Opinion
February 23, 1971
Order, Supreme Court, New York County, entered November 18, 1970, denying defendant's motion to dismiss the complaint upon the ground of forum non conveniens and granting the cross motion to amend the caption of the action, is unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs and without disbursements, and the motion to dismiss the complaint is granted on condition that within 10 days after service of a copy of the order to be entered hereon, defendant stipulates, as offered by it, to accept service of process nunc pro tunc as of the date the action herein was commenced and to appear in any action brought against it in the appropriate courts of either Florida or Georgia (as determined by plaintiff) for the same relief as demanded in the complaint herein, and that it will not plead the Statute of Limitations as a defense in any such action brought in either Georgia or Florida, but will waive it, such waiver not being applicable to any defense of laches that may exist. In the event of defendant's failure to comply with the foregoing conditions, the order is affirmed, without costs and without disbursements, with leave to defendant to serve its answer within 30 days from the entry of the order hereon. The action in either Georgia or Florida is to be instituted within three months after the entry of the order hereon and compliance by the defendant with the conditions imposed. The action herein is between nonresidents and based upon a tort which occurred in Georgia. The plaintiff was hospitalized in Georgia and then in Florida where he now resides. Both the defendant and the plaintiff's employer are subject to the jurisdiction of the Georgia or Florida courts and it appears that various necessary witnesses are located either in Georgia or Florida. There is no showing that witnesses are available in New York. As stated in Aetna Ins. Co. v. Creole Petroleum Corp. ( 27 A.D.2d 518, affd. 23 N.Y.2d 717) "It is the general policy of the courts of this State, in the absence of special circumstances, to reject actions between nonresidents founded on tort, where the cause of action arises outside the State". (See, also, Gilchrist v. Trans-Canada Air Lines, 27 A.D.2d 524; Williams v. Seaboard Air Line R.R. Co., 9 A.D.2d 268, 270; Ginsburg v. Hearst Pub. Co., 5 A.D.2d 200, affd. 5 N.Y.2d 894.) We find a complete absence of any showing of special circumstances impelling the retention of jurisdiction. In the circumstance herein, to try the action in New York would result in a hardship to the defendant and a burden on the New York courts, while there is no apparent reason why the plaintiff cannot maintain the action in the more appropriate jurisdiction of Georgia or Florida. Settle order on notice.
Concur — Stevens, P.J., Capozzoli, Nunez, McNally and Tilzer, JJ.