Wienke v. Wienke

96 A.D.2d 1136, 467 N.Y.S.2d 449, 1983 N.Y. App. Div. LEXIS 19811

Opinion

Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: In this negligence action arising out of a two-car accident in Ashland, Massachusetts, Special Term properly exercised its discretion in dismissing the complaint on the ground of forum non conveniens (CPLR 327). Both cars were registered in Massachusetts and operated by Massachusetts residents. The only nexus between New York State and this case is plaintiffs’ residence. Furthermore, defendant is unable to implead the other driver to seek an apportionment of responsibility for plaintiffs’ damages, since the other driver is not a party to this action and subject to the jurisdiction of New York State (see Epstein v Sirivejkul, 64 AD2d 216, affd 48 NY2d 738; cf. Sullivan v McNicholas Transfer Co., 93 AD2d 527). Special Term, however, should have conditioned the order of dismissal upon defendant’s stipulation to accept service of process in Massachusetts and to appear in an action commenced there for the same relief demanded in the complaint here (see Siegel, NY Prac, § 28, p 28). (Appeal from order of Supreme Court, Orleans County, Rosenbloom, J. — dismiss complaint.) Present — Dillon. P. J., Boomer, Green, Moule and Schnepp, JJ.