Continental Insurance v. AMAX Inc.

192 A.D.2d 391, 596 N.Y.S.2d 370

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1993
• Status: Published

Opinion

—Order, Supreme Court, New York County (Peter Tom, J.), entered August 31, 1992, which, inter alia, granted defendant AMAX’s motion to dismiss the action on the grounds of forum non conveniens, and order, same court and Justice, entered October 29, 1992, which denied plaintiff’s motion for renewal, unanimously affirmed, without costs.

Notwithstanding the parties’ presence in New York and their execution here of the insurance contracts in issue, it was not an improvident exercise of the IAS Court’s discretion to dismiss this declaratory judgment action on forum non conveniens grounds, where the underlying dispute as to whether the policies cover certain claims for pollution and toxic waste at various sites will require site-specific proof concerning, inter alia, the origin of the emissions giving rise to each claim (see, Employers Ins. v UniDynamics Corp., 183 AD2d 657, lv denied 80 NY2d 757; Avnet, Inc. v Aetna Cas. & Sur. Co., 160 AD2d 463). Since plaintiff commenced this action at a time when negotiations for settlement of these claims were taking place, we afford plaintiff no benefit from having commenced this action before defendant AMAX commenced its similar Colorado action. Concur — Murphy, P. J., Ellerin, Wallach and Asch, JJ.