Belachew v. Michael

453 N.E.2d 1243, 59 N.Y.2d 1004, 466 N.Y.S.2d 954, 1983 N.Y. LEXIS 3278

• Court: New York Court of Appeals
• Decided: July 7, 1983
• Status: Published

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Whether to dismiss an action on the ground of forum non conveniens is a matter of discretion, and the Appellate Division’s exercise of that discretion will not be interfered with by this court unless there has been an abuse of discretion, or, in exercising its discretion, the court has failed to take into account all the various factors entitled to consideration (Irrigation & Ind. Dev. Corp. v Indag S.A., 37 NY2d 522). The Appellate Division properly took note of the availability of a suitable forum in Pennsylvania, and the hardship to the moving defendants which would be presented by the unavailability of defendant Bucher and the Pennsylvania Department of Transportation, possible joint tort-feasors, in a New York action (see Varkonyi v S. A. Empresa De Viacao Airea Rio Grandense [Varig], 22 NY2d 333). That court also noted extensive medical treatment of one plaintiff in Pennsylvania. Thus, despite the residency in New York of the plaintiffs and of various medical witnesses, and the. agreement of the corporate defendant, amenable to suit in New York, to hold the Pennsylvania Department of Transportation harmless with regard to injuries arising from the road construction involved herein, the Appellate Division did not abuse its discretion in dismissing this action on the ground of forum non conveniens.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons concur.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.