Summary
In Ziska, the plaintiffs sought damages for, among other things: (1) the defendants' failure to offer the plaintiffs a loan modification; (2) the defendants' lack of standing to demand or receive mortgage payments from the plaintiffs for their failure to own the original note and mortgage; (3) breach of contract for securitizing the plaintiffs' notes and mortgages; and (4) fraud for collecting monthly mortgage payments under false pretenses because the defendants did not have physical possession of the real property documents.
Summary of this case from Hudacko v. Bank of Am., N.A.Opinion
2012-10-23
James A. ZISKA, et al., Plaintiffs–Appellants, v. BANK OF AMERICA, N.A., et al., Defendants–Respondents.
Law Office of Carl E. Person, New York (Carl E. Person of counsel), for appellants. Bryan Cave LLP, New York (Suzanne M. Berger of counsel), for respondents.
Law Office of Carl E. Person, New York (Carl E. Person of counsel), for appellants. Bryan Cave LLP, New York (Suzanne M. Berger of counsel), for respondents.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered on or about April 24, 2012, which, in this action involving allegedly fraudulent lending and loan modification practices, granted defendants' motion to dismiss the action on the ground of forum non conveniens, without prejudice, unanimously affirmed, without costs.
The court providently exercised its discretion in dismissing the action, given that plaintiffs' tort and breach of contract claims are based on real property located in California, the claims lack a substantial nexus to New York, California law governs the claims, and the documentary evidence and witnesses are primarily located in California and states other than New York ( see Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 479, 478 N.Y.S.2d 597, 467 N.E.2d 245 [1984],cert. denied469 U.S. 1108, 105 S.Ct. 783 [1985] ). That defendants may have business locations in New York, and that plaintiffs' note and deed of trust were eventually securitized by a New York trust, are insufficient to create a “factual connection between New York and the dispute” ( Shin–Etsu Chem. Co., Ltd. v. ICICI Bank Ltd., 9 A.D.3d 171, 176, 777 N.Y.S.2d 69 [1st Dept. 2004];see Avery v. Pfizer, Inc., 68 A.D.3d 633, 634, 891 N.Y.S.2d 369 [1st Dept. 2009] ).
We have considered plaintiffs' remaining arguments and find them unavailing.