Yoshida Printing Co. v. Aiba

213 A.D.2d 275, 624 N.Y.S.2d 128, 1995 N.Y. App. Div. LEXIS 2964

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 1995
• Status: Published

Opinion

—Order, Supreme Court, New York County (Leland DeGrasse, J.), entered February 10, 1994, which denied defendant’s motion to dismiss the complaint pursuant to CPLR 327, and order of said court and Justice, entered April 11, 1994, which denied defendant’s motion to, inter alia, renew, unanimously affirmed, with costs.

Defendant failed to meet the heavy burden of demonstrating that plaintiffs selection of New York is not in the interest of substantial justice (CPLR 327; Anagnostou v Stifel, 204 AD2d 61, citing Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65, 74). Neither the fact that plaintiff is a Japanese corporation, whose witnesses may speak Japanese, nor the potential necessity of applying Japanese law, renders New York an inconvenient forum (see, supra, at 62; Gyenes v Zionist Org., 169 AD2d 451; Kronengold v Hilton Hotels Corp., 166 AD2d 325). Any need to translate documents into English does not warrant a contrary result (Gyenes v Zionist Org., supra). Moreover, defendant failed to make any showing with respect to the materiality of the testimony of certain potential witnesses (Neville v Anglo Am. Mgt. Corp., 191 AD2d 240, 242; Anagnostou v Stifel, supra), and could not demonstrate that their testimony would be unavailable here. Most of the named witnesses are employees of plaintiff whose availability has been offered at no expense to defendant (see, Munoz v American Pac. Min., 176 AD2d 624, 625; Kronengold v Hilton Hotels Corp., supra). Further, while defendant’s residence here is not a controlling factor (CPLR 327), it is an important one (see, Silver v Great Am. Ins. Co., 29 NY2d 356, 361). Accordingly, it was not an improvident exercise of discretion for the IAS Court to deny defendant’s forum non conveniens motion. The motion to renew was properly denied as defendant failed to demonstrate that the newly proffered information was unavailable at the time the initial motion was made (see, Mangine v Keller, 182 AD2d 476). Concur—Sullivan, J. P., Wallach, Asch, Nardelli and Williams, JJ.