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Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: June 6, 2021

First Department Upholds Forum Non Conveniens Dismissal

On May 27, 2021, the First Department issued a decision in EPK Brand, Inc. v. Leret, 2021 NY Slip Op. 03374, upholding a forum non conveniens dismissal, explaining:

Supreme Court did not improvidently exercise its discretion in dismissing the complaint on forum non conveniens grounds. The factors considered by Supreme Court were the burden on New York courts, the need to translate documents, the need for interpretation of foreign law, and the existence of prior proceedings and the location of witnesses and documents in Colombia. Moreover, the court dismissed the action pursuant to proper conditions which allows plaintiff to file its suit in Colombia with minimal practical and legal disruption.

Plaintiff’s causes of action for fraud, tortious interference, and conspiracy lack a substantial nexus with New York. Plaintiff is a Colombian corporation, not a New York resident. The alleged injury to plaintiff was suffered in Colombia, and that jurisdiction has an interest in adjudicating a matter involving harm to a Colombian corporation, an interest which New York lacks. Colombian law applies as well, and while not dispositive, Colombia is an alternative forum, and defendants have already consented to jurisdiction there. In addition, the receipt of funds in New York by certain defendants does not create a sufficient nexus to New York, or implicate New York’s interest in its banking system.

Furthermore, the court properly addressed the forum non conveniens issue without first determining the issue of personal jurisdiction over all defendants, given the burdensome inquiry involved in determining personal jurisdiction under these circumstances, and the balance of the forum non conveniens considerations.

(Internal citations omitted).

Disputes regarding commercial contracts involving out-of-state and international parties end up being heard in New York courts. Even if the court has the power to assert jurisdiction of the parties, it can, under the forum non conveniens doctrine discussed above, dismiss the dispute so it can be heard in a forum that is more convenient for the parties. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client face a situation where you are unsure whether New York is the appropriate forum in which a dispute should be heard.

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