Opinion
693 CA 19-01036
10-09-2020
Dalaine M. PIESKER and Thomas R. Piesker, Plaintiffs-Appellants, v. PRICE LEASING CORPORATION, Defendant-Respondent.
ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (ANDREW J. CONNELLY OF COUNSEL), FOR PLAINTIFFS-APPELLANTS. TRAUB LIEBERMAN STRAUS & SHREWSBERRY LLP, HAWTHORNE (STEPHEN D. STRAUS OF COUNSEL), FOR DEFENDANT-RESPONDENT.
ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC, BUFFALO (ANDREW J. CONNELLY OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
TRAUB LIEBERMAN STRAUS & SHREWSBERRY LLP, HAWTHORNE (STEPHEN D. STRAUS OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.
Memorandum: Dalaine M. Piesker (plaintiff) was injured in a motor vehicle accident while driving a truck owned by defendant. Plaintiffs are residents of New York, and defendant has an office and transacts business in New York, but the accident occurred in Virginia. Plaintiffs thereafter commenced this negligence action in New York. Supreme Court subsequently granted defendant's motion to dismiss the complaint on forum non conveniens grounds, reasoning that defendant would be prejudiced by litigating this action in New York because it would be unable to subpoena either the Virginia State Police officers who investigated the accident or the medical providers who treated plaintiff in Virginia immediately following the accident. We reverse.
"[W]here a plaintiff is a New York resident, a defendant bears the heavy burden of establishing that New York is an inappropriate forum before plaintiff's choice of forum will be disturbed" ( Homola v. Longshore Transp. Sys. , 204 A.D.2d 1052, 1052, 613 N.Y.S.2d 310 [4th Dept. 1994] ; see Cellino & Barnes, P.C. v. Martin, Lister & Alvarez, PLLC , 117 A.D.3d 1459, 1461, 985 N.Y.S.2d 776 [4th Dept. 2014], lv dismissed 24 N.Y.3d 928, 993 N.Y.S.2d 539, 17 N.E.3d 1135 [2014] ). Defendant failed to meet that heavy burden here. Although "New York courts lack the authority to subpoena out-of-state nonparty witnesses" ( Matter of Oxycontin II , 76 A.D.3d 1019, 1021, 908 N.Y.S.2d 239 [2d Dept. 2010] ), defendant submitted no evidence establishing that the investigating police officers and the emergency medical providers would not testify voluntarily in New York. The court's speculation to the contrary is unsupported by the record. In any event, both New York and Virginia are parties to the Uniform Interstate Depositions and Discovery Act (see CPLR 3119 ; Va. Code Ann § 8.01-412.10 ), and defendant could, if necessary, depose the subject witnesses in Virginia and thereafter introduce those depositions at trial in lieu of in-person testimony in New York (see CPLR 3117[a][3][ii] ). Thus, the court erred in dismissing the complaint on forum non conveniens grounds (see Corines v. Dobson , 135 A.D.2d 390, 390-393, 521 N.Y.S.2d 686 [1st Dept. 1987] ; see also Cellino & Barnes, P.C. , 117 A.D.3d at 1461, 985 N.Y.S.2d 776 ; Homola , 204 A.D.2d at 1052-1053, 613 N.Y.S.2d 310 ).