Opinion
December 13, 1993
Appeal from the Supreme Court, Kings County (Golden, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
This action arises out of the acquisition and maintenance of real property located in Brooklyn. The parties seek the imposition of a constructive trust (see, e.g., Martin v Martin, 169 A.D.2d 821). However, based on the record before us, there are material issues of fact which militate against the awarding of summary judgment, and thus a trial is required (see, e.g., Zuckerman v City of New York, 49 N.Y.2d 557; Rotuba Extruders v Ceppos, 46 N.Y.2d 223; Greenberg v Coronet Props. Co., 167 A.D.2d 291; Midland Mtge. Corp. v 52nd St. Owners Corp., 106 A.D.2d 376). Specifically, there is a question as to which, if either, of the parties, has been unjustly enriched.
We further find that the Supreme Court did not improvidently exercise its discretion by dismissing unrelated counterclaims. Substantial justice warrants that the counterclaims be heard before a Taiwanese tribunal (see, Troni v Banca Popolare Di Milano, 129 A.D.2d 502). While the defendant resides in New York and the plaintiffs brought this action in New York, residence is only one factor to be considered (see, Bock v Rockwell Mfg. Co., 151 A.D.2d 629). The difficulties for the plaintiffs of litigating the fifth and sixth counterclaims in this State, the fact that a Taiwanese corporation is a necessary party, the burden on New York courts in entertaining those counterclaims, and the availability of another, more convenient, forum in Taiwan are factors requiring the dismissal of the fifth and sixth counterclaims (see, Islamic Republic v Pahlavi, 62 N.Y.2d 474, cert denied 469 U.S. 1108; Banco Ambrosiano v Artoc Bank Trust, 62 N.Y.2d 65; Irrigation Ind. Dev. Corp. v Indag S.A., 37 N.Y.2d 522; Varkonyi v S.A. Empresa De Viacao Airea Rio Grandense [Varig], 22 N.Y.2d 333; Waterways Ltd. v Barclays Bank PLC, 174 A.D.2d 324; Corines v Dobson, 135 A.D.2d 390; Troni v Banco Popolare Di Milano, supra). Sullivan, J.P., O'Brien, Ritter and Joy, JJ., concur.