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Wienke v. Wienke

Appellate Division of the Supreme Court of New York, Fourth Department
Sep 23, 1983
96 A.D.2d 1136 (N.Y. App. Div. 1983)

Opinion

September 23, 1983

Appeal from the Supreme Court, Orleans County, Rosenbloom, J.

Present — Dillon. P.J., Boomer, Green, Moule and Schnepp, JJ.


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 A.D.2d 216, affd 48 N.Y.2d 738; cf. Sullivan v McNicholas Transfer Co., 93 A.D.2d 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, N Y Prac, § 28, p 28).


Summaries of

Wienke v. Wienke

Appellate Division of the Supreme Court of New York, Fourth Department
Sep 23, 1983
96 A.D.2d 1136 (N.Y. App. Div. 1983)
Case details for

Wienke v. Wienke

Case Details

Full title:ELWIN D. WIENKE et al., Appellants, v. CREIG E. WIENKE, Respondent

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Sep 23, 1983

Citations

96 A.D.2d 1136 (N.Y. App. Div. 1983)

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