Opinion
Index No. 151073/2019
03-23-2020
MARCEL KAGNOVSKAYA, Plaintiff v. ISLAND AUTO GROUP, INC. D/B/A SUBARU and MATTHEW SPANO Defendants.
NYSCEF DOC. NO. 20 Present:
DECISION AND ORDER
Motion Sequence Nos.: 001 Recitation as required by CPLR 2219(a) of the papers considered in the review of Motion Sequence Number 001
| Numbered | |
|---|---|
| Notice of Motion by Defendant Island Auto Group (001), | 1 |
| Affirmation Opposition by Plaintiff, | 2 |
| Reply Affirmation by Defendant Island Auto Group | 3 |
Defendant's Motion
Defendant ISLAND AUTO GROUP, INC. D/B/A SUBARU ("Island Auto") moves by notice of motion (Seq. No. 001) for an order dismissing the Plaintiff's case pursuant to CPLR §327 on the ground the that Richmond County presents as an inconvenient, or otherwise improper, forum. In the alternative, Defendant argues that if the case remains in New York, that this Court should apply New Jersey law to the proceedings. Plaintiff, MARCEL KAGNOVSKAYA, has filed written opposition to the motion arguing that there are sufficient contacts with New York such that the case is properly venued in Richmond County. Plaintiff further argues that New York law should apply to the proceeding. Defendant MATTHEW SPANO takes no position on the current application.
The present action arises out of a motor vehicle accident which occurred on May 8, 2018. It is undisputed that the accident occurred on the off-ramp of the George Washington Bridge, in Bergen County New Jersey. The Plaintiff is a resident of New Jersey. Defendant Island Auto is a New York corporation located in and operating out of Richmond County. Defendant Spano is a resident of Richmond County. At the time of the accident Defendant Spano was driving a motor vehicle that he rented from Defendant Island Auto. While neither party has provided a complete copy of the rental agreement to this Court, its face page indicates that it was signed in New York and applies New York Law.
For example, the contract refers to NY General Business Law section 396-z(5)(c).
Applicable Law
The proponent of a motion to dismiss on the ground of forum non conveniens bears the "heavy burden" of demonstrating that the relevant private or public interest factors militate against accepting the litigation. See Swaney v. Academy Bus Tours of N.Y. Inc., 158 A.D.3d 437 (1st Dept. 2018). Relevant factors to be considered by the Court in determining whether or not to maintain jurisdiction include; the potential hardship to the defendant, the availability of an alternate forum, the residence of the parties, and the location where the cause of action arose. No one factor is dispositive in the calculus. See Islamic Republic of Iran v. Pahlavi , 62 N.Y.2d 474 (1984). "Unless the balance of these factors is strongly in favor of the moving defendant, the plaintiff's choice of forum should rarely be disturbed." Thor Gallery at S. DeKalb , LLC v. Reliance Mediaworks (USA) Inc., 131 A.D.3d 431 (1st Dept. 2015).
Decision
(a) Inconvenient Forum
Here, defendant Island Auto has failed to meet the heavy burden of showing that the present case should be dismissed on inconvenient forum grounds. See Koutras v. Lacorazza , 669 N.Y.S.2d 898 (2d Dept. 1998). While the accident occurred in New Jersey, and the Plaintiff was medically treated there, the Plaintiff chose New York as his forum, as was his jurisdictional prerogative. Moreover, the both Defendants reside in New York, and the relevant rental contract was signed in New York, applying New York law. Notably, the relative proximity of New York and New Jersey, and the frequency of travel between the two states have been found as factors militating against a change in venue. See Anastasio v. Port Auth. Of N.Y. & N.J., 170 A.D.3d 589 (1st Dept. 2019); see also Hall v. Camacho , 158 A.D.3d 422 (1st Dept. 2018).
In regard to witnesses, while Defendant correctly states that New York's subpoena power is limited in New Jersey, it will be the burden of the Plaintiff to produce his physicians in furtherance of his case. Other than the Plaintiff's physicians, no other out of state witnesses have been identified. Finally, while Defendant Island Auto argues that New Jersey presents as an available forum for the Plaintiff, they simultaneously argue that the case against them would be dismissed in that jurisdiction, as New Jersey does not have a "permissive use" statute. Accordingly, to follow Island Auto's logic, New Jersey arguably does not present as a viable forum to proceed against the moving Defendant. See Johnson v. Vernon , 2016 NYLJ LEXIS 3743 (Sup. Ct. N.Y. Cty. 2016). For these reasons, the aspect of Defendant's motion to dismiss the Plaintiff's case on inconvenient forum grounds is hereby denied. See Waterways , Ltd. v. Barclays Bank PLC , 174 A.D.2d 324 (1st Dept. 1991).
(b) Choice of Law
Defendant Island Auto further argues, in the alternative, that if the case remains in Richmond County that this Court is obligated to apply New Jersey law. This argument is unpersuasive. Historically, a Court was bound to apply the "law of the place where the tort occurred." However, this rigid analysis has been replaced by a more flexible "interest analysis" under which the "law of the jurisdiction having the greatest interest in resolving the particular issue" is given controlling effect. See Shaw v. Carolina Coach , 82 A.D.3d 98 (2d Dept. 2011); see also Neumeier v. Kuehner , 31 N.Y.2d 121 (1972). The overarching inquiry is "which of the two competing jurisdictions has the greater interest in having its law applied in the litigation." See Padula v. Lilarn Properties Corp., 84 N.Y.2d 519 (1994).
Defendant sets forth a number of the many differences in the motor vehicle tort laws of New York and New Jersey. However, Plaintiff correctly argues that the majority of these differences are "loss allocating rules" rather than rules that regulate primary conduct (standards of care, or rules of the road). See Cooney v. Osgood Mach., Inc., 81 N.Y.2d 66 (1993). Generally, laws that limit liability after a tort occurs, or govern vicarious liability, are considered loss allocated rules which are subject to the "interest analysis" indicated above. See King v. Car Rentals , Inc., 29 A.D.3d 205 (2d Dept. 2006). Under this interest analysis, it is well settled that the New York "vicarious liability through permissive use" law codified in section 388 of the Vehicle and Traffic Law is of significant importance to the state to ensure that an injured party is afforded a financially responsible insured party against whom he can recover. See Farber v. Smolack , 20 N.Y.2d 198 (1967); see also Budget Rent-A-Car Sys., Inc. v. Chappell , 407 F.3d 166 (3d Cir 2005); Johnson v. Hertz Corp., 315 F. Supp. 302 (S.D.N.Y. 1970).
When it enacted Section 388 of the Vehicle and Traffic Law, "the Legislature intended to enlarge the vehicle owner's vicarious liability and not to draw a line at the border." Sentry Ins. Co. v. Amsel , 36 N.Y.2d 291 (1975). Accordingly, in this case, the law of the place of the tort should yield to New York law, as New York has the greatest interest in resolving the issue of vicarious liability. See Shaw v. Carolina Coach , Supra.; see also Hood v. Avis Rent A Car Sys., Inc., 69 A.D.3d 797 (2d Dept. 2010). The same theory applies to differences in how comparative liability is apportioned between jointly negligent drivers in New York versus New Jersey.
For the reasons set forth above, Defendant Island Auto's motion to dismiss the present case for it to be re-filed in New Jersey is hereby denied in its entirety. The Court has not discussed the potential applicability of the "Graves Amendment" (49 USC §30106[a][2]) as referred to in the Defendant's moving papers, as that issue was not properly raised before this Court. Nothing in this Decision precludes the Defendant from making an additional motion based upon the Graves Amendment, if supportable by law.
This constitutes the Decision and Order of the Court on all issues raised in relation to motion sequence number 001.
Dated: March 23, 2020
/s/_________
Hon. Catherine M. DiDomenico
Acting Justice Supreme Court