Froelich v. Skidmore , 823 N.Y.S.2d 120 ( 2006 )

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered November 25, 2005, which denied the motion of plaintiff Louis Christian Froelich II for summary judgment dismissing defendants’ counterclaim and defendants’ cross motion to dismiss the action on grounds of forum non conveniens, unanimously affirmed, without costs.

The vague affidavits submitted by both sides leave material factual questions as to the timing and location of the infant plaintiffs discharge from Louis Froelich II’s vehicle immediately prior to being struck by a second vehicle. Accordingly, a grant of summary judgment dismissing the counterclaim alleging negligence on Louis Froelich II’s part would not have been proper. In addition, Supreme Court did not improvidently exercise its discretion in denying, without prejudice to renewal, the cross motion to dismiss the action on forum non conveniens grounds. Discovery had not yet taken place and dismissal on forum non conveniens grounds could adversely affect the ability of the parties to obtain discovery from the police and medical providers who responded to the scene or provided treatment. Accordingly, the cross movants did not meet their burden of showing that New York is not a convenient forum (Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65, 74 [1984]). Concur — Andrias, J.P., Marlow, Sweeny, McGuire and Malone, JJ.