Personal Jurisdiction. Forum Non Con. Venue. Forum Selection.

CPLR R. 3211(a)(7)  pleading fails to state a cause of action

CPLR § 6301 Grounds for preliminary injunction and temporary restraining order

CPLR R. 327 Inconvenient forum

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

Cantalupo Constr. Corp. v 2319 Richmond Terrace Corp., 2012 NY Slip Op 04310 (2nd Dept. 2012)

Given the circumstances of this case, and in the interests of justice and judicial economy, the Supreme Court should have granted that branch of the plaintiff's motion which was to remove the summary nonpayment proceeding pending in Civil Court, Richmond County, to the Supreme Court, Richmond County, and to consolidate that proceeding with the instant action for specific performance of an alleged agreement to purchase the subject property (see Richmond Amboy Realty, LLC v 3881 Richmond Ave. Realty, Inc., 72 AD3d 783; Kally v Mount Sinai Hosp., 44 AD3d 1010, 1010-1011; Morrell & Co. Wine Emporium v Richalan Realty Corp., 93 AD2d 736, 737).

Gliklad v Cherney, 2012 NY Slip Op 05333 (1st Dept. 2012)

The IAS court erred in granting plaintiff's motion to strike defendant's affirmative defense of lack of personal jurisdiction. Contrary to plaintiff's contention, defendant did not waive this defense by moving for summary judgment dismissing the complaint on the merits, given that defendant had previously raised the jurisdictional defense. Competello v Giorando (51 NY2d 904 [1980]) is distinguishable, as the defendant in that case failed to raise the defense of lack of personal jurisdiction in a motion pursuant to CPLR 3211(a)(7).

Defendant failed to meet his burden of establishing that New York is an inconvenient forum for this action (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985]). Further, the subject promissory note contained a clause selecting New York as the forum, barring defendant's forum non conveniens motion (see Sebastian Holdings, Inc. v Deutsche Bank AG., 78 AD3d 446, 447 [2010]).

The court properly granted plaintiff's motion for a preliminary injunction barring defendant from prosecuting the action he had commenced in Israel over the same promissory note at issue in the instant action. A party moving for a preliminary injunction must establish a likelihood of success on the merits, irreparable harm if the injunction were not granted, and a balance of the equities in the movant's favor (see W.T. Grant Co. v Srogi, 52 NY2d 496, 517 [1981]; Casita, L.P. v MapleWood Equity Partners [Offshore] Ltd., 43 AD3d 260 [2007]). Here, even if defendant may have a meritorious defense, plaintiff made a prima facie showing that his claim under the promissory note has merit (see Matter of Witham v Finance Invs., Inc., 52 AD3d 403 [2008]; Bingham v Struve, 184 AD2d 85 [1992]). Plaintiff also established a risk that he would suffer irreparable harm if he were to travel to Israel to litigate the other action, since this act might jeopardize his Canadian asylum status. In addition, the balance of the equities favors plaintiff, since the expenditures of time and resources by the parties and the court would be potentially wasted if the Israeli action, which defendant commenced one-and-a-half years after the commencement of the instant action, were to result in a decision precluding any decision the court might have reached in this case (see Jay Franco & Sons Inc. v G Studios, LLC, 34 AD3d 297 [2006]).

Further, defendant appeared to be forum shopping by attempting to obtain a favorable decision from the Israeli court, which would interfere with the New York court's ability to resolve the issues before it (see IRB-Brasil Resseguros S.A. v Portobello Intl. Ltd., 59 AD3d 366 [2009]).

Finally, the court did not err in denying defendant's motion to renew. Contrary to defendant's contention that the court should have ordered plaintiff to post an undertaking to cover defendant's damages in the event the injunction were found to have been erroneously issued, the injunction would actually save both parties time and money by relieving them from the burden of litigating a second action (see Ithilien Realty Corp. v 180 Ludlow Dev. LLC, 80 AD3d 455 [2011]; Visual Equities Inc. v Sotheby's, Inc., 199 AD2d 59 [1993]).

Pratik Apparels, Ltd. v Shintex Apparel Group, Inc., 2012 NY Slip Op 04985 (2nd Dept. 2012)

"A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court. Absent a strong showing that it should be set aside, a forum selection agreement will control" (Hluch v Ski Windham Operating Corp., 85 AD3d 861, 862 [internal quotation marks and citations omitted]; see Bernstein v Wysoki, 77 AD3d 241, 248-249; Stravalle v Land Cargo, Inc., 39 AD3d 735, 736). "Forum selection clauses are enforced because they provide certainty and predictability in the resolution of disputes, particularly those involving international business agreements" (Brooke Group v JCH Syndicate 488, 87 NY2d 530, 534). Here, the forum selection clause contained in the subject bill of lading submitted by the defendant Classic Logistics, Inc. (hereinafter Classic), conclusively established that the plaintiff's action against Classic must be brought in federal court (see CPLR 3211[a][1]; W.J. Deutsch & Sons, Ltd. v Charbaut Am., Inc., 57 AD3d 529, 530). The plaintiff failed to show that enforcement of the forum selection clause would be unreasonable, unjust, or would contravene public policy, or that the clause is invalid because of fraud or overreaching (see Bernstein v Wysoki, 77 AD3d at 249-250; Best Cheese Corp. v All-Ways Forwarding Int'l. Inc., 24 AD3d 580, 581; Koko Contr. v Continental Envtl. Asbestos Removal Corp., 272 AD2d 585, 586).

Kassotis v Kassotis, 2012 NY Slip Op 05148 (2nd Dept. 2012)

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the plaintiff's cross motion to the extent it did, and in denying the defendant's motion without prejudice to renewal in the Family Court, Westchester County (see CPLR 510[3]; McCarthy v McCarthy, 49 AD3d 696, 697). The parties have litigated issues relating to child support in the Family Court, Westchester County, since 2006. The so-ordered stipulation, which the defendant seeks to modify, was entered in the Family Court, Westchester County. Further, the petitions filed by the defendant in the Family Court, Westchester County, are apparently still pending, as the defendant filed objections to the Support Magistrate's order denying the petitions. The Family Court, Westchester County, is familiar with the issues in the matter, while the Supreme Court, Queens County, has not been involved with the parties since the judgment of divorce was entered in February 1999. In addition, the defendant and the parties' children reside in Westchester County, and it appears that most of the material witnesses are in Westchester County (see CPLR 510[3]; McCarthy v McCarthy, 49 AD3d at 697).

Pruitt v Patsalos, 2012 NY Slip Op 04986 (2nd Dept. 2012)

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, the plaintiffs' motion pursuant to CPLR 510(2) to change the venue of the action from Orange County to Dutchess County is granted, and the Clerk of the Supreme Court, Orange County, is directed to deliver to the Clerk of the Supreme Court, Dutchess County, all papers filed in the action and certified copies of all minutes and entries (see CPLR 511[d]).

To obtain a change of venue pursuant to CPLR 510(2), a movant is required to produce admissible factual evidence demonstrating a strong possibility that an impartial trial cannot be obtained in the county where venue was properly placed (see Matter of Michiel, 48 AD3d 687; Jablonski v Trost, 245 AD2d 338, 339; Albanese v West Nassau Mental Health Ctr., 208 AD2d 665, 666). Under the circumstances of this case, including the evidence demonstrating that the defendant is a retired Orange County Supreme Court Justice, who presided in that court for more than two decades, that his relative is a retired Orange County Court Judge, and that the defendant's daughter is a Support Magistrate in the Orange County Family Court, the protection of the court from even a possible appearance of impropriety requires a change of the venue of the action from Orange County to Dutchess County (see Saxe v OB/GYN Assoc., 86 NY2d 820, 822; Kavelman v Taylor, 245 AD2d 9; Milazzo v Long Is. Light. Co., 106 AD2d 495).

 

Venue and Jurisdiction

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

CPLR R. 3211(a)(8)the court has not jurisdiction of the person of the defendant

CPLR § 302 Personal jurisdiction by acts of non-domiciliaries
(a) Acts which are the basis of jurisdiction
(1) transacts any business within the state or contracts anywhere to supply goods or services in the state

Non Con

CPLR R. 327 Inconvenient forum

CRT Invs., Ltd. v BDO Seidman, LLP, 2011 NY Slip Op 04816 (App. DIv., 1st 2011)

This litigation arises out of plaintiffs' investment in the Ascot Fund, Limited, a Cayman Islands hedge fund audited by BDO Tortuga, which was a "feeder fund" for Ascot Partners, L.P., a New York hedge fund audited by BDO Seidman. Plaintiffs asserted causes of action for fraud, aiding and abetting fraud, negligence, and gross negligence against these outside auditors for failing to disclose that the fund was ultimately managed by Bernard Madoff.

Plaintiffs failed to meet their burden of demonstrating the existence of personal jurisdiction over BDO Tortuga under New York's long arm statute (Pramer S.C.A. v Abaplus Intl. Corp., 76 AD3d 89, 95 [2010]). Plaintiffs failed to rebut defendant's affidavit (see Roldan v Dexter Folder Co., 178 AD2d 589, 590 [1991]), which established that BDO Tortuga has no presence in New York, that it performed the audit of the Ascot Fund in the Cayman Islands, pursuant to engagement letters executed in, and sent from, the Cayman Islands, and that there were only limited emails with anyone in New York "affiliated in any way with Ascot Fund." Although plaintiffs argue that BDO Tortuga relied upon the audit work that BDO Seidman had performed with respect to the existence and valuation of Ascot Partners and Ascot Fund's investments, there is no basis to conclude that BDO Tortuga should have reasonably expected to defend its actions in New York (see Kreutter v McFadden Oil Corp., 71 NY2d 460, 466 [1988]). All of the relevant parties to the cause of action (plaintiff, defendant, and audit client), and all of the work that BDO Tortuga performed were in the Cayman Islands. Nor does sending a few emails and engagement letters into New York alter this result (see Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433, 434 [2006], lv denied 9 NY3d 803 [2007]).

Plaintiffs' alternative argument, that BDO Tortuga is subject to personal jurisdiction under CPLR 302(a)(3), is also unavailing. In the context of a commercial tort, where the damage is solely economic, the situs of commercial injury is where the original critical events associated with the action or dispute took place, not where any financial loss or damages occurred (see O'Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199, 201-02 [2003]; Mid-Atlantic Residential Invs. Ltd. Partnership v McGuire, 166 AD2d 205, 206-07 [1990]). Plaintiff's claim that it was sold the investment in New York is irrelevant, because the injury did not arise out of its purchase of the investment here, but, rather, out of BDO Tortuga's alleged failure to appropriately perform its audit services. Defendants' affidavit also established that BDO Tortuga did not derive "substantial revenue" from interstate or international commerce (see LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210, 214 [2000]).

Berk v Linnehan, 2011 NY Slip Op 04820 (App. Div., 1st 2011)

The court properly denied defendants' motion for a change of venue to Suffolk County. Defendants failed to make the requisite showing that their allegedly inconvenienced non-party witnesses were actually contacted and were willing to testify (see Gissen v Boy Scouts of Am., 26 AD3d 289 [2006]; Gluck v Pond House Farm, Inc., 271 AD2d 334 [2000]; CPLR 510[3]). Defendants also failed to set forth the substance and materiality of the testimony of at least two of the three witnesses.

Koskar v Ford Motor Co., 2011 NY Slip Op 04636 (App. Div., 2nd 2011)

The doctrine of forum non conveniens permits a court to stay or dismiss an action when, although it may have jurisdiction over a claim, the court determines that "in the interest of substantial justice the action should be heard in another forum" (CPLR 327[a]). The defendant bears the burden on a motion to dismiss on the ground of forum non conveniens to "demonstrate relevant private or public interest factors which militate against accepting the litigation" (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479, cert denied 469 US 1108). "On such a motion, the Supreme Court is to weigh the parties' residencies, the location of the witnesses and any hardship caused by the choice of forum, the availability of an alternative forum, the situs of the action, and the burden on the New York court system" (Tiger Sourcing Ltd. v GMAC Commercial Fin. Corporation-Can., 66 AD3d 1002, 1003; see Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028; Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966). No one factor is dispositive (see Turay v Beam Bros. Trucking, Inc., 61 AD3d at 966; Brinson v Chrysler Fin., 43 AD3d 846, 848). The Supreme Court's determination should not be disturbed unless the court improvidently exercised its discretion or failed to consider the relevant factors (see Smolik v Turner Constr. Co., 48 AD3d 452, 453-454; Brinson v Chrysler Fin., 43 AD3d at 848). 

Here, the defendant Sail Trans Corp. failed to meet its burden of establishing that New York is an inconvenient forum for this consolidated action. Thus, the Supreme Court's determination denying that branch of its motion which was to dismiss the complaint insofar as asserted against it on the ground of forum non conveniens was not an improvident exercise of discretion (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474; Salzstein v Salzstein, 70 AD3d 806; Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028).

That branch of the appellant's motion which was to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211(a)(4) was not addressed by the Supreme Court and, thus, remains pending and undecided (see Katz v Katz, 68 AD2d 536, 542-543).

U.S. Bank, Natl. Assn. v Arias, 2011 NY Slip Op 05487 (App. DIv., 2nd 2011)

By order to show cause dated January 27, 2010, the defendant moved pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. The Supreme Court denied the defendant's motion in its entirety, without conducting a hearing. We reverse. 

"A process server's affidavit of service constitutes prima facie evidence of proper service" (Scarano v Scarano, 63 AD3d 716, 716). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing (see Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139), no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits'" (Scarano v Scarano, 63 AD3d at 716, quoting Simonds v Grobman, 277 AD2d 369, 370).

Here, the Supreme Court erred in determining the defendant's motion without first conducting a hearing. The process server's affidavits constituted prima facie evidence of proper service (see Scarano v Scarano, 63 AD3d at 716). However, to rebut that showing, the defendant submitted a sworn denial of service containing specific facts to rebut the presumption of proper service. Furthermore, in replying to contentions raised by the plaintiff in its opposition papers, the defendant submitted documentary evidence supporting his claim that he did not reside at the subject premises or at the Long Island City address in 2008. The defendant's submission was sufficient to rebut the prima facie showing of proper service, and to necessitate a hearing. Accordingly, the matter must be remitted to the Supreme Court, Queens County, for a hearing to determine whether the defendant was properly served with process pursuant to CPLR 308(2), and for a new determination thereafter of his motion to vacate the judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

Sufficient Start

Marist Coll. v Brady, 2011 NY Slip Op 04638 (App. Div., 2nd 2011)

Under the circumstances, the Supreme Court properly exercised its discretion in deciding, on the merits, that branch of the appellants' application which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction (see Fugazy v Fugazy, 44 AD3d 613, 614). As the party seeking to assert personal jurisdiction, the plaintiff bears the ultimate burden of proof on this issue (see Alden Personnel, Inc. v David, 38 AD3d 697, 698; Brandt v Toraby, 273 AD2d 429, 430). To successfully oppose a motion to dismiss pursuant to CPLR 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, the plaintiff did not need to make a prima facie showing of jurisdiction, but instead only needed to set forth "a sufficient start, and [show its] position not to be frivolous" (Peterson v Spartan Indus., 33 NY2d 463, 467; see Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d 623, 624; American BankNote Corp. v Daniele, 45 AD3d 338, 340; Cordero v City of New York, 236 AD2d 577, 578).

Since the plaintiff established that facts " may exist'" to exercise personal jurisdiction over the appellants and has made a "sufficient start" to warrant further discovery on that issue, the Supreme Court properly denied that branch of the appellants' application which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction (Peterson v Spartan Indus., 33 NY2d at 467; see Shore Pharm. Providers, Inc. v Oakwood Care Ctr., Inc., 65 AD3d at 624; Castillo v Star Leasing Co., 69 AD3d 551, 552; cf. Lang v Wycoff Hgts. Med. Ctr., 55 AD3d 793, 794; Roldan v Dexter Folder Co., 178 AD2d 589, 589). However, since the plaintiff failed to demonstrate, prima facie, that the appellants were subject to the Supreme Court's long-arm jurisdiction pursuant to CPLR 302(a)(3)(ii) (cf. Alden Personnel, Inc. v David, 38 AD3d at 698), we modify the order appealed from to allow the appellants to seek dismissal of the complaint pursuant to CPLR 3211(a)(8) upon the completion of discovery (see Ying Jun Chen v Lei Shi, 19 AD3d 407, 407-408; Lettieri v Cushing, 80 AD3d 574, 575-576).

HBK Master Fund L.P. v Troika Dialog USA, Inc., 2011 NY Slip Op 05569 (App. Div., 1st 2011)

Plaintiffs made a "sufficient start" in demonstrating that the Russian defendants were doing business in New York through their direct or indirect subsidiaries to warrant further discovery on the issue of personal jurisdiction, including whether the parents exercised control over the subsidiaries and are therefore subject to New York's long-arm jurisdiction (see Peterson v Spartan Indus., 33 NY2d 463, 467 [1974]; Edelman v Taittinger, S.A., 298 AD2d 301, 302 [2002]).

OrthoTec, LLC v Healthpoint Capital, LLC, 2011 NY Slip Op 04533 (App. Div., 1st 2011)

We do not find that "in the interest of substantial justice the action should be heard in" France (see CPLR 327[a]). "Generally, unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed" (Anagnostou v Stifel, 204 AD2d 61, 61 [1994] [internal quotation marks and citations omitted]). This is true even though plaintiff is not a New York resident (see Travelers Cas. & Sur. Co. v Honeywell Intl. Inc., 48 AD3d 225, 226 [2008]; Bank Hapoalim [Switzerland] Ltd. v Banca Intesa S.p.A., 26 AD3d 286, 287 [2006]). The fact that defendants are New York residents weighs against forum non conveniens dismissal (see e.g. Anagnostou, 204 AD2d at 62). Even if some documents will have to be translated from French into English, that does not require dismissal (see e.g. American BankNote Corp. v Daniele, 45 AD3d 338, 340 [2007]).

Forum Non Con (CPLR R. 327)

CPLR R. 327 Inconvenient forum

Matter of OxyContin II, 2010 NY Slip Op 06636 (App. Div., 2nd 2010)

ORDERED that the order is reversed, on the law, on the facts, and in the exercise of discretion, with costs, and the defendants' motion pursuant to CPLR 327(a) to dismiss the complaints of the plaintiffs who reside outside of New York State is granted on condition that the defendants stipulate (1) that they will accept service of process in newly commenced out-of-state actions upon the same causes of action as those asserted in the instant complaints by the out-of-state plaintiffs; (2) that they will waive any defenses which were not available to them in New York at the time of service upon them of a copy of this decision and order; (3) that each deposition of any of their home-office employees taken by a plaintiff's counsel may be cross-noticed and deemed to be taken in all of the cases of that counsel; and (4) that, in the new forum, they will not raise any objection to having their home-office employees appear for deposition or trial on the ground of venue or location of the lawsuit; the out-of-state plaintiffs' time to commence the new actions shall [*2]be within 90 days after service of the stipulation upon the plaintiffs; and it is further,

ORDERED that the defendants' time to stipulate shall be within 30 days after service upon them of a copy of this decision and order; in the event that the defendants fail to so stipulate, then the order is affirmed, with costs.

****

The Court of Appeals has said that, "[o]rdinarily, 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 . . . dismiss such actions where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere" (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [footnote omitted]). The Supreme Court held that the actions brought by the nonresident plaintiffs should be adjudicated in New York State. We disagree and reverse, because we conclude that, although jurisdictionally sound, the actions brought by the nonresidents would be better adjudicated elsewhere.

On a motion to dismiss on the ground of forum non conveniens, the burden is on the defendant challenging the forum to demonstrate that considerations relevant to private or public interest militate against accepting or retaining the litigation (see Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028, 1029; Stravalle v Land Cargo, Inc., 39 AD3d 735, 736). "Among the factors the court must weigh are the residency of the parties, the potential hardship to proposed witnesses including, especially, nonparty witnesses, the availability of an alternative forum, the situs of the underlying actionable events, the location of evidence, and the burden that retention of the case will impose upon the New York courts" (Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966; see Jackam v Nature's Bounty, Inc., 70 AD3d 1000, 1001; Tiger Sourcing [HK] Ltd. v GMAC Commercial Fin. Corporation-Can., 66 AD3d 1002, 1003). Also of importance, inter alia, is the extent to which the defendant will face particular difficulties in litigating the claim in this State (see Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65, 73;Varkonyi v S.A. Empresa De Viacao Airea Rio Grandense [Varig], 22 NY2d 333, 338; Waterways Ltd. v Barclays Bank PLC, 174 AD2d 324, 327). In this case, these considerations weigh heavily against retaining the actions of the nonresident plaintiffs.

There is no significant dispute that the Oxycontin involved was not manufactured in New York, and the defendant's corporate offices are not located in this State. None of the nonresident plaintiffs purchased Oxycontin in New York, none ingested the drug here and, importantly, none received treatment for alleged resulting injuries in this State. Consequently, witnesses with critical information on both proximate cause and damages do not reside in New York. That fact presents substantial difficulties for the defendants inasmuch as New York courts lack the authority to subpoena out-of-state nonparty witnesses (see Judiciary Law § 2-b[1]; Wiseman v American Motors Sales Corp., 103 AD2d 230, 234 ["service of a subpoena on a nonparty witness outside this State is void because no authorization for such service exists"]). Moreover, "[u]nder[*3]established conflict of laws principles, the applicable law should be that of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation'" (Matter of Doe, 14 NY3d 100, 109, quotingBabcock v Jackson, 12 NY2d 473, 481; see King v Car Rentals, Inc., 29 AD3d 205, 208). Thus, inasmuch as the hundreds of nonresident plaintiffs come from almost all of the 50 states and Puerto Rico, should New York courts retain those cases, they might well be called upon to apply different principles of law to identical claims. Moreover, under the circumstances presented here, we can find no strong counterbalancing consideration for retaining the cases of the out-of-state plaintiffs in our courts. Consequently, we find that the Supreme Court improvidently exercised its discretion in denying the defendant's motion to dismiss. Nevertheless, in order to ensure the availability of a forum for the claims of the nonresident plaintiffs, our reversal is conditioned on the defendants' entering into a stipulation as indicated herein (see Jackam v Nature's Bounty, Inc., 70 AD3d at 1002; Turay v Beam Bros. Trucking, Inc., 61 AD3d at 967; Brinson v Chrysler Fin., 43 AD3d 846, 848). 

The bold is mine.

CPLR R. 327 and the borrowing statute (CPLR § 202 )

Patriot Exploration, LLC v Thompson & Knight LLP, 2010 NY Slip Op 06217 (App. Div., 1st, 2010)

In this legal malpractice action, the motion court did not abuse its discretion in declining to dismiss this action on forum non conveniens grounds (see Shin-Etsu Chem. Co., Ltd. v ICICI Bank Ltd., 9 AD3d 171, 175-77 [2004]). Since the court may grant a forum non conveniens motion "on any conditions that may be just" (CPLR 327[a]), which includes the power to impose "reasonable conditions designed to protect plaintiffs' interests" (Chawafaty v Chase Manhattan Bank, 288 AD2d 58, 58 [2001], lv denied 98 NY2d 607 [2002]), the court could properly condition an inconvenient-forum dismissal on a waiver of the foreign forum's
two-year statute of limitation (see e.g. Healy v Renaissance Hotel Operating Co., 282 AD2d 363, 364 [2001]; Seung-Min Oh v Gelco Corp., 257 AD2d 385, 387 [1999]; Highgate Pictures v De Paul, 153 AD2d 126, 129 [1990]).

Nor can defendant prevail on its belated offer, made in its motion for reargument, to waive its potential statute of limitations defense, since the court had also properly found that defendant had not met its burden of establishing that New York was an inconvenient forum and that the matter should be tried in Texas based upon a consideration of factors including potential hardship to proposed witnesses, the location of records and files, the residency of the parties, and the burden imposed upon the New York courts (see Gulf Oil Corp. v Gilbert, 330 US 501, 508 [1947]; Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479 [1984], cert denied, 469 US 1108 [1985]).

Read the dissent.  You don't see it here?  Click the link, stupid.

Venue and Consolidation

Grinman v Alamo Rent A Car, Inc., 2010 NY Slip Op 03067 (App. Div., 2nd, 2010)

The Supreme Court did not improvidently exercise its discretion in granting the motion of the defendants Highland Trans Fleet and Manuel Rebelo and that branch of the cross motion of the defendants Alamo Rent A Car, Inc., National Car Rental, Inc., and Inna Grinman which were to change the venue of the action from Kings County to Steuben County where the underlying motor vehicle accident occurred. The affirmations of the defendants' attorneys and supporting evidence sufficiently detailed (1) the names, addresses, and occupations of numerous prospective witnesses, at least one of whom was a State Trooper based in Bath, (2) the facts to which the witnesses will testify at trial, (3) a statement that the witnesses are willing to testify, and (4) a statement that the witnesses would be greatly inconvenienced if the venue of the action was not changed (see Walsh v Mystic Tank Lines Corp., 51 AD3d 908, 909; Lafferty v Eklecco, LLC, 34 AD3d 754, 755; Professional Veh. Leasing v Continuing Dev. Servs., 275 AD2d 313, 314).

KMK Safety Consulting, LLC v Jeffrey M. Brown Assoc., Inc., 2010 NY Slip Op 02927 (App. Div., 2nd, 2010)

In the present action, arising out of a contractual dispute and
commenced in the Supreme Court, Richmond County, the defendants produced
a copy of the subject contract in support of their motion. That
contract recited, inter alia, that the defendant Jeffrey M. Brown
Associates, Inc., was a Pennsylvania corporation, and it further
provided, in relevant part, that "[a]ny dispute between the parties
related to this Contract shall be determined by the Pennsylvania Court
of Common Pleas, Philadelphia County." Contrary to the plaintiff's
contention, the Supreme Court properly granted the defendants' motion to
dismiss the complaint on the basis of documentary evidence containing
this unambiguous forum selection clause.

"A contractual forum selection clause is prima facie valid and
enforceable unless it is shown by the challenging party to be
unreasonable, unjust, in contravention of public policy, invalid due to
fraud or overreaching, or it is shown that a trial in the selected forum
would be so gravely difficult that the challenging party would, for all
practical purposes, be deprived of its day in court" (LSPA Enter.,
Inc. v Jani-King of N.Y., Inc., 31 AD3d 394, 395; see Boss v American [*2]Express
Fin. Advisors Inc., 6 NY3d 242, 246; Brooke Group v JCH
Syndicate 488, 87 NY2d 530, 534; Trump v Deutsche Bank Trust Co. Ams., 65 AD3d
1329, 1331; W.J. Deutsch & Sons, Ltd. v Charbaut Am., Inc.,
57 AD3d 529; Koob v IDS Fin. Servs., 213 AD2d 26, 33). The
plaintiff's vague and conclusory assertions that the forum selection
clause is unconscionable and unreasonable are inadequate to defeat the
defendants' motion (see Tatko Stone Prods., Inc. v Davis-Giovinzazzo
Constr. Co., Inc., 65 AD3d 778, 779; Horton v Concerns of Police Survivors, Inc., 62
AD3d 836, 836-837; Casper v Pines Assocs., L.P., 53 AD3d 764,
765; Stravalle v Land Cargo, Inc., 39 AD3d 735,
736; LSPA En-ter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394,
395). Similarly, the plaintiff's contentions that its president did not
read the contract and was unaware of its terms prior to signing it are
patently unavailing (see Gillman v Chase Manhattan Bank, 73 NY2d
1, 11; British W. Indies Guar. Trust Co. v Banque Internationale A
Luxembourg, 172 AD2d 234).

Richmond Amboy Realty, LLC v 3881 Richmond Ave. Realty, Inc., 2010 NY Slip Op 03098 (App. Div., 2nd, 2010)

In the interests of judicial economy, the Supreme Court providently
exercised its discretion in granting those branches of the plaintiff's
motion which were to remove a summary nonpayment proceeding, pending in
the Civil Court, to the Supreme Court, and to consolidate that
proceeding with the instant action seeking, inter alia, a declaration
regarding the plaintiff tenant's right to be restored to possession of
the premises (see CPLR 602[b]; Pinecrest Natl. Funding, LLC., v
Aatlas-B Props., Inc., 68 AD3d 833; Kally v Mount Sinai Hosp.,
44 AD3d 1010).

Jackam v Nature's Bounty, Inc., 70 AD3d 1000 (App. Div., 2nd, 2010)

The plaintiffs commenced this action against the
defendants in November 2004. After some discovery was completed, the
defendants moved in
March 2006 to dismiss the complaint on the ground of forum non
conveniens. The Supreme
Court denied the motion without prejudice to renewal after discovery was
completed.
Accordingly, after discovery was completed, the defendants renewed their
motion to dismiss the
complaint in September 2008 on the ground of forum non conveniens. The
court again denied
the motion. We reverse. "The common-law doctrine of forum non
conveniens, also
articulated in CPLR 327 (a), permits a court to stay or dismiss [an
action] where it is determined
that the action, although jurisdictionally sound, would be better
adjudicated elsewhere. In a
motion to dismiss on the ground of forum non conveniens, the burden is
on a defendant
challenging the forum to demonstrate relevant private or public interest
factors which militate
against accepting the litigation here. The court's determination will
not be disturbed on appeal
unless the court has failed to properly consider all the relevant
factors" (Prestige Brands, Inc.
v Hogan & Hartson, LLP, 65 AD3d 1028, 1028-1029 [2009] [internal
quotation marks and
citations omitted]; see Islamic Republic of Iran v Pahlavi, 62
NY2d 474 [1984], cert
denied 469 US 1108 [1985]; Harleysville Ins. Co. v Ermar Painting
& Contr., Inc., 8
AD3d 229 [2004]; Korea Exch. Bank v A.A. Trading Co., 8 AD3d 344
[2004]). Among
the factors the court must weigh are "the residency of the parties, the
potential hardship to
proposed witnesses including, especially, nonparty witnesses, the
availability of an alternative
forum, the situs of the underlying actionable events, the location of
evidence, and the burden that
retention of the case will impose upon the New York courts" (Turay v
Beam Bros. Trucking,
Inc., 61 AD3d 964, 966 [2009]). "The court has discretion whether
[or not] to retain
jurisdiction" (Rosenberg v Stikeman Elliott, LLP, 44 AD3d 840,
841 [2007]). The court's
determination will not be disturbed on appeal "absent an improvident
exercise of
. . . discretion or a failure to consider the relevant factors" (Brinson
v Chrysler
Fin., 43 AD3d 846, 848 [2007]; see Islamic Republic of Iran v
Pahlavi, 62 NY2d
474 [1984]; Cheggour v R'Kiki, 293 AD2d 507, 508 [2002]).

Here, even though the defendants are New York residents, their
renewed motion to dismiss
the complaint on the ground of forum non conveniens should have been
granted. The record
establishes that the injured plaintiff ingested Xtreme Lean in Georgia,
and that his alleged injury
and all of his subsequent medical treatment for that alleged injury
occurred in Georgia.
Furthermore, all of the injured plaintiff's treating physicians and his
medical records are located
in Georgia. There are also additional fact witnesses that reside in
Georgia. While the defendants
have not produced affidavits from those witnesses showing that it would
be a hardship for them
to travel to New York to testify, it appears that the plaintiffs have
frustrated the defendants'
efforts to obtain discovery and depositions from those witnesses in
Georgia. This has made it
difficult, if not impossible, for the defendants to produce these
affidavits. Under these
circumstances, since it appears that all or most of the evidence that
will be required from the
defendants would be in the form of documents, and since the defendants
have agreed to be
subject to subpoena in Georgia, which appears to be available as an
alternate forum, the Supreme
Court improvidently exercised its discretion in denying the defendants'
renewed motion to
dismiss the complaint on the ground of forum non conveniens (see
Prestige Brands, Inc. v
Hogan & Hartson, LLP, 65 AD3d 1028 [2009]; Brinson v Chrysler
Fin., 43 AD3d
846 [2007]; Cheggour v R'Kiki, 293 AD2d at 508; Evdokias v
Oppenheimer,
123 AD2d 598 [1986]; see also Matter of Henry v Skratt, 11 AD3d
691 [2004]; cf.
Harleysville Ins. Co. v Ermar Painting & Contr., Inc., 8 AD3d
229 [2004]).

In order to assure the availability of a forum for the action,
our reversal and granting of the
defendants' motion to dismiss the complaint pursuant to CPLR 327 is
conditioned on the
defendants stipulating to waive jurisdictional and statute of
limitations defenses (see
CPLR 327 [a]; Turay v Beam Bros. Trucking, Inc., 61 AD3d 964
[2009]).

The bold is mine.

Forum Non Con: CPLR R. 327

CPLR R. 327 Inconvenient forum

Tiger Sourcing (HK) Ltd. v GMAC Commercial Fin. Corporation-Canada, 2009 NY Slip Op 07828 (App. Div., 2nd, 2009)

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" (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479, cert denied 469 US 1108). The defendant bears the burden in a motion to dismiss on the ground of forum non conveniens to "demonstrate relevant private or public interest factors which militate against accepting the litigation" (id.). On such a motion, the Supreme Court is to weigh the parties' residencies, the location of the witnesses and any hardship caused by the choice of forum, the availability of an alternative forum, the situs of the action, and the burden on the New York court system (see Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028; Turay v Beam Bros. Trucking, Inc., 61 AD3d 964, 966). No one factor is dispositive (see Turay v Beam Bros. Trucking, Inc., 61 AD3d at 966; Brinson v Chrysler Fin., 43 AD3d 846, 848). The Supreme Court's determination should not be disturbed unless the court improvidently exercised its discretion or failed to consider the relevant factors (see Smolik v Turner Constr. Co., 48 AD3d 452, 453-454; Brinson v Chrysler Fin., 43 AD3d at 848).

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting that branch of the defendants' joint motion which was to dismiss the complaint on the ground of forum non conveniens (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474; Prestige Brands, Inc. v Hogan & Hartson, LLP, 65 AD3d 1028; Turay v Beam Bros. Trucking, Inc., 61 AD3d 964; Smolik v Turner Constr. Co., 48 AD3d 452; Stravalle v Land Cargo, Inc., 39 AD3d 735, 736).

The bold is mine.

CPLR § 510; CPLR R. 511; Forum Non Con; Venue Selection Clause

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

CPLR R. 327 Inconvenient forum

Feather v Goglia, 2009 NY Slip Op 06661 (App. Div., 2nd, 2009)

The plaintiff placed the venue of this action in Queens County based
upon the defendant's purported residence at the time of the
commencement of the action (see CPLR 503[a]). The defendant
moved to transfer the venue of the action to Nassau County, alleging
that he did not reside in Queens County when the action was commenced.
In support of the motion, the defendant submitted, inter alia, several
mobile telephone bills and a motor vehicle lease bearing his name and a
Nassau County address, and several electric bills addressed to a person
named Catherine Goglia at the same Nassau County address. Thus, the
defendant raised an issue of fact as to whether he resided in Nassau
County when this action was commenced (see Johnson v Gioia, 38 AD3d 845; Rivera v Jensen,
307 AD2d 229, 230). Furthermore, the evidence submitted by the
plaintiff in opposition, that the defendant's driver's license listed a
Queens County address and that the vehicle registration listed a Nassau
County address, only raised further issues of fact regarding residency (see Gonzalez v Weiss, 38 AD3d 492).
Since this issue of fact could not properly have been resolved on the
papers alone, the Supreme Court should have held a hearing on the issue
of residency prior to determination of the motion (see Johnson v Gioia, 38 AD3d 845; Ramondi v Paramount Leasehold L.P., 37 AD3d 447).

The plaintiff's contention that the defendant is estopped from
contesting venue because the defendant failed to comply with Vehicle
and Traffic Law § 505(5) is without merit. The cases relied upon by the
plaintiff are distinguishable, inasmuch as all of those cases address
service of process (see e.g. Walker v Reyes, 59 AD3d 436, 437; Candela v Johnson, 48 AD3d 502, 503; [*2]Velasquez v Gallelli, 44 AD3d 934, 935). In contrast, the instant appeal involves a motion pursuant to CPLR 510 and 511 to transfer the venue of the action.

Goldberg v Goldberg, 2009 NY Slip Op 06800 (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion in denying the
appellant's motion pursuant to CPLR 510(3) to change the venue of this
action from Kings County to Sullivan County based on the convenience of
material witnesses (see Frankel v Stavsky, 40 AD3d 918, 919; O'Brien v Vassar Bros. Hosp.,
207 AD2d 169, 172). In support of his motion, the appellant failed to
sufficiently establish that the nonparty witnesses for whose
convenience the change of venue was sought were willing to testify on
his behalf and would be inconvenienced if venue were not changed (see Walsh v Mystic Tank Lines Corp., 51 AD3d 908, 909; Miszko v Leeds & Morelli, 269 AD2d 372; Cumberbatch v Gatehouse Motel & Rest., 265 AD2d 370; Rich v O'Connor, 212 AD2d 767). Moreover, the appellant failed to specify the nature and materiality of their anticipated testimony (see Shindler v Warf, 24 AD3d 429, 430; Giaimo v Hastings, 19 AD3d 365, 366; Weisemann v Davison, 162 AD2d 448).

Brown v Dawson, 2009 NY Slip Op 06734 (App. Div., 2nd, 2009)

Plaintiff properly placed venue in New York County based upon St.
Vincent's Hospital and Medical Center's designation of New York County
as its corporate residence on its certificate of incorporation (see CPLR 503[c]; Krochta v On Time Delivery Serv., Inc., 62 AD3d 579, 580 [2009]; Velasquez v Delaware Riv. Val. Lease Corp., 18 AD3d 359, 360 [2005]).

Nor does the record support a discretionary change of venue
pursuant to CPLR 510(3), inasmuch as appellant failed to detail the
identity and availability of proposed witnesses, the nature and materiality of the anticipated testimony and the manner in which they would be inconvenienced by the designated venue (see Parker v Ferraro, 61 AD3d 470 [2009]). 

Trump v Deutsche Bank Trust Co. Ams., 2009 NY Slip Op 06831 (App. Div., 2nd, 2009)

A contractual forum selection clause is prima facie valid and
enforceable "unless it is shown by the challenging party to be
unreasonable, unjust, in contravention of public policy, invalid due to
fraud or overreaching, or it is shown that a trial in the selected
forum would be so gravely difficult that the challenging party would,
for all practical purposes, be deprived of its day in court" (Horton v Concerns of Police Survivors, Inc., 62 AD3d 836, lv denied NY3d, 2009 NY Slip Op 83212 [2009]; see Brook Group v JCH Syndicate 488, 87 NY2d 530, 534; Harry Casper, Inc., v Pines Assoc., L.P., 53 AD3d 764, 764-765; Best Cheese Corp. v All-Ways Forwarding Int'l., Inc., 24 AD3d 580, 581; Fleet Capital Leasing/Global Vendor Fin. v Angiuli Motors, Inc., 15 AD3d 535, 536; Premium Risk Group v Legion Ins. Co.,
294 AD2d 345, 346). The plaintiffs failed to demonstrate that the
subject clause contained in the Mezzanine Loan Agreement was invalid
for any of these reasons. Nor is there any merit to their argument that
the subject clause contained in the Mezzanine Loan Agreement was either
permissive or insufficiently mandatory, or applied only to actions
commenced by the lender (see e.g. Fear & Fear, Inc. v N.I.I. Brokerage, L.L.C.,
50 AD3d 185). Further, and contrary to the plaintiffs' contention, the
Mezzanine Loan Agreement forum selection clause is neither subordinate
to, nor in conflict with, the forum selection clause in the
construction loan agreement. We also reject the claim that the [*3]complaint
in Action No. 1 does not seek relief from the Mezzanine defendants
sufficient to trigger the forum selection clause in the Mezzanine Loan
Agreement. Accordingly, the motion pursuant to CPLR 501 and 511 to
change the venue of Action No. 1 from Queens County to New York County
should have been granted, and the two actions should have been directed
to be jointly tried in New York County.

Kargbo-Turay v Beam Bros. Trucking, Inc., 2009 NY Slip Op 06806 (App. Div., 2nd, 2009)

In a closely related action arising out of the same incident, we
held that the motion for dismissal under the doctrine of forum non
conveniens pursuant to CPLR 327(a) should have been granted, with
certain conditions (see Turay v Beam Bros. Trucking Inc., 61
AD3d 964). In this case, there is nothing that supports a different
result, and we find that "in the interest of substantial justice the
action should be heard in another forum" (CPLR 327[a]).

To assure the availability of a forum for the action, our
reversal and granting of the motion to dismiss is conditioned upon the
appellant stipulating to waive jurisdictional and statute of
limitations defenses as indicated (see CPLR 327[a]; see Turay v Beam Bros. Trucking Inc., 61 AD3d at 964; Cheggour v R'Kiki, 293 AD2d 507).

The bold is mine.

CPLR R. 327

CPLR R. 327 Inconvenient forum

(a)
When the court finds that in the interest of substantial justice the
action should be heard in another forum, the court, on the motion of
any party, may stay or dismiss the action in whole or in part on any
conditions that may be just. The domicile or residence in this state of
any party to the action shall not preclude the court from staying or
dismissing the action.

Turay v Beam Bros. Trucking, Inc., 2009 NY Slip Op 03510 (App. Div., 2nd, 2009)

New York courts are not compelled to retain jurisdiction over any case which does not have a substantial nexus to New York (see Silver v Great Am. Ins. Co., 29 NY2d 356, 361; Wentzel v Allen Mach., 277 AD2d 446, 447; United Jersey Bank v Weintraub, 240 AD2d 656; Dawson v Seenardine, 232 AD2d 521; Stamm v Deloitte and Touche, 202 AD2d 413; Manaster v Northstar Tours, 193
AD2d 651, 651-652). The doctrine of forum non conveniens, which
embodies this principle, is codified in CPLR 327(a): "When the court
finds that in the interest of substantial justice the action should be
heard in another forum, the court, on the motion of any party, may stay
or dismiss the action in whole or in part on any conditions that may be
just. The domicile or residence in this state of any party to the
action shall not preclude the court from staying or dismissing the
action."

On a motion to dismiss on the ground of forum non conveniens,
the burden is on the movant to demonstrate the relevant private or
public interest factors that militate against a New York court's
acceptance of the litigation (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479, cert denied 469 US 1108; Stravalle v Land Cargo, Inc., 39
AD3d 735, 736). Among the factors the court must weigh are the
residency of the parties, the potential hardship to proposed witnesses
including, especially, nonparty witnesses, the availability of an
alternative forum, the situs of the underlying actionable events, the
location of evidence, and the burden that retention of the case will
impose upon the New York courts. No single factor controls, so that the
fact that a particular litigant resides in New York is not dispositive (see Smolik v Turner Constr. Co., 48 AD3d 452, 454; Kefalas v Kontogiannis, 44 AD3d 624, 625; Brinson v Chrysler Fin., 43 AD3d 846, 848; Stravalle v Land Cargo, Inc., 39
AD3d at 736). A court's determination will not be disturbed on appeal
unless that court failed to properly consider all the relevant factors
or improvidently exercised its discretion in deciding the motion (see Smolik v Turner Constr. Co., 48 AD3d at 454; Rosenberg v Stikeman Elliott, LLP, 44 AD3d 840, 841).

Here, even accepting that Turay is a resident of New York, the motion should have been granted (see Smolik v Turner Constr. Co., 48
AD3d at 453). The record establishes that the collision occurred in
North Carolina, and police and medical personnel from that state were
involved in the case and will likely be necessary and important
witnesses (see Cheggour v R'Kiki, 293 AD2d 507, 508). Moreover,
there is no record evidence, but only conclusory assertions, as to the
involvement of New York physicians (see Brinson v Chrysler Fin., 43
AD3d at 848). Also, the defendants have little or no connection to New
York. Further, the burden of adjudicating the case in New York, given
that North Carolina has the most significant nexus to the case,
militates against retaining the action in this state. Under the
circumstances, the Supreme Court improvidently exercised its discretion
in denying that branch of the defendants' motion which was to dismiss
the case on the ground of forum non conveniens.
[*3]

In order to assure the
availability of a forum for the action, our reversal and granting of
the branch of the defendants' motion which was to dismiss the complaint
pursuant to CPLR 327 is conditioned on the defendants stipulating to
waive jurisdictional and statute of limitations defenses as indicated
herein (see CPLR 327[a]; Cheggour v R'Kiki, 293 AD2d at 507).

The bold is mine.

CPLR R. 3211(a)(1), CPLR R. 3211(a)(2), CPLR R. 327, and a forum selection clause

CPLR R. 3211 Motion to dismiss

CPLR R. 3211(a)(1) a defense is founded upon documentary evidence
CPLR R. 3211(a)(2) the court has not jurisdiction of the subject matter of the cause of action
CPLR R. 327 Inconvenient forum

Lischinskaya v Carnival Corp., 2008 NY Slip Op 07875 (App. Div., 2d)

While we thus find that the forum selection clause upon which
Carnival relies does not contravene federal law, we nevertheless
conclude that the Supreme Court was incorrect in holding that
enforcement of that clause deprived it of subject matter jurisdiction.
"A court lacks subject matter jurisdiction when it lacks the competence
to adjudicate a particular kind of controversy in the first place" (Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 243). The competence of the Supreme Court to adjudicate maritime tort cases has not been questioned (see e.g. Mulhern v Manhasset Bay Yacht Club, 43 AD3d 425; Ayala v S.S. Fortaleza, 40 AD3d 440; Hayes v City of New York, 34 AD3d 208; Smith v Lone Star Indus., 1 AD3d 860).
Rather, the defendant's argument here is that the jurisdiction of the
court has been divested by a term of the contract between the parties.
That argument has been rejected, for good reason, as "hardly more than
a vestigial legal fiction" (M/S Bremen v Zapata Off-Shore Co., 407 US at 12).

"Subject matter jurisdiction . . . is not dependent upon the
state of facts which may appear in a particular case, arising, or which
is claimed to have arisen, under that general question" (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166, quoting Hunt v Hunt, 72 NY 217, 229). As "a court of original, unlimited and unqualified jurisdiction" (Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718, quoting Kagen v Kagen, 21 NY2d 532, 537; see Lacks v Lacks, 41 NY2d 71, 75), the Supreme Court of the State of New York cannot be divested of its jurisdiction even by the Legislature (see Pollicina v Misericordia Hosp. Med. Ctr., 82 NY2d 332, 339). It is axiomatic that a court cannot be divested of its subject matter jurisdiction by a contract (see Wm. H. Muller & Co. v Swedish American Line Ltd., 224 F2d 806, 808, cert denied 350 US 903; Sliosberg v New York Life Ins. Co., 217
App Div 685, 688-689). Thus, while the forum selection clause at issue
here may be enforceable as a term of the contract between the parties,
it does not affect the jurisdiction of the Supreme Court (see LFC Lessors, Inc. v Pacific Sewer Maintenance Corp., 739 F2d 4, 6-7; Central Contracting Co. v Maryland Cas. Co., 367 F2d 341, 345).

We recognize that there is an ongoing debate in the federal
courts as to the nature of a dismissal pursuant to a contractual forum
selection clause (see Asoma Corp. v SK Shipping Co., Ltd., 467 F3d 817, 822; New Moon Shipping Co., Ltd. v MAN B & W Diesel AG, 121 F3d 24, 28; Licensed Practical Nurses, Technicians and Health Care Workers of New York, Inc. v Ulysses Cruises, Inc., 131
F Supp 2d 393, 402-409) and that we have, in the past, affirmed such
dismissals for lack of subject matter jurisdiction, pursuant to CPLR
3211(a)(2) (see LSPA Enter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394; Fleet Capital Leasing/Global Vendor Fin. v Angiuli Motors, Inc., 15 AD3d 535).
These two cases should no longer be followed in that regard. As a term
of the contract between the parties, however, a contractual forum
selection clause is documentary evidence (see Trataros Constr., Inc. v New York City Hous. Auth., 34 AD3d 451, 452; Holiday Mgt. Assoc. v New York Inst. of Tech., 149 AD2d 462, 465; Siegel, NY Prac § 259 [4th ed]; see also 150 Broadway N.Y. Assoc., L.P. v Bodner, 14 AD3d 1) that may provide a proper basis for dismissal pursuant to CPLR 3211(a)(1) (see Boss v American Express Fin. Advisors, Inc., 6 NY3d 242).

Since the Supreme Court was not without subject matter
jurisdiction of the action by virtue of the enforcement of the
contractual forum selection clause, it was not foreclosed from
considering the availability, upon dismissing the complaint, of
granting relief to the plaintiff pursuant to CPLR 327. Nevertheless, we
affirm the Supreme Court's denial of the plaintiff's request for such
relief, on a different ground.

CPLR 327 articulates the common-law doctrine of forum non conveniens (see Islamic [*5]Republic of Iran v Pahlavi, 62 NY2d 474, 478, cert denied 469
US 1108; Alexander, Practice Commentaries, McKinneys Cons Laws of NY,
Book 7B, C327:1 [2001 ed]). It permits a court, in its discretion, to
impose "any conditions that may be just" when dismissing an action on
the ground that "in the interest of substantial justice the action
should be heard in another forum" (CPLR 327; see Demenus v Sylvester, 146 AD2d 668).

Here, however, the dismissal is not discretionary, but is the
necessary consequence of enforcing the contract between the parties. As
a result, considerations such as the impact of the dismissal on the
plaintiff and whether fatality to the plaintiff's claims can be
avoided, which are legitimate in applying CPLR 327 (see Singh v Zuidema, 221 AD2d 1020; Crown Cork & Seal Co. v Rheem Mfg. Co., 64 AD2d 545), where the court is balancing interests (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474; Chawafaty v Chase Manhattan Bank, N.A., 288
AD2d 58), are irrelevant. Rather, in this regard, the dismissal is
analogous to a dismissal based upon lack of personal jurisdiction,
where those considerations play no role (see Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574, 579; Sanchez v Major, 289 AD2d 320, 321; Sarfaty v Rainbow Helicopters, Inc., 221 AD2d 618, 619; Foley v Roche, 68 AD2d 558, 565).

Thus, contrary to the plaintiff's argument, even though the
Supreme Court had jurisdiction of the matter despite the forum
selection clause, it had no authority to grant discretionary relief to
the plaintiff pursuant to CPLR 327 once it determined that the contract
required that the complaint be dismissed. We therefore affirm the order
of the Supreme Court.

SANTUCCI, ANGIOLILLO and CARNI, JJ., concur.