|Longevity Med. Supply, Inc. v 21st Century Ins. Co.|
|2019 NY Slip Op 52041(U) [66 Misc 3d 128(A)]|
|Decided on December 13, 2019|
|Appellate Term, Second Department|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|This opinion is uncorrected and will not be published in the printed Official Reports.|
The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Jennifer A. Joseph of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered December 18, 2017. The order granted the branch of defendant's motion seeking to dismiss the complaint on the ground of forum non conveniens and denied plaintiff's cross motion for summary judgment.
ORDERED that the order is modified by providing that the branch of defendant's motion seeking to dismiss the complaint on the ground of forum non conveniens is denied; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court to determine the remainder of defendant's motion.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, an order dismissing the complaint pursuant to CPLR 327, on the ground that the action should have been commenced in New Jersey, where the accident had occurred. Defendant asserted that, while the applicable insurance policy had been issued in Texas, the New Jersey courts were the proper forum for plaintiff's action, as Texas does not offer no-fault benefits. Plaintiff opposed defendant's motion and cross-moved for summary judgment. By order entered December 18, 2017, the Civil Court granted the branch of defendant's motion seeking to dismiss the complaint pursuant to CPLR 327, without reaching the remaining branches of defendant's motion, and denied plaintiff's cross motion.
Under the doctrine of forum non conveniens, a court may dismiss an action when, although it may have jurisdiction, it determines that, "in the interest of substantial justice the action should be heard in another forum" (CPLR 327 [a]). The doctrine is flexible and requires the balancing of many factors, such as "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 Xiu Zhang Yin v Bennet, 78 AD3d 936 ).
In the case at bar, defendant relied upon a New Jersey police crash investigation report to demonstrate both that the underlying accident had occurred in New Jersey and that plaintiff's assignor lived in Texas, thus offering the police report to establish the truth of the matters asserted therein. However, the police report constituted inadmissible hearsay, as the report was not certified as a business record (see CPLR 4518 [a]; Gezelter v Pecora, 129 AD3d 1021 ; Hernandez v Tepan, 92 AD3d 721 ). Consequently, defendant failed to demonstrate the location of the underlying accident or the assignor's residence. In any event, we note that defendant's own exhibits—an NF-3 form, invoice for the supplies at issue, and assignment of benefits form—all stated that the assignor lived in Staten Island. Upon the record presented, we find that the Civil Court erred in determining, as to the branch of defendant's motion seeking dismissal based on forum non conveniens, that defendant's evidence had sufficiently demonstrated a lack of significant contacts to New York.
With respect to plaintiff's cross motion for summary judgment, plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law, as the proof submitted in support of its motion failed to establish either that the claim at issue had not been timely denied or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 ; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is modified by providing that the branch of defendant's motion seeking to dismiss the complaint on the ground of forum non conveniens is denied, and the matter is remitted to the Civil Court to determine the remainder of defendant's motion.
PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.