Opinion
6356 6357 Index 150400/15
04-24-2018
Louis BACON, Plaintiff–Appellant, v. Peter NYGARD, et al., Defendants–Respondents, Does 1–20, Defendants.
Sidley Austin LLP, New York (Eamon P. Joyce of counsel), for appellant. Kirkland & Ellis LLP, New York (Aaron H. Marks of counsel), for respondents.
Sidley Austin LLP, New York (Eamon P. Joyce of counsel), for appellant.
Kirkland & Ellis LLP, New York (Aaron H. Marks of counsel), for respondents.
Sweeny, J.P., Richter, Webber, Gesmer, Moulton, JJ.
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered August 10, 2016, which granted defendants-respondents' motion to dismiss the complaint pursuant to CPLR 327(a), unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, and the motion denied. Appeal from order, same court and Justice, entered December 8, 2016, which denied plaintiff's motion to renew, unanimously dismissed, without costs, as academic.
Defendants did not meet their "heavy burden" of establishing that the balance of the forum non conveniens factors points "strongly in [their] favor" ( Elmaliach v. Bank of China Ltd., 110 A.D.3d 192, 208, 971 N.Y.S.2d 504 [1st Dept. 2013] ; see also Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478, 478 N.Y.S.2d 597, 467 N.E.2d 245 [1984], cert denied 469 U.S. 1108, 105 S.Ct. 783, 83 L.Ed.2d 778 [1985] ).
It is true that the alleged defamation related to events occurring in the Bahamas, and that some of the nonparty witnesses and documents are likely to be located in the Bahamas. However, this is not dispositive (see Mionis v. Bank Julius Baer & Co., Ltd., 9 A.D.3d 280, 282, 780 N.Y.S.2d 323 [1st Dept. 2004] ; Amlon Metals, Inc. v. Liu, 292 A.D.2d 163, 164, 738 N.Y.S.2d 198 [1st Dept. 2002] ).
Plaintiff is a New York resident. While also not dispositive, this is generally "the most significant factor in the equation" ( Sweeney v. Hertz Corp., 250 A.D.2d 385, 386, 672 N.Y.S.2d 342 [1st Dept. 1998] [internal quotation marks omitted] ).
In addition, only one of the defendants is a resident of the proposed alternative forum (the Bahamas), and all of the defendants have substantial connections to New York (see Aon Risk Servs. v. Cusack, 34 Misc.3d 1234[A], 2012 WL 687914, *5–6 [Sup. Ct., N.Y. County 2012], affd 102 A.D.3d 461, 958 N.Y.S.2d 114 [1st Dept. 2013] ). For example, Nygard owns an apartment here; Nygard, Inc. has its principal place of business here (see Wittich v. Wittich, 210 A.D.2d 138, 139, 620 N.Y.S.2d 351 [1st Dept. 1994] ); and although defendants claim that Nygard International Partnership's principal place of business is in Canada, its website identifies New York as its "World Headquarters."
Because defendants have a substantial presence in New York, as well as "ample resources," it would not be a hardship for them to litigate here (see Mionis, 9 A.D.3d at 282, 780 N.Y.S.2d 323 ).
The burden on the New York courts is also minimal. There is no need to translate documents or witness testimony from a foreign language. Plus, defendants effectively conceded that New York law applies by relying on it in their prior motion to dismiss and in their counterclaims (see AIG Trading Corp. v. Valero Gas Mktg., L.P., 254 A.D.2d 117, 118, 679 N.Y.S.2d 587 [1st Dept. 1998] ).
By contrast, plaintiff would suffer hardship if required to litigate in the Bahamas, which has no jury trial right and no mechanism to obtain pre-trial deposition testimony from Bahamian witnesses (see Wilson v. Dantas, 128 A.D.3d 176, 187–188, 9 N.Y.S.3d 187 [1st Dept. 2015], affd 29 N.Y.3d 1051, 58 N.Y.S.3d 286, 80 N.E.3d 1032 [2017] ; Gyenes v. Zionist Org. of Am., 169 A.D.2d 451, 452, 564 N.Y.S.2d 155 [1st Dept. 1991] ; Republic of Lebanon v. Sotheby's, 167 A.D.2d 142, 145, 561 N.Y.S.2d 566 [1st Dept. 1990] ).
The fact that defendants waited fourteen months before bringing the instant motion, until after discovery began, their prior motion to partially dismiss the complaint was granted and affirmed on appeal, and plaintiff's motion to dismiss their counterclaims was granted, also counsels against dismissal (see Creditanstalt Inv. Bank AG v. Chadbourne & Parke LLP, 14 A.D.3d 414, 415, 788 N.Y.S.2d 104 [1st Dept. 2005] ; Bock v. Rockwell Mfg. Co., 151 A.D.2d 629, 631, 543 N.Y.S.2d 89 [2d Dept. 1989] ; Corines v. Dobson, 135 A.D.2d 390, 392–393, 521 N.Y.S.2d 686 [1st Dept. 1987] ; Confeccoes Wolens, S.A. v. Shutzer Indus., 65 A.D.2d 710, 711, 410 N.Y.S.2d 95 [1st Dept. 1978] ). The parties have since exchanged several thousand pages of documents and completed five depositions.
The fact that there are currently twelve related actions pending in the Bahamas cuts the other way (see Citigroup Global Mkts., Inc. v. Metals Holding Corp., 45 A.D.3d 361, 362, 845 N.Y.S.2d 282 [1st Dept. 2007] ; Millicom Intl. Cellular S.A. v. Simon, 247 A.D.2d 223, 668 N.Y.S.2d 591 [1st Dept. 1998] ). However, only one of these involves any of the instant defendants, and it is not for defamation and was instituted after the instant action.
Because we reverse the grant of defendants' motion to dismiss, we need not reach plaintiff's motion to renew.