Opinion
24689/2004.
Decided March 16, 2006.
Plaintiffs Wasime Lindsay ("Lindsay") and Douglas Brown ("Brown"), individually and as the administrator of the estate of Merlin McKenzie a/k/a Merlin Plummer, (collectively "plaintiffs") brought separate actions in New York State Supreme Court against defendants Toyota Motor Sales U.S.A., Inc. ("TMS"), Toyota Motor Corporation ("TMC"), Toyota Motor Corporate Services of North America, Inc. ("TMCSNA"), Toyota Motor North America, Inc. ("TMNA"), Toyota Technical Center ("TTC"), Higashi-Fugi Technical Center ("HFTC"), Toyota Technical Center U.S.A. ("TTCUSA"), and Yvette Hamilton ("Hamilton") (collectively "defendants") for damages resulting from a car accident in Georgia. These two actions, which were removed to federal court based on diversity jurisdiction, have been remanded back to New York State Supreme Court. Toyota Defendants now move for an order dismissing the two actions against them for forum non conveniens, pursuant to CPLR § 317, among other grounds.
Factual and Procedural Background
These two lawsuits (Index Nos.: 24689/2004 26398/04) arise out of a serious car accident that occurred on December 23, 2002, near Savannah, Georgia. Plaintiffs were all passengers in a 1998 Toyota 4Runner, owned by defendant Yvette Hamilton, and driven by Kesert Wallace Plummer with the alleged consent of the owner. While the specifics of the crash itself are not yet clear, the 4Runner rolled over in the accident causing serious injury to plaintiffs and the death of the driver of the 4Runner.
Plaintiffs have sued the Toyota defendants for negligence, gross negligence, breach of express and implied warranties, misrepresentation, and strict liability, all arising from alleged defects in the Toyota 4Runner. Action No. 1 plaintiffs have also sued the vehicle's owner, Yvette Hamilton, under New York's vicarious liability law for the alleged negligence of the driver in operating the vehicle. Plaintiff Brown is a resident of New York. Plaintiff Lindsay is a citizen of Jamaica, West Indies, residing in New York. Defendants TMNA, TMCSNA, and Yvette Hamilton are all citizens of New York.
As noted above, plaintiffs originally brought their actions in the Supreme Court of New York State, Bronx County, in late 2004. Shortly thereafter, TMS, a citizen of California, moved for removal of these two actions to federal court on the basis of diversity jurisdiction. In its removal motions, TMS argued that the three New York defendants-Yvette Hamilton, TMNA, and TMCSNA-were not real parties to the action, and therefore should be disregarded for diversity purposes. The Federal District rejected such arguments and remanded the two cases to New York State Supreme Court. Subsequently, the two actions were consolidated for the purpose of a joint trial. By separate motions, Toyota defendants now move for an order dismissing these two actions commenced against them for forum non conveniens, pursuant to CPLR § 317, or, alternatively, pursuant to CPLR § 3016(b), § 3211 and § 3212. This Court sua sponte consolidates these two motions for joint disposition.
Discussion
A. Motion To Dismiss Actions Based Upon the Ground of Forum Non Conveniens
The Court first examines that part of Toyota defendants' motions seeking an order dismissing the two actions against them for forum non conveniens, pursuant to CPLR § 317. The doctrine of "forum non conveniens" allows a dismissal of an action even though the court has jurisdiction over the defendant and over the subject matter. See, Silver v. Great American Ins. Co., 29 NY2d 356, 361 (1972); Stamm v. Deloitte and Touche, 202 AD2d 413, 414 (2nd Dept. 1994). The burden rests upon the defendant challenging the forum to demonstrate that private or public interests militate against litigation going forward in this State. Id. The doctrine of forum non conveniens rests upon principles of justice, fairness, and convenience. See, Islamic Republic of Iran v. Pahlavi, 62 NY2d 474, 479 (1984).
The motion is addressed to the sound discretion of the court, and its determination will not be disturbed on appeal unless the court failed to consider all of the relevant factors. See, National Bank Trust Co. v. Banco De Vizcaya, 72 NY2d 1005 (1988). Among the factors which the court must weigh when deciding a motion to dismiss on such ground are the residency of the parties, the potential hardship to proposed witnesses, the availability of an alternative forum, the situs of the underlying action, and the burden which will be imposed upon the New York courts, with no one single factor controlling. See, Islamic Republic of Iran v. Pahlavi, supra; Stamm v. Deloitte and Touche, supra.
It is well settled that a plaintiff's choice of forum should not be disturbed absent a balance of factors strongly favoring the defendants and, although the residence of a plaintiff is not the sole determining factor on a motion to dismiss on grounds of forum non conveniens, it is generally "'"the most significant factor in the equation"' [citation omitted]" Sweeney v. Hertz Corp. 250 AD2d 385 (1st Dept. 1998). See also, Cadet v. Short Line Terminal Agency, Inc., 173 AD2d 270 (1st Dept. 1991). Accordingly, where a plaintiff is a New York resident, a defendant bears the heavy burden of establishing that New York is an inappropriate forum before plaintiff's choice of forum will be disturbed. See, Homola v. Longshore Transp. Systems, Inc., 204 AD2d 1052 (4th Dept. 1994); Highgate Pictures, Inc. v. De Paul, 153 AD2d 126, 129 (1st Dept. 1990); Sullivan v. J.V. McNicholas Transfer Co., 93 AD2d 527, 529 (4th Dept. 1983).
This case is controlled by the holding in Sweeney v. Hertz Corp., 250 AD2d 385 (1st Dept. 1998), where the Appellate Division, First Department, reversed the trial court's determination to grant a dismissal of the action on the ground of forum non conveniens. Specifically, the court held that the dismissal on ground of forum non conveniens, of the action against the manufacturer and lessor of a vehicle, which was involved in a single-vehicle accident, was not warranted, even though the accident occurred in North Carolina and witnesses were residents there. The Court found the balance of factors favor keeping the action in New York, among them that plaintiffs were all New York residents, the vehicle was driven by a New York resident, who was to return the vehicle there, and the manufacturer and lessor were authorized to do business in New York. The Court reasoned that "the fact that the one-car accident occurred in North Carolina and the police and emergency personnel witnesses and the medical examiner reside there [did] not warrant dismissal on forum non conveniens grounds." Id.
This case is indistinguishable in any significant detail from the facts of Sweeney v. Hertz Corp., 250 AD2d 385 (1st Dept. 1998). In fact, like in Sweeney, supra, most of the important parties are residents of New York. For instance, plaintiffs, all New York residents, were passengers in a minivan owned by defendant Yvette Hamilton, also a New York resident, and driven by a New York resident. Defendants TMCSNA and TMNA are also New York residents. Apparently, some of the remaining defendants are authorized to do business in New York.
The only distinguishable fact from Sweeney, supra, is that such case involved a one-car accident, and this case involved a two car accident. Such fact is, however, not significant in this case, since neither plaintiffs nor movant-defendants are bringing any claims against the driver and owner of the second car involved in the accident who are presumably Georgia residents. Rather, the action is strictly based upon the alleged defects of the Toyota-4 Runner (bought from a dealer in New York and owned by the New York resident), and the alleged negligent driving of a New York resident. Thus, the activities of the second car plays no significant role in this litigation.
Given such circumstances, there has been no showing by defendants that they would be any more inconvenienced by litigation in New York than plaintiffs litigating in Georgia. Cf. Homola v. Longshore Transportation Systems, Inc., 204 AD2d 1052 (4th Dept. 1994). This Court adopts the reasoning of Sweeney, supra, in finding that "the fact that the one-car accident occurred in [Georgia] and the police and emergency personnel witnesses and the medical examiner reside there does not warrant dismissal on forum non conveniens ground," where, as explained above, the action has a significant connection to New York. Furthermore, plaintiffs have submitted affidavits from Georgia officials who investigated the accident, indicating their willingness to come to New York to testify. See Homola v. Longshore Transportation Systems, Inc., 204 AD2d 1052 (4th Dept. 1994). Since plaintiffs' choice of forum should not be disturbed absent a balance of factors strongly favoring defendants, defendants' motion must be denied on the strength of the aforementioned factors and the case of Sweeney v. Hertz Corp., 250 AD2d 385 (1st Dept. 1998).
B. Motion To Dismiss Express and Implied Warranty Claims As Time-Barred
This Court next examines that part of Toyota defendants' motion seeking to dismiss plaintiffs' causes of action against defendants for breach of express warranty and for breach of implied warranty as untimely made. The statute of limitations for breach of warranty claims is four years, measured from the tender of delivery. UCC § 2-725(1)(2); Heller v. U.S. Suzuki Motor Corp., 64 NY2d 407 (1985); City of Cohoes v. Kestner Engineers, P.C., 226 AD2d 914 (3rd Dept. 1996); Rissew v. Yamaha Motor Co., 129 AD2d 94, 99 (4th Dept 1987); Calabria v. St. Regis Corp., 124 AD2d 514, 516 (1st Dept. 1986). In this case, Toyota defendants have presented documentary evidence that the subject 1998 Toyota 4Runner was sold and delivered on February 9, 1998. The limitations period thus expired on February 9, 2002. See, Uniform Commercial Code § 2-725. The complaint, however, was not served until February 2004 and, therefore, plaintiffs' warranty causes of actions were untimely by two years.
Plaintiffs request that the doctrine of equitable estoppel should be applied here to prevent Toyota defendants from raising the statute of limitations as a defense. The complaint, however, does not allege the requisite intentional fraud or fraudulent concealment on the part of defendants upon which an application of this doctrine can be based. See Florio v. Cook, 48 NY2d 792 (1979); Immediate v. St. John's Queens Hospital, 48 NY2d 671 (1979); Simcuski v. Saeli, 44 NY2d 442 (1978). The affirmation submitted also did not lend any factual support to such a claim.
Alternatively, plaintiffs argue that the statute of limitations does not apply to the express warranty claims because the express warranty allegedly extended to future performance. Exception to the rule that an action for breach of implied or express warranty must be commenced within four years after a cause of action has accrued is made where a warranty explicitly extends to future performance of the goods, in which event the cause of action accrues when the breach is or should have been discovered. Uniform Commercial Code § 2-725. See, Weiss v. Herman, 193 AD2d 383 (1st Dept., 1993). Here, however, plaintiffs have not specifically identified what type of express warranty was issued by Toyota defendants, much less shown that Toyota defendants' warranty explicitly extended to future performance for any extended period of time. Accordingly, plaintiffs' causes of action for breach of express warranty and for breach of implied warranty must be dismissed as time-barred.
C. Motion To Dismiss Fraud Claims of Misrepresentation As Lacking Specificity
The Court next examines that part of Toyota defendants' motion seeking to dismiss the fraud claims of misrepresentation as failing to satisfy the pleading requirements of CPLR § 3016(b). To make out a cause of action for fraud or intentional misrepresentation, "a party must allege representation of a material existing fact, falsity, scienter, deception and injury. Reno v. Bull, 226 N.Y.546, 550 (1919). Furthermore, each of these essential elements must be supported by factual allegations sufficient to satisfy CPLR § 3016 (b), which requires, in the case of a cause of action based on fraud, that "the circumstances constituting the wrong shall be stated in detail." Complaints based on fraud or misrepresentation which fail in whole or in part to meet this special test of factual pleading have consistently been dismissed. See e.g., Rotterdam Ventures, Inc. v. Ernst Young LLP, 300 AD2d 963 (3rd Dept., 2002); Edison Stone Corp. v. 42nd St. Dev. Corp., 145 AD2d 249, 257 (1st Dept. 1989); Lanzi v. Brooks, 54 AD2d 1057, 1058 (3rd Dept. 1976).
Here, according to the complaint, the only alleged misrepresentation was that the Toyota defendants "expressly and impliedly warranted that the product . . . was reasonably fit for general use by the public." Such allegation is devoid of any specific or detailed facts regarding the substance of the alleged misrepresentation. Instead, it merely repeats the conclusory claims from the warranty causes of action, which this Court have found are time-barred. A plaintiff, however, cannot recast a time-barred claim as fraud or misrepresentation to circumvent the statute of limitations. Cf. Appian Estates, Inc. v. Mastroddi, 274 AD2d 366 (2nd Dept. 2000) (fraud cause of action cannot be independently sustained since it is inextricably related to the breach of contract and negligence causes of action). Nor does this Court find any merit to plaintiffs' argument that they should be afforded additional discovery in order to definitively ascertain "defendant's advertisements, representation, warranties, and knowledge concerning the safety of the [Toyota] 4Runner." Such belated request is a tacit acknowledgment that the complaint, on its face, is lacking in particularity on this point. Accordingly, plaintiffs' fraud claims based upon misrepresentation must be dismissed as inadequately pleaded in the complaint.
D. Motion To Dismiss Claims of Strict Liability, Negligence and Gross Negligence Claims Against Non-Manufacturers Under Georgia Law
The Court next examines that part of Toyota defendants' motion seeking a dismissal of the strict liability, negligence and gross negligence claims against all defendants, except the Toyota manufacturer, upon the application of Georgia Law. Toyota defendants argue that under Georgia Products Liability Statute, only a product manufacturer can be held liable in strict liability, citing Georgia Law, OCGA § 51-1-1 (West 2004); Boyle v. Gregory Poole Equip, 605 S.E.2d 384, 38 (GA Ct. Appeals 2004). Similarly, Toyota defendants argue that under Georgia Law, non-manufacturers are not liable for the negligence and gross negligence in the manufacturing of consumer goods, citing, inter alia, Crooke v. R.J. Reynolds, Tobacco, Co., 97 F.Supp. 1482; Ream Tool Co. v. Newton, 433 S.E. 67, 70 (GA. Ct. Appeals 1993). Before deciding whether the application of the pertinent Georgia Law to the facts of this case mandates the dismissal of the strict liability, negligence and gross negligence claims against all Toyota defendants, except the Toyota manufacturer, this Court, of course, must examine the Choice of Law issue of whether Georgia Law applies to the facts of this case.
This Choice of Law issue is controlled by the holding in Mann v. Cooper Tire Company, 306 AD2d 23 (1st Dept. 2003), where plaintiffs, injured parties, sued defendants, tire companies, in two separate complaints for damages arising out of a car accident in Quebec allegedly caused by a defective tire manufactured and distributed by the companies. The Supreme Court, Bronx County, denied the companies' motions pursuant to C.P.L.R. § 3211(a)(2) to dismiss the complaints. On appeal, defendants argued that the actions were barred by Quebec Law. The laws in conflict were New York's common law of products liability and negligence, which permitted actions to recover unlimited non-economic damages for injuries caused by defective products and for serious injuries arising out of negligence in the use or operation of a motor vehicle, and Quebec's Automobile Insurance Act, R.S.Q. ch. A-25, a no-fault statute that prohibited actions to recover non-economic loss for injuries sustained in car accidents on its roadways no matter how serious the injury.
Preliminarily, the appellate court found that the action had significant contacts with New York, including the fact that the tire in question was purchased in New York, the vehicle was registered in New York and was owned by a New York domiciliary, and that the injured parties were New York domiciliaries. The contacts with Quebec were the occurrence of the accident and the initial treatment of injuries there. Under the circumstances, the appellate court held that "the trial court properly determined that New York's interest in having its products liability and negligence laws applied was greater than Quebec's interest in having its no-fault law uniformly applied so as to prohibit compensation to United States domiciliaries." Id.
This case is indistinguishable in any significant detail from the facts of Mann v. Cooper Tire Company, 306 AD2d 23 (1st Dept. 2003). Like in Mann, supra, the injury-causing instrumentality (Toyota 4Runner) was purchased in New York, the vehicle was registered in New York and was owned by a New York domiciliary, and the injured parties were New York domiciliaries. Also, like in Mann, supra, the only contacts of the foregoing state to the case is the occurrence of the accident and the initial treatment of injuries there. Under the circumstances, this Court adopts the reasoning of Mann, supra, and finds that "New York's interest in having its products liability and negligence laws applied" is greater than Georgia's interest in having its products liability and negligence law uniformly applied to shield non-manufacturers from liability.
Toyota defendants have failed to convince the Court that this case is distinguishable from Mann in any significant respect. Toyota defendants argue that Mann is distinguishable because it involved a loss allocation rule (Quebec Automobile Insurance Act) and this case involves a conduct regulating rule (products liability and negligence). This argument, however, is factually inadequate since Mann also involved the applicability of New York's conduct regulating rule (products liability and negligence) to an accident that occurred outside the state (Quebec). While New York's choice of law rules generally require the application of the law of the jurisdiction where the tort occurred, it provides for an exemption applicable to this case.
In the strength of New York's significant contacts to this action and the holding of Mann v. Cooper Tire Company, supra, this Court is constrained to find that "New York's interest in having its products liability and negligence laws applied" is greater than Georgia's interest in having its products liability and negligence law uniformly applied to shield non-manufacturers from liability. Therefore, Toyota defendants' motion seeking a dismissal of the strict liability, negligence and gross negligence claims against all defendants, except the Toyota manufacturer, upon the application of Georgia Law, must be denied since New York Choice of Law principles mandate the application of New York law.
Conclusion
For the foregoing reasons, it is hereby
ORDERED that the part of Toyota defendants' motions seeking a dismissal of these two actions, on the ground of forum non conveniens, are denied; it is further
ORDERED that the part of Toyota defendants' motions seeking a dismissal of the claims of breach of express and implied warranty, on the ground that they are time-barred, are granted, such claims are hereby severed and dismissed, and the clerk is directed to enter judgment in favor of the aforementioned Toyota defendants with regard to such claims; it is further
ORDERED that the part of Toyota defendants' motions seeking a dismissal of the claims of fraud (misrepresentation,) on the ground of lacking specificity, in violation of CPLR § 3016(b), are granted, and such claims are hereby severed and dismissed, and the clerk is directed to enter judgment in favor of the aforementioned Toyota defendants with regard to such claims of fraud (misrepresentation); and it is further
ORDERED that the part of Toyota defendants' motions seeking a dismissal of the claims of products liability, negligence and gross negligence, on the ground that they are barred by Georgia law, are denied.
This constitutes the Decision and Order of the Court.