Opinion
No. 53425/2013.
09-26-2016
Adelma Rae Olson ECKHART, Plaintiff, v. STARWOOD HOTELS & RESORTS WORLDWIDE, INC., et al., Defendants.
Judy L. Brown, Esq., Elmsford, for moving defendants. Jared C. Borriello, Esq., Diamond McCarthy LLP, New York, for plaintiff.
Judy L. Brown, Esq., Elmsford, for moving defendants.
Jared C. Borriello, Esq., Diamond McCarthy LLP, New York, for plaintiff.
TERRY JANE RUDERMAN, J.
The following papers were considered in connection with defendants' motion to renew a prior motion for summary judgment:
Papers Numbered
Notice of motion, Affirmation, Exs. A–C 1
Affirmation in response, Affidavit, Exs. A–J 2
Defendants previously moved for, inter alia, an order granting them summary judgment, which was denied with leave to renew on the ground that the defendants had failed to provide the Court with "working copies" of the moving papers. (Order, Ruderman, J,, June 6, 2016.) Defendants now move to renew, and the plaintiff opposes the motion.
"Defendants" herein refers to Starwood Hotels & Resorts Worldwide, Inc., Starwood Hotels & Resorts Worldwide Management Company, Sheraton Overseas Management Corporation (sometimes referred to as the "Starwood entities"). Defendant Nicolaus Malpensa Gestioni SRL, the hotel's owner, initially appeared in this action, but subsequently defaulted. (Order, Feb. 11, 2015, striking answer and setting inquest at the time of trial or conclusion of the action).
This action was commenced on March 13, 2013, seeking damages for the loss of plaintiff's property due to a theft from plaintiff's hotel room at the Sheraton Milan Malpensa Hotel ("Sheraton Milan") in Milan, Italy, on August 17, 2011. The complaint alleges that the defendants were negligent in failing to maintain their surveillance system, and in providing an improperly secured safe. Sheraton Overseas Management Corporation, a wholly owned subsidiary of Starwood Hotels & Resorts Worldwide, Inc., operated the hotel under a management agreement prior to the assignment of that agreement to a non-party Belgian corporation, Starwood E.A.M.E. License and Services Company, BVBA.
The underlying facts are largely undisputed. Plaintiff and her traveling companion, non-party Carlos Kenda, checked-in at the Sheraton Milan on August 17, 2011. They were provided with electronic key cards to Room 3170. Plaintiff left the room to make rental car arrangements. In her absence, the desk clerk who had checked them in arrived at the room and explained to Kenda that the keys previously given to them did not permit entry to the Executive Lounge. The clerk exchanged the original keys with new ones. (Notice of motion, Ex. K [Kenda's deposition], 20.) Plaintiff returned to the room, and placed her jewelry and other valuable property in the room safe, which was bolted to a shelf in the closet. (Notice of motion, Ex. J [Plaintiff's deposition], 33–34, 67–68, 107.) Then she and Kenda left to dine in the hotel restaurant. When they returned to the room, they discovered that the luggage had been stolen, and the entire safe had been removed.
The in-room safe had a notice affixed to it advising guests that the "hotel is not liable for any objects or valuables stored in this safe." (Notice of motion, Ex. M.).
The hotel manager advised plaintiff that the hotel's liability was limited under Italian law to 100 times the room rental rate. She was subsequently offered that amount (17, 589 Euros) as a settlement, which she declined. (Notice of motion, Ex. J, 130–150.) No suspect was ever identified, and no arrest was made.
Defendants argue that their liability is limited under either Italian (Civil Code 1783) or New York law (Gen. Business Law 200); that the in-room safe was adequate, as it was bolted to the shelf; and that there is no evidence that the surveillance system was not functioning—only that it did not record the incident. Defendants further maintain that there is no proof that the theft was perpetrated by an intruder, as opposed to a "fellow guest," and that they provided reasonable security measures at the hotel. Lastly, they seek dismissal on the ground of forum non conveniens.
The defendants make a passing reference to "subject matter jurisdiction," but in fact address only issues relating to forum non conveniens. (See, generally, Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478–479 [1984] ["Ordinarily, nonresidents are permitted to enter New York courts to litigate their disputes as a matter of comity. Obviously, however, our courts are not required to add to their financial and administrative burdens by entertaining litigation which does not have any connection with this State. The common-law doctrine of forum non conveniens, also articulated in CPLR 327, permits a court to stay or dismiss such actions where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere.] [citations omitted], cert. den., 469 U.S. 1108 [1985] ; Boyle v. Starwood Hotels & Resorts Worldwide, Inc., 110 AD3d 938 [2d Dept.2013] [dismissing, on grounds of forum non conveniens, action bought in Westchester County by foreign nationals for injuries sustained in hotel in United Arab Emirates owned by defendant, a Maryland corporation alleged to have its principal place of business in White Plains].)
Plaintiff does not dispute that Italian law applies, but contends that the defendants have failed to provide meaningful information regarding Italian law, and that under certain circumstances Italian law subjects the defendants to unlimited liability. Plaintiff asserts that there is overwhelming circumstantial evidence that the perpetrator was an employee of the hotel. They further argue that a forum non conveniens dismissal has been waived.
Analysis
Limitation of Liability—Application of Italian Law
While defendants cite the so-called New York "Innkeeper's Statute" (Gen. Bus. Law 200 ) they nevertheless request that the court apply Italian law. The defendants assert that under Italian Civil Code 1783, their liability is limited to 100 times the amount charged for the hotel room. The plaintiff agrees that Italian law applies, but argues that Italian Civil Code 1785 expands liability when the innkeeper is "responsible." Neither side, however, has submitted to the court the text of Italian Civil Code 1783 et seq., which is purported to be a series of related provisions defining the liability of innkeepers under Italian law, nor a certified translation of the text of that legislative scheme.
CPLR 4511 permits a court to take notice of foreign law. (Hamilton v. Miller, 23 NY3d 592 [2014] [ judicial notice extends to law, but not "facts"].) Judicial notice of laws of a foreign jurisdiction, however, may only be taken when the party requesting the notice provides "sufficient information to enable it to comply with the request." (CPLR 4511[b] ; see Minovici v. Belkin BV, 109 AD3d 520 [2d Dept.2013] [opposition papers provide the court with sufficient information to enable it to take judicial notice of foreign law at issue].) Pursuant to CPLR 4511(b) :
"Every court may take judicial notice without request of private acts and resolutions of the congress of the United States and of the legislature of the state; ordinances and regulations of officers, agencies or governmental subdivisions of the state or of the United States; and the laws of foreign countries or their political subdivisions. Judicial notice shall be taken of matters specified in this subdivision if a party requests it, furnishes the court sufficient information to enable it to comply with the request, and has given each adverse party notice of his intention to request it. Notice shall be given in the pleadings or prior to the presentation of any evidence at the trial, but a court may require or permit other notice." (Emphasis added)
The construction of foreign law is a legal question that may be summarily determined when sufficient information based on documentary and other evidence is presented. (Gusinsky v. Genger, 74 AD3d 539, 540 [1st Dept.2010] ). The motion court has broad discretion in considering the evidence presented, which may take a variety of forms. In this regard, CPLR 4511(d) provides:
"In considering whether a matter of law should be judicially noticed and in determining the matter of law to be judicially noticed, the court may consider any testimony, document, information or argument on the subject, whether offered by a party or discovered through its own research. Whether or not judicial notice is taken, a printed copy of a statute or other written law or a proclamation, edict, decree or ordinance by an executive contained in a book or publication, purporting to have been published by a government or commonly admitted as evidence of the existing law in the judicial tribunals of the jurisdiction where it is in force, is prima facie evidence of such law and the unwritten or common law of a jurisdiction may be proved by witnesses or printed reports of cases of the courts of the jurisdiction."
Copies of statutes are therefore prima facie evidence of the law when contained in publications generally admitted as evidence of the existing law of the jurisdiction where it is in force.
Expert affidavits interpreting the relevant legal provisions may also be considered in construing foreign law, if accompanied by sufficient documentary evidence. (Sea Trade Mar. Corp. v. Coutsodontis, 111 AD3d 483 [1st Dept.2013] [where motion court was presented with the affidavits of the experts on foreign law whose opinions differed, but was not given translated copies of the sections cited by both experts, court was not provided adequate information to determine as a matter of law that the document was a final judgment under Spanish law].)
Under the present circumstances, defendants have failed to provide the court with "sufficient information" to discern Italian law as it pertains to this case. Although the plaintiff has no burden on this motion for summary judgment where the defendants have not established a prima facie case, the comprehensive scheme which ostensibly exists under Italian law will be determinative of this action. It is not possible, however, absent competent proof of the foreign law, to determine whether the defendants are liable for the loss without any proof of fault or negligence, capped at 100 times the room rental rate, or whether exceptions exist.
Resolution of this dispute requires an examination of the text of the Italian laws supported by expert testimony. In order that these issues can be presented to the court well before the date of trial, the Court's disposition is without prejudice to a subsequent motion for summary judgment supported by appropriate proof sufficient for the court to take judicial notice of the Italian law, which shall include: (1) competent evidence of Italian Civil Code 1785 and all subsequent, related sections pertaining to innkeeper's liability; (2) certified translations into English; and (3) experts' affidavits supported by copies of relevant case authority, addressing any exceptions under Italian law which would expand an innkeeper's liability.
Summary Judgment as to Liability
Defendants additionally seek summary judgment on the ground that they provided adequate security at the hotel, took reasonable security measures, and had no notice of similar occurrences. However, no determination as to liability can be made in the absence of proper proof of the applicable Italian law as to the relevant legal standard to establish liability, and the circumstances, i.e, whether negligence needs to be established to recover damages up to the "cap" amount, and whether negligence or fault by defendants may or may not permit recovery in excess of the "cap" on liability.
In the Brown Affirmation in support of the motion (Notice of motion, Affirmation in support, p. 4), it is alleged that defendant Sheraton Overseas Management Corporation assigned the operating agreement of the hotel to a non-party Belgian corporation. The assignment itself (Affirmation in opposition, Ex. C) is dated June 22, 2015, effective as of April 1, 2008, and thus was executed long after the theft on August 17, 2011. Defendants have not argued for summary judgment in their favor on this basis, and in any event, issues of fact exist as to the efficacy of the assignment long after the events herein.
Dismissal based on Forum Non Conveniens
Dismissal of an action for forum non conveniens may be precluded by laches and inexcusable delay. In Kefalas v. Kontogiannis (44 AD3d 624 [2d Dept.2007] ), the doctrine of laches barred defendants' claim that the trial court was an improper forum for plaintiff's breach of contract action where defendants had participated in the action for more than two years through lengthy discovery and the filing of a note of issue. (See also, Corines v.. Dobson, 135 A.D.2d 390 [1st Dept.1987] [defendant driver was not entitled to forum non conveniens dismissal of an action brought by several passengers injured in an accident on a Caribbean island; defendant did not move for dismissal for almost eighteen months after discovery began, pretrial activities had taken place, and the note of issue and certificate of readiness had been filed without objection]; Todtman, Young, Tunick, Nachamie, Hendler, Spizz & Drogin, P.C. v. Richardson, 231 A.D.2d 1 [1st Dept.1997] [court denied a client's motion to dismiss his former attorneys' action to recover fees on the ground that New Jersey provided a more convenient forum, where two years had passed since commencement of the action and after the client had signed an agreement to arbitrate in New York].)
Here, extensive discovery was completed, and a note of issue was filed on September 4, 2015. The action has been pending since March 3, 2013. No motion was made to dismiss on the basis of forum non conveniens until December 2, 2015, long after a note of issue had been filed. Under these circumstances, as plaintiff contends, dismissal on this ground is barred by laches.Based upon the foregoing, it is hereby,
This was the date of service of the prior motion for the same relief as is sought herein.
ORDERED that renewal is granted, and on renewal, the motion is denied to the extent it seeks dismissal based on the ground of forum non conveniens, and is otherwise denied with leave to renew upon proper papers as set forth herein; and it is further
ORDERED that all parties appear in the Settlement Conference Part on Tuesday, November 15, 2016 at 9:15 a.m., in room 1600 of the Westchester County Courthouse located at 111 Dr. Martin Luther King, Jr., Boulevard, White Plains, New York, 10601.
This constitutes the Decision and Order of the Court.