The present action was commenced by plaintiff in New York County on November 21, 1994. Defendants sought dismissal by notice of motion dated January 18, 1995, which plaintiff opposed by...