Opinion
July 13, 1978
Judgment, Supreme Court, New York County, entered December 7, 1977, unanimously modified, on the law and the facts and in the exercise of discretion, to amend that judgment to impose conditions as hereinafter set forth, and otherwise affirmed, without costs and without disbursements. Appeal from order of the same court, entered December 2, 1977, dismissed as subsumed in the judgment entered thereon, without costs and without disbursements. We agree with Special Term that all the issues relate to happenings in South Africa, where by far the greater number of necessary witnesses are to be found, and that this State is an inconvenient forum. It would, in the circumstances, constitute an unnecessary burden on our courts to be compelled to apply foreign law, as the case demands, in our courts. However, the interest of justice requires that conditions should be imposed for dismissal here so that plaintiff may not find itself without any forum at all in which to prosecute its claim. It is to be made a condition of the judgment of dismissal that, within 90 days of service of the order entered hereon, defendants-respondents shall stipulate to waive any objection to jurisdiction in South Africa concerning the subject matter of this suit, to accept service of process in that jurisdiction, to waive objection to compulsory process requiring appearance of witnesses and production of documents, to consent to full faith and credit for any judgment obtained in South Africa, and to waive any defense of limitation of time, statutory or otherwise, provided however that the suit in South Africa be initiated within 60 days from the date of service of the stipulation upon counsel for plaintiff. Should defendants-respondents not comply with these conditions, the judgment on appeal is reversed, and the motion to dismiss for forum non conveniens denied, without costs.
Concur — Murphy, P.J., Birns, Fein, Markewich and Yesawich, JJ.