Ortalano v. Yu He , 28 N.Y.S.3d 315 ( 2016 )

Ortalano v Yu He (2016 NY Slip Op 02905)

Ortalano v Yu He

2016 NY Slip Op 02905

Decided on April 14, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 14, 2016
Mazzarelli, J.P., Acosta, Moskowitz, Gische, Webber, JJ.

823 23278/14

[*1]Diane Ortalano, et al., Plaintiffs-Appellants,

v

Yu He, et al., Defendants-Respondents.

Raneri, Light, Sarro & O'Dell, PLLC, White Plains (Kevin D. O'Dell of counsel), for appellants.

Law Offices of John Trop, Yonkers (David Holmes of counsel), for respondents.

Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered December 22, 2014, which conditionally granted defendants' motion to dismiss the complaint pursuant to CPLR 327(a), unanimously affirmed, without costs.

Plaintiffs, Pennsylvania residents, commenced this action in Bronx County against defendants, New Jersey residents, for alleged injuries arising out of a motor vehicle accident in Orange County, New York. Supreme Court providently exercised its discretion in dismissing the complaint based upon the doctrine of forum non conveniens (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479 [1984], cert denied 469 US 1108 [1985]). Defendants established that the only link between plaintiffs' lawsuit and New York State was the accident's occurrence here. This "adventitious circumstance" (Martin v Mieth, 35 NY2d 414, 418 [1974]), does not suffice to provide the substantial nexus required to warrant the retention of jurisdiction in New York State (see Fajardo v Alejandro, 126 AD3d 644 [1st Dept 2015]; Economos v Zizikas, 18 AD3d 392, 394 [1st Dept 2005]).

It is noted that defendants consented to the conditions imposed by Supreme Court of accepting service of process in the alternative forum of New Jersey and tolling the statute of limitations in that state.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 14, 2016

CLERK