Opinion
December 30, 1993
Appeal from the Supreme Court, New York County (Carol H. Arber, J.).
Plaintiff commenced this declaratory judgment action to determine its obligation to indemnify and defend respondents under two insurance policies in an action pending in Colorado, and to determine the obligation of cross-appellants. The court did not abuse its discretion in dismissing the action on the grounds of forum non conveniens based upon a balancing of the appropriate factors (National Bank Trust Co. v Banco De Vizcaya, 72 N.Y.2d 1005, 1007, cert denied 489 U.S. 1067), including sites of the transaction out of which the litigation arose, the residence of the parties, the potential hardship to the defendant, the burden on New York courts, the availability of an alternate forum (Islamic Republic v Pahlavi, 62 N.Y.2d 474, 479), and the location of a majority of witnesses outside the State (Evdokias v Oppenheimer, 123 A.D.2d 598). Defendant has sustained its burden of showing that the action should be heard in Minnesota (see, Bader Bader v Ford, 66 A.D.2d 642, 648, appeal dismissed 48 N.Y.2d 649), since the claims arise out of activities in Minnesota, including procurement of the policies, location of the operating companies and the insurance broker, and payment of the premiums, and have no substantial nexus with New York. The witnesses and documentation are also located in Minnesota (see, Avnet, Inc. v Aetna Cas. Sur. Co., 160 A.D.2d 463) and Minnesota law should govern (see, ACLI Intl. v E.D. F. Man [Coffee], 76 A.D.2d 635, 643).
Nor did the court abuse its discretion in dismissing the action pursuant to CPLR 3211 (a) (4) (Whitney v Whitney, 57 N.Y.2d 731) even though this action was commenced first, as the Minnesota action was commenced reasonably close in time and offers more than the action herein (see, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:14, at 24).
Concur — Rosenberger, J.P., Ellerin, Asch and Rubin, JJ.