Opinion
526135
11-01-2018
Jacinthe CLAUDE et al., Appellants, v. AUTOBUS FLEUR DE LYS, INC., et al., Respondents, et al., Defendants.
Weller, Green, Toups & Terrell, LLP, Beaumont, Texas (Mitchell A. Toups of counsel) and Whatley Kallas, New York City (Joe R. Whatley Jr. of counsel) and Paul Webb, PC, Wharton, Texas (Vincent Lee Marable III admitted pro hac vice), for appellants. Wilson Elser Moskowitz Edelman & Dicker LLP, New York City (Patrick L. Lawless of counsel), for respondents.
Weller, Green, Toups & Terrell, LLP, Beaumont, Texas (Mitchell A. Toups of counsel) and Whatley Kallas, New York City (Joe R. Whatley Jr. of counsel) and Paul Webb, PC, Wharton, Texas (Vincent Lee Marable III admitted pro hac vice), for appellants.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York City (Patrick L. Lawless of counsel), for respondents.
Before: Egan Jr., J.P., Clark, Mulvey, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
Pritzker, J.
Appeal from an order of the Supreme Court (Auffredou, J.), entered June 5, 2017 in Essex County, which granted certain defendants' motion to dismiss the complaint against them.
In July 2014, a motor coach bus carrying 56 individuals was traveling southbound on Interstate 87 in the Town of North Hudson, Essex County – heading from Quebec, Canada to New York City on a sightseeing expedition – when it struck a guardrail, careened down an embankment and rolled over, ultimately landing on its side. Numerous passengers were injured, and one teenager, Chelssy Mercier, died at the scene. In July 2016, Mercier's estate, as well as her family members, all of whom are Canadian residents, commenced this action against defendants, all Canadian residents or Canadian corporations, alleging negligence and negligent hiring and supervision. Plaintiffs alleged that the accident occurred because defendant Rejean Perron, the operator of the bus, fell asleep. Perron was an employee of defendant Autobus Fleur de Lys, Inc., which leased the bus from defendant 9282–9621 Quebec, Inc. Defendant George Morissette was the owner and president of Autobus Fleur and 9282–9621 Quebec. In December 2015, following joinder of issue, Autobus Fleur, 9282–9621 Quebec, Morissette and Perron (hereinafter collectively referred to as defendants) moved for, among other things, dismissal of the complaint pursuant to CPLR 327 on the ground of forum non conveniens. Supreme Court granted their motion, and plaintiffs appeal.
A court may stay or dismiss an action where it finds, in the "interest of substantial justice," that the action "should be heard in another forum" ( CPLR 327[a] ; see Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478–479, 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] ; Gozzo v. First Am. Tit. Ins. Co., 75 A.D.3d 953, 954, 905 N.Y.S.2d 702 [2010] ). The application of this doctrine is discretionary and requires the balancing of several factors to ensure that a plaintiff's claims have "a substantial nexus with New York" ( Martin v. Mieth, 35 N.Y.2d 414, 418, 362 N.Y.S.2d 853, 321 N.E.2d 777 [1974] ; see Wild v. University of Pa., 115 A.D.3d 944, 945–946, 983 N.Y.S.2d 58 [2014] ; Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d at 478–479, 478 N.Y.S.2d 597, 467 N.E.2d 245 ). "No one factor is controlling" ( Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d at 479, 478 N.Y.S.2d 597, 467 N.E.2d 245 [citations omitted]; see Gozzo v. First Am. Tit. Ins. Co., 75 A.D.3d at 954, 905 N.Y.S.2d 702 ).
Within this broad context, we begin our analysis with the concept that "[t]he applicability of foreign law is an important consideration in determining a forum non conveniens motion" ( Shin–Etsu Chem. Co., Ltd. v. ICICI Bank Ltd., 9 A.D.3d 171, 178, 777 N.Y.S.2d 69 [2004] ; see Mensah v. Moxley, 235 A.D.2d 910, 911–912, 653 N.Y.S.2d 166 [1997] ; IFS Intl. v. SLM Software, 224 A.D.2d 810, 810, 638 N.Y.S.2d 186 [1996] ). In this regard, all of the parties are domiciles of Quebec and, under the first rule enunciated in Neumeier v. Kuehner, 31 N.Y.2d 121, 128, 335 N.Y.S.2d 64, 286 N.E.2d 454 [1972], although the accident occurred in New York, the law of Canada must be applied, in particular to loss allocation (see Edwards v. Erie Coach Lines Co., 17 N.Y.3d 306, 321, 329, 929 N.Y.S.2d 41, 952 N.E.2d 1033 [2011] ; Mensah v. Moxley, 235 A.D.2d at 911–12, 653 N.Y.S.2d 166 ; see also Jean v. Francois, 168 Misc.2d 48, 51, 642 N.Y.S.2d 780 [Sup. Ct., Rockland County 1996] ; Myers v. Langlois, 168 Vt. 432, 437–438, 721 A.2d 129 [1998] ). This conclusion is significant because Quebec's loss allocation rules relating to automobile accidents as defined in the Quebec Automobile Insurance Act (hereinafter AIA) deeply conflict with New York law. In particular, AIA institutes a comprehensive no-fault compensation regime that provides compensation and expressly prohibits actions in a "court of justice" (Automobile Insurance Act, RSQ, ch A–25, § 83.57 [1997] [Can] ). Instead, compensation is determined and furnished through a nationalized governmental entity (see Automobile Insurance Act, RSQ, ch A–25, § 5 [1997] [Can] ). Therefore, because Quebec law applies here, not only are plaintiffs prohibited from bringing an action for noneconomic loss, but Supreme Court would be required to interpret and apply the concepts that govern no-fault compensation under the AIA (see Automobile Insurance Act, RSQ, ch A–25, § 83.57 [1997] [Can]; Edwards v. Erie Coach Lines Co., 17 N.Y.3d at 329–330, 929 N.Y.S.2d 41, 952 N.E.2d 1033 ; Mensah v. Moxley, 235 A.D.2d at 911–912, 653 N.Y.S.2d 166 ). There is no doubt this would unduly burden the New York court (see Gozzo v. First American Tit. Ins. Co., 75 A.D.3d at 954, 905 N.Y.S.2d 702 ), with no attendant benefit to the Canadian plaintiffs, and, when considered with the remaining factors as examined by Supreme Court, we cannot say that the court abused its discretion in dismissing plaintiffs' action on forum non conveniens grounds (see id. ; Harp v. Malyn, 166 A.D.2d 848, 850, 563 N.Y.S.2d 181 [1990] ). Finally, to the extent that the Canadian statute of limitations or jurisdiction is at issue, Supreme Court expressly and properly conditioned its dismissal upon defendants' waiver of such defenses (see Boyle v. Starwood Hotels & Resorts Worldwide, Inc., 110 A.D.3d 938, 940, 973 N.Y.S.2d 728 [2013], affd 23 N.Y.3d 1012, 992 N.Y.S.2d 773, 16 N.E.3d 1252 [2014] ).
ORDERED that the order is affirmed, with costs.
Egan Jr., J.P., Clark, Mulvey and Aarons, JJ., concur.