Taurus, Inc. v. Boeck Fuel Co. , 330 N.Y.S.2d 451 ( 1972 )

Motion for renewal and reargument granted, and, on reargument, the original decision and order of this court on appeal No. 4772 (38 A D 2d 702), entered on January 31, 1972, are recalled and vacated, and the following substituted therefor. Order, Supreme Court, New York County entered August 11, 1971, denying motion to dismiss the complaint by reason of forum non conveniens, unanimously reversed, on the law, and the motion remanded to Special Term, Part I, New York County, for the calendar of May 15, 1972, for reconsideration on additional papers, without costs and without disbursements. Plaintiff shall serve such papers no later than May 5, 1972, with answering papers to be served within five days thereafter. When Special Term denied this motion, the applicable law on this subject was as set forth in Silver v. Great Amer. Ins. Co. (35 A D 2d 317). Plaintiff-respondent, relying on the law as so stated, based its opposition to dismissal solely on its residence in New York, and that factor was sufficient to defeat the motion. We reversed on the basis of Silver, as that decision had been reversed in the interim by the Court of Appeals (29 N Y 2d 356), that court having changed the prior existent law so that retention of such a case here becomes a matter of discretion (29 N Y 2d 356, 363). Plaintiff claims that, if given the opportunity, it will submit to Special Term sufficient to justify exercise of discretion to retain the case in New York. Plaintiff should have the opportunity to develop such a record. Plaintiff shall serve such papers no later than May 5, 1972, with answering papers to be served within five days thereafter. Concur — Markevich, J. P., Murphy, McNally, Tilzer and Capozzoli, JJ.