Opinion
31512/10
08-24-2011
Theresa Danza, Plaintiff, v. Costco Wholesale Corporation, Defendant.
Plaintiff : John C. DiGiovanna, Esq. St James NY Defendant : Gallagher Walker Mineola NY
Plaintiff :
John C. DiGiovanna, Esq.
St James NY
Defendant :
Gallagher Walker
Mineola NY
Arthur M. Schack, J.
Papers numbered 1 to 3 were read on this motion:Papers Numbered:
Notice of Motion/Exhibits1
Affirmation in Opposition2
Reply Affirmation3
Defendant COSTCO WHOLESALE CORPORATION (COSTCO) moves for an order, pursuant to CPLR Rule 327 (a), to dismiss the instant action because of forum non conveniens. Plaintiff THERESA DANZA (DANZA), a resident of Brooklyn, alleges that she sustained personal injuries from a slip and fall in the COSTCO store at 14575 Biscayne Boulevard, North Miami, Florida, on January 24, 2009.
COSTCO claims New York is not the proper forum for plaintiff's action because: the accident and all related events took place in Florida; virtually every witness lives in Florida and it would inconvenient for these witnesses to have to travel to New York to testify; COSTCO would be prejudiced by a trial in New York because COSTCO cannot compel out-of-state witnesses to testify at trial; Florida law applies to all claims against COSTCO; Florida is a better forum for this lawsuit because a Florida court is better equipped to deal with discovery and depositions and better able to apply Florida law; trying this case in New York would place a substantial burden on this Court by forcing it to oversee extensive out-of-state discovery and forcing the Court to apply Florida law; and, plaintiff's residence in New York does not outweigh the numerous contacts that the instant case has with Florida.
Plaintiff opposes the motion, claiming that the grounds submitted by defendant are not factually correct, because: plaintiff had substantial medical treatment in New York; defendant's liability witnesses are all COSTCO's employees, who do not need to be subpoenaed; with respect to two nonparty medical witnesses in Florida, one a hospital and the other a chiropractor, plaintiff's counsel would consent to placing the Florida hospital records into evidence and COSTCO, a company with billions in annual revenues, could afford to fly the chiropractor to Brooklyn; this Court is capable of applying, if necessary, Florida law; the statute of limitations in Florida for this type of personal injury case is two years and has expired; and, it is more affordable for defendant COSTCO, which derives substantial income from its New York stores, to fly witnesses to New York than for the 74-year-old retiree plaintiff to have to fly herself and several doctors from New York to Florida.
The Court, in balancing the interests of plaintiff DANZA against financial
"goliath" defendant COSTCO, holds that it would not be in the interest of substantial justice to try this action in Florida instead of New York. Plaintiff chose New York as the forum. The Court will not disturb plaintiff's choice of forum. Therefore, defendant's motion to dismiss the instant action for forum non conveniens is denied.
Background
Plaintiff alleges that she was injured on January 24, 2009 after falling on the floor at the COSTCO store in North Miami, Florida, because of the existence of a slippery foreign substance on the floor. Plaintiff and her prior counsel had a recorded telephone interview with a COSTCO Senior Claim Representative, on December 9, 2009 [exhibit C of motion]. Plaintiff told defendant's representative that after she finished paying for her purchases "and I was walking out and by the cafeteria . . . I didn't know what hit me. I just went flying. I went up in the air and down I went. It seems I slipped on a slurpee that was all over the floor." (P. 2 of exhibit C). Then she said that several COSTCO workers and another shopper witnessed the accident and the slurpee. (P. 3 of exhibit C).
Further, plaintiff in the telephone interview discussed her alleged injuries. In her affidavit in opposition to the instant motion, plaintiff alleges trauma to her cervical spine and both shoulders. Four days subsequent to her accident, plaintiff went to the emergency room at Avenutura Hospital, in Florida. Then, she was treated for several months by a chiropractor in Florida. Plaintiff returned to New York in April 2009 and received treatment in New York from various medical and chiropractic providers. She states, at p. 4 of her affidavit in opposition to the instant motion, that "I do not intend to be traveling to Florida in winter anymore as traveling is too painful and stressful for me
. . . it is physically too difficult for me to travel and it would be impossible and cause me severe stress if my case had to be litigated in Florida where I would have to appear for depositions and trial proceedings." Moreover, at p. 4 of her affidavit in opposition to the instant motion, she claims "[t]here would be no way for me to be able to pay traveling expenses and fees for my treating Doctors . . . to appear in Court in Florida and testify on my behalf for the injuries sustained in my January 2009 accident."
Counsel for defendant COSTCO alleges, in ¶ 19 of his affirmation in support of the motion, that "COSTCO would be prejudiced if this trial took place in New York . . . First the expense involved in locating and deposing witnesses would be enormous." With respect to COSTCO'S finances, COSTCO's 2010 Form 10-K filed with the United States Securities and Exchange Commission discloses, at p. 45, that for the fiscal year ending on August 29, 2010, defendant COSTCO had: total revenue of almost $78 billion; before tax income of more than $2 billion; and, net income after taxes of more than $1.3 billion. Further, at p. 19 of COSTCO's proxy statement for its January 27, 2011 annual meeting, defendant COSTCO disclosed total compensation paid in 2010 for its ranking corporate officers, including: $3,529,434 for James D. Sinegal, Chief Executive Officer; $3,525,378 for Jeffrey H. Brotman, Chairman of the Board; and, $2,264,059 for W. Craig Jelinek, President and Chief Operating Officer. Moreover, in Note 11, "Commitments and Contingencies," to the 2010 Form 10-K filing, at p. 83, signed on October 15, 2010 by Richard A. Galanati, Executive Vice President and Chief Financial Officer, as well as members of the Board of Directors, including top corporate officers Mr. Sinegal, Mr. Brotman and Mr. Jelinek, defendant COSTCO states "[t]he Company [COSTCO] does not believe that any pending claim, proceeding or litigation, whether alone or in the aggregate, will have a material adverse effect on the Company's financial position."
Discussion
CPLR Rule 327, "Inconvenient forum" states:
(a) When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action.The Court of Appeals, in Islamic Republic of Iran v Pahlavi (62 NY2d 474 [1984]), at 478, instructed that "[t]he application of the doctrine of forum non conveniens is a matter of discretion to be exercised by the trial court and the Appellate Division."
Further, the Pahlavi Court held, at 478-479, "[t]he common law doctrine of forum non conveniens, also articulated in CPLR 327, permits a court to stay or dismiss such actions where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere."
"The burden rests upon the defendant challenging the forum to demonstrate relevant private or public interest factors which militate against accepting the litigation." (Islamic Republic of Iran v Pahlavi at 479). (See Jackam v Nature's Bounty, Inc., 70 AD3d 1000, 1001 [2d Dept 2010]). "New York residents are presumptively entitled to utilize their judicial system for dispute resolution." (Broida v Bancroft, 103 AD2d 88, 92 [2d Dept 1984]). "But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." (Gulf Oil Corp. v Gilbert, 330 US 501, 508 [1947]). (See Xiu Zhang Yin v Bennett, 78 AD3d 936, 938 [2d Dept 2010]; Barocas v Gorenstein, 89 AD2d 847, 848 [2d Dept 1993]; Moschera v Muraca, 148 AD2d 591 [2d Dept 1989]).
Moreover, the Pahlavi Court, at 479, identified various factors that must be balanced and considered "in the exercise of its sound discretion whether to retain jurisdiction or not" and instructed:
Among the factors to be considered are the burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum in which plaintiff may bring suit . . . The court may also consider that both parties to the action are nonresidents . . . and that the transaction out of which the cause of action arose occurred primarily in a foreign jurisdiction . . . No one factor is controlling . . . The great advantage of the rule of forum non conveniens is its flexibility based upon the facts and circumstances of each case . . . The rule rests upon justice, fairness and convenience and we have held that when the court takes these various factors into account in making its decision, there has been no abuse of discretion reviewable by this court. [Emphasis added](See Banco Ambrosiano v Artoc Bank and Trust, 62 NY2d 65 [1984]; Silver v Great American Insurance Company, 29 NY2d 356 [1972]). Two years ago, in Prestige Brands, Inc. v Hogan & Hartson, LLP (65 AD3d 1028 [2d Dept 2009]), the Court at 1028, held:
Among the factors the court must weigh are the residency of the parties, the potential hardship to proposed witnesses, the availability of an alternative forum, the situs of the underlying action, and the burden which will be imposed upon the New York courts, with no one single factor controlling'(Wentzel v Allen Mach., 277 AD2d 446, 447 [2d Dept 2000]; see Economos v Zizikas, 18 AD3d 392, 394 [1d Dept 2005]; Shin-Etsu Chem. Co., Ltd. v ICICI Bank Ltd., 9 AD3d 171, 175 [1d Dept 2004]). [Emphasis added](See Koskar v Ford Motor Company, 84 AD3d 1317 [2d Dept 2011]; Xiu Zhang Yin v Bennett, 78 AD3d 936 [2d Dept 2010]; Salzstein v Salzstein, 70 AD3d 806 [2d Dept 2010]; Turay v Beam Bros. Trucking, Inc., 61 AD3d 964 [2d Dept 2000]).
In the instant action, plaintiff is a New York resident. While defendant COSTCO is not a New York resident it has a nexus to New York, with many of its stores located in New York, including one in Kings County.
It is a greater hardship for plaintiff to have to try her case in Florida than for defendant COSTCO to have to defend itself in New York. The only witnesses to the accident, besides plaintiff, are COSTCO employees. It is more inconvenient for plaintiff and her medical witnesses to fly to Florida for trial than for defendant COSTCO to fly its employee witnesses to New York from Florida. As mentioned above, defendant admitted in its 2010 Form 10-K filing, at p. 85, to the Securities and Exchange Commission that "[t]he Company does not believe that any pending claim, proceeding or litigation, whether alone or in the aggregate, will have a material adverse effect on the Company's financial position."
If any liability is found against defendant COSTCO, plaintiff's medical and chiropractic providers, who are potential witnesses, are located in New York. COSTCO can certainly retain Independent Medical Examination (IME) physicians in New York. Moreover, plaintiff's counsel has consented to placing plaintiff's Florida emergency room records into evidence.
Plaintiff, in Xiu Zhang Yin v Bennett (78 AD3d 936 [2d Dept 2010]), sustained injuries in an Illinois automobile accident. Defendants included plaintiff's wife, a New York resident, Bill Bennett, an Illinois truck driver, and his employer, Chuck Brauer Trucking, Inc. (CBT), an Illinois corporation. Plaintiff Yin, similar to plaintiff DANZA in the instant action, received post accident medical treatment in New York from several health care providers. CBT moved, pursuant to CPLR Rule 327, for forum non conveniens dismissal. Plaintiff Yin claimed hardship if the case was tried in Illinois. Defendant CBT was granted forum non conveniens dismissal in Supreme Court, Queens County. However, the Appellate Division, Second Department reversed, holding, at 938, "CBT failed to show that it would be inconvenienced by New York litigation any more than the plaintiff and the defendant Chun Hong Du would be inconvenienced by litigation in Illinois, or that retention of this case would pose an unacceptable burden on the New York courts. Under these circumstances, the plaintiff's choice of forum should not have been disturbed."
Plaintiff, a Vermont resident, in Brodherson v Ponte & Sons (209 AD2d 276 [1d Dept 1994]), claimed injuries as a result of a two-car accident in Manhattan with defendants driver and owner, both New Jersey residents. Defendants moved to dismiss the action, pursuant to CPLR Rule 327, because they resided in New Jersey and alleged a lack of nexus with New York. The Brodherson Court held, at 277, "defendants have failed to demonstrate that New Jersey is a more appropriate forum as the accident occurred in New York [and] plaintiff received extensive medical care in New York . . . New York, therefore, has a substantial nexus to this action."
In O'Connor v Bonanza International, Inc. (129 AD2d 569 [2d Dept 1987]), the Court affirmed the denial of defendant's motion to dismiss for forum non conveniens in Supreme Court, Westchester County. Plaintiff O'Connor, a New York resident, was injured in South Carolina. Similar to plaintiff DANZA in the instant action, plaintiff O'Connor had most of her medical treatment in New York. The O'Connor Court, at 570, held, "[t]he defendant failed to show that it would be any more inconvenienced by New York litigation than the plaintiffs would be by South Carolina litigation."
With respect to the burden on the Court to try the instant action, the Court fails to find any. New York courts are able, if necessary, to apply Florida law. "[T]he courts of New York are frequently called upon to apply the law of foreign jurisdictions and, should the necessity arise, will be fully capable." (Anagnostou v Stifel, 204 AD2d 61 [1d Dept 1994]). In the instant action, plaintiff DANZA used several medical providers in New York and is a New York resident. Thus, there is sufficient nexus with New York for New York to be an appropriate forum for the instant action. While Florida is an alternative forum, plaintiff has chosen New York as the forum and defendant COSTCO has not been persuasive in overcoming its burden to have the Court disturb plaintiff DANZA's choice.
Therefore, after considering and balancing the various factors raised by defendant COSTCO in its motion for forum non conveniens dismissal, including plaintiff DANZA's choice of New York as the forum, the Court, in the exercise of its sound discretion, finds that defendant COSTCO failed to demonstrate that New York is an inconvenient forum for the instant action.
Conclusion
Accordingly, it is
ORDERED, that the instant motion by defendant COSTCO WHOLESALE CORPORATION for an order, pursuant to CPLR Rule 327 (a), to dismiss the instant action because of forum non conveniens is denied.
This constitutes the Decision and Order of the Court.
ENTER
HON. ARTHUR M. SCHACK
J. S. C.