Marco v. National Airlines, Inc. , 228 N.Y.S.2d 488 ( 1962 )

Samuel M. Gold, J.

The defendants National Airlines, Inc., and Delta Air Lines, Inc., move for dismissal of the complaint, on the ground that the court should refuse to entertain jurisdiction, and, in the alternative, for dismissal, pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice, of the first cause of action, and, pursuant to rule 107, of the fourth cause of action asserted on behalf of the plaintiff Pedro R. Marco, upon the ground that he does not have a cause of action. The codefendants join in the application for such relief.

It appears that one of the plaintiffs, and perhaps both of them, are to be found in the State of California, where all of the defendants are available for the service of process. It further appears that several actions are pending in other jurisdictions— one in the State of California, and one in the State of New Jersey, which was instituted by a second son of the deceased. The causes of action and the subject matter therein involved have no contacts with this State.

In all the circumstances and in the exercise of discretion, the court declines to entertain jurisdiction, and grants the motion accordingly, upon the condition that plaintiffs institute action in the State of California or in any other State, at their election, where an action is already pending, by the maintenance of a separate action, or by intervention, and that this be accomplished within three months from service of a copy of the order to be entered, and upon the further condition that the defendants’ reliance on any Statute of Limitations and other defense, if any, will be urged upon the basis of the time when this action was commenced.

The main motion is granted accordingly, and it is otherwise denied.

If defendants fail to consent to the condition imposed upon them, the main motion will be deemed denied and the application for relief sought in the alternative may be renewed.