Opinion
No. 15–346.
12-04-2015
Samuel PARKER, Plaintiff–Appellant, v. 30 WALL STREET APARTMENT CORPORATION, Defendant–Respondent.
Order (Debra Rose Samuels, J.) dated June 9, 2015, insofar as appealed from, modified to the extent of conditioning the order of dismissal upon defendant's acceptance of service of process in Suffolk County, and waiver of any jurisdictional and statute of limitations defenses in Suffolk County; as modified, order affirmed, without costs.
We agree with the motion court that the action should be dismissed, albeit on grounds different from those stated. The court should not have, sua sponte, dismissed the action for lack of personal long-arm jurisdiction, since defendant waived any jurisdictional defense by failing to raise it in its answer or by way of preanswer motion to dismiss (see CPLR 3211[e] ; Buckeye Retirement Co., L.L.C., Ltd. v. Lee, 41 AD3d 183, 184 [2007] ).
However, even if jurisdictionally sound, this action would be more appropriately adjudicated in Suffolk County, and defendant's motion to dismiss on the ground of forum non conveniens should have been granted (see CPLR 327 ; Siegel, Practice Commentaries, McKinney's Cons.Laws of NY, Book 29A–Judiciary Part 3, Judiciary Court Acts, CCA 301, at 100–101 ; see also Medicorp v. Avis Corp., 122 Misc.2d 813 [1984] ). The record establishes that plaintiff's claim arises from his sale of a cooperative apartment in Southampton, New York, in Suffolk County; the documentary evidence and witnesses are primarily located in Suffolk County; and that the claims lack a substantial nexus to New York City. Plaintiff's residence in New York County is outweighed by the remaining relevant factors (see Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478–479 [1984], cert. denied 469 U.S. 1108 [1985] ), including the burden on Civil Court's congested calendars of retaining a case to which it does not have a substantial nexus (see Wild v. University of Pa., 115 AD3d 944, 946 [2014] ). However, in order to assure the availability of a forum for this action, we have conditioned the dismissal as indicated (see CPLR 327[a] ; Wild v. University of Pa., 115 AD3d at 946 ).
We have considered plaintiff's arguments and find them unavailing.
I concur