Opinion
Index No.: 162184/2015
07-26-2016
MIKHAIL SEROV, BY HIS MOTHER AND NATURAL GUARDIAN ELENA SEROVA and ELENA SEROVA, INDIVIDUALLY, Plaintiffs, v. KERZNER INTERNATIONAL RESORTS, INC., KERZNER INTERNATIONAL NORTH AMERICA INC., KERZNER NEW YORK, INC., and ATLANTIS PARADISE ISLAND, Defendants.
DECISION AND ORDER
Motion 001 CAROL R. EDMEAD, J.S.C. : MEMORANDUM DECISION
This personal injury action arises out of an incident that occurred in the Bahamas, where then 13 year-old Plaintiff Mikhail Serov ("Mikhail") and his mother, Plaintiff Elena Serova ("Elena"; collectively "Plaintiffs"), were vacationing. Plaintiffs allege that the incident occurred on the property of Defendants Kerzner International Resorts, Inc. ("Kerzner International"), Kerzner International North America, Inc. ("Kerzner North America"), Kerzner New York, Inc. ("Kerzner NY") (collectively, the "Kerzner Defendants"), and Atlantis Paradise Island ("Atlantis"; collectively "Defendants").
Defendants now move, pursuant to CPLR 327 and 3211(a)(7), (8), and (10) to dismiss Plaintiffs' Complaint. For the reasons set forth below, the Complaint is dismissed in its entirety.
BACKGROUND FACTS
Plaintiffs, both of whom are Russian citizens and residents of New Jersey, allege that in June 2014, they were vacationing at the "Atlantis Paradise Island Hotel" on Paradise Island in the Bahamas (the "Atlantis Resort"), when Mikhail was struck by a door and injured. Consequently, Plaintiffs assert causes of action for negligence, parental loss of consortium, and nuisance based on Defendants' alleged ownership, operation, and maintenance of the Atlantis Resort.
In support of their motion to dismiss, Defendants contend that Kerzner International is a Florida corporation with a principal place of business in Dubai, United Arab Emirates and an office in Florida. Kerzner North America is a Delaware corporation with a principal place of business in Dubai, and an office in Florida. Kerzner New York is a Delaware corporation with its principal place of business in Dubai. And, Atlantis is not an actual corporate entity (Neely Affirm ¶¶5-6: Pyfrom Affirm ¶¶ 4-7). Defendants argue first, that forum non conveniens warrants dismissal because this action bears an insufficient nexus to New York, and is more appropriate for a Bahamian forum; second, that the Court lacks personal jurisdiction over the Kerzner Defendants because they have insufficient or no ties to New York, and Atlantis because it is not an entity that can be sued; third, that Plaintiffs failed to join indispensable parties, namely, the owner and operator of Atlantis, Atlantis Holdings (Bahamas) Limited ("Atlantis Holdings") and Island Hotel Company, Limited ("Island"), respectively; fourth, that the Complaint fails to state a cause of action against Atlantis because it is not a legal entity capable of being sued; and fifth, Counts II and III fail to state causes of action because New York does not recognize a cause of action for loss of a child's companionship, and the nuisance claim is insufficiently pled, respectively.
Defendants submit the affirmations of Camille A. Cleare ("Cleare"), a Bahamian Attorney; Sandena Neely ("Neely"), who is the Associate Legal Counsel of the Atlantis Resort and Casino and employed by BREF Bahamas Ltd. ("BREF Bahamas"); and Giselle Pyfrom ("Pyfrom"), the Senior Vice President and Associate General Counsel of Kerzner International Ltd, an alleged holding company of the three Kerzner Defendants.
Kerzner NY had a New York sales and marketing office which closed in 2012, and employs one person in New York (Pyfrom Affirm ¶ 6).
In opposition, Plaintiffs argue first, that Defendants are subject to this Court's jurisdiction because they are domestic corporations, or foreign corporations authorized to do business in New York that designated the Secretary of State to accept service on their behalf; second, that the relevant factors weigh against dismissal based on forum non conveniens, particularly because Plaintiffs' choice of forum is entitled to deference; third, that Defendants' motion, which should be assessed based solely on the allegations of the complaint, improperly relies upon conclusory "affidavits" and is premature due to the necessity of further discovery in light of documents showing defendants' ties to New York; and fourth, discovery is needed to explore the corporate structure of the defendants and how they are related to the alleged indispensible parties (Atlantis Holdings (Bahamas) Limited and Island Hotel Company Limited).
In reply, Defendants argue: first, that Plaintiffs' opposition is procedurally deficient because it improperly combines a memorandum of law and attorney's affirmation, and is lengthier than court rules allow; second, there is little nexus to New York and Plaintiffs' choice of forum is not entitled to the deference they claim, since such deference is based on a plaintiff's residence, and they are foreign plaintiffs; third, Plaintiffs failed to demonstrate how further discovery will establish personal jurisdiction over Defendants; fourth, that Defendants' reliance on affirmations was proper to address the forum non conveniens and lack of personal jurisdiction contentions; fifth, that Plaintiffs' arguments against dismissal and for discovery are incorrect because the affirmations sufficiently explain Defendants' corporate structure; and sixth, that the claims against Kerzner International must be dismissed as unopposed.
DISCUSSION
I. Procedural Arguments
As an initial matter, the Court rejects Defendants' argument that Plaintiffs' opposition should be stricken, either in part or in its entirety, based on the improper amalgamation of the attorney's affirmation and memorandum of law, and excessive length. Our court rules do, indeed, dictate that affirmations and memoranda of law are to be separate documents (22 NYCRR 202.8 [c]), and that affirmations shall be less than 25 pages (Local Rules of the Supreme Court, New York County, Civil Branch, Rule 14 [b]). And, with certain exceptions not applicable here, courts may waive compliance with such rules (see Martinez v Murdock, 111 AD3d 1443, 1444 [4th Dept 2013], citing 22 NYCRR 202.1 [b]). Thus, and in the absence of any demonstrated prejudice to Defendants, the Court considers Plaintiffs' submissions.
Additionally, Plaintiffs' challenge to Defendants' use of "affidavits" mischaracterizes Defendants' submissions. Defendants submitted "affirmations," which may be considered in addressing the merits of a forum non conveniens and jurisdictional argument (see e.g. Dine-A-Mate Inc. v J.B. Noble's Rest. Inc., 240 AD2d 802, 803 [3d Dept 1997] [considering affidavits in support of motion to dismiss for lack of personal jurisdiction]; Shea v Hambro Am. Inc., 200 AD2d 371, 372 [1st Dept 1994] (considering "sharply conflicting affidavits" with respect to whether party was subject to long-arm jurisdiction); Arbeeny v Kennedy Exec. Search. Inc., 31 Misc 3d 494, 500 [Supreme Court, New York County 2011] (utilizing affidavit to explain corporate structure)). Therefore, to the degree the affirmations are not aimed the substantive elements of the negligence, loss of consortium, or nuisance claims, the Court considers the affirmations for the limited purposes of Defendants' remaining arguments. II. Personal Jurisdiction (CPLR 3211 (a)(8))
Personal jurisdiction is addressed first because "if a court lucks jurisdiction over a defendant, it is without power to issue a binding forum non conveniens ruling as to that defendant" (Flame S.A. v Worldlink Intern. (Holding) Ltd., 107 AD3d 436, 437 (1st Dept 2013]).
The burden of proving jurisdiction is upon the party asserting it, and when challenged on jurisdiction, such party must sustain that burden by preponderating proof (Prof. Alexander, Practice Commentaries, CPLR 301:1; 301:8 [McKinney's 2016]); Saratoga Harness Racing Assn. v Moss, 20 NY2d 733, 283 NYS2d 55 [1967]; Copp v Ramirez, 62 AD3d 23, 28, 874 NYS2d 52 [1st Dept 2009]; Jacobs v Zurich Ins. Co., 53 AD2d 524, 384 NYS2d 452 [1st Dept 1976]).
If, upon a defendant's motion to dismiss for lack of jurisdiction (CPLR 3211 [a] [8]), the plaintiff argues that limited discovery is necessary to demonstrate jurisdiction, the plaintiff must first make a "sufficient start," showing that "facts may exist" to justify the exercise of jurisdiction (Practice Commentaries, CPLR 302:5; Norex Petroleum Ltd. v Blavatnik, 48 Misc 3d 1226(A) [Supreme Court, New York County 2015], citing Goel v Ramachandran, 111 AD3d 783, 975 NYS2d 428 [2d Dept 2013]; accord McBride v KPMG Intern., 135 AD3d 576, 577 [1st Dept 2016]( court properly denied jurisdictional discovery where plaintiffs failed to submit affidavits specifying facts that would justify personal jurisdiction)).
a. General Jurisdiction (CPLR 301)
CPLR § 301 provides that "A court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore."
Here, it is uncontested that none of the Defendants are incorporated in New York or have their principal place of business located in New York. And thus, without more, the Court lacks personal jurisdiction over them (see D & R Global Selections, S.L. v Pineiro, 128 A.D.3d 486, 9 N.Y.S.3d 234 [1st Dept 2015] (holding that "defendant neither is incorporated in New York State nor has its principal place of business here, New York courts may not exercise jurisdiction over it under CPLR 301")). Indeed, as a result of the U.S. Supreme Court's decision in Daimler AG v Bauman (134 SCt 746, 187 LEd2d 624 [2014]), "general jurisdiction over a foreign corporation may not be predicated solely on the ground that the corporation 'engages in a substantial, continuous, and systematic course of business' in the state" (Motorola Credit Corp. v Standard Chartered Bank, 24 NY3d 149, 21 NE3d 223, 996 NYS2d 594, fn. 4 [2014], citing 571 Daimler AG, 134 SCt at 761). "Rather, as a matter of due process, general jurisdiction exists only if the corporation is 'essentially at home in the forum State' . . . typified by 'the place of incorporation and principal place of business'" (Motorola Credit Corp., supra, citing 134 SCt at 760 and 761). Thus, contrary to Plaintiffs' contention, it cannot be said that Defendants' authorization to do business in New York constitutes "doing of business" sufficient under Frummer v Hilton Hotels Int'l to subject them to general jurisdiction (MOL, pp 8-9, citing Frummer v Hilton Hotels Int'l , 19 NY2d 533, 227 NE2d 851 [1967] (finding that jurisdiction was acquired over British corporation Hilton Hotels (U. K.) Ltd., because it was "doing business" "in the traditional sense" where its subsidiary, the Hilton Reservation Service, had a New York office, a New York bank account and telephone number, and performed all the business which the British corporation "could do were it here by its own officials")).
However, as Plaintiffs contend, unlike Kerzner International, Kerzner North America and Kerzner NY affirmatively registered to do business in New York. Print-outs from the Secretary of State indicate that Kerzner North America and Kerzner NY "filed for authorization with the State of New York in 2003 and 1960, respectively, and at such time also designated the Secretary of State to receive process for the corporation" (Pls Memo of Law at 13). Notably, Defendants do not dispute the authenticity of those print-outs or their substantive contents.
It has been held that "a foreign corporation is deemed to have consented to personal jurisdiction over it when it registers to do business in New York and appoints the Secretary of State to receive process for it pursuant to Business Corporation Law §§ 304 and 1304" (emphasis added) (Muollo v Crestwood Village, Inc., 155 AD2d 420, 547 NYS2d 87 [2d Dept 1989] citing Augsbury Corp. v Petrokey Corp., 97 AD2d 173, 470 NYS2d 787 [3d Dept 1983] (Delaware corporation's "authorization to do business in the State [of New York] and concomitant designation of the Secretary of State as its agent for service of process pursuant to section 304 (subd. [b]) of the Business Corporation Law is consent to in personam jurisdiction"); Trounstine v Bauer, Pogue & Co., 44 FSupp 767, 770, affd, 144 F2d 379; see also, McLaughlin's Supplementary Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, 1989 Pocket Part. CPLR C301:5, at 7); Genicom Corp. v Ekco Group, 160 AD2d 551, 554 NYS2d 202 [1st Dept 1990] (finding in personam jurisdiction based on purposeful acts and execution in New York pursuant to CPLR 302, "along with defendant's authorization to do business in this state.") citing CPLR 301, Augsbury, 97 AD2d 173 and Muollo, 155 AD2d 420; Doubet, LLC v Trustees of Columbia University in City of New York, 32 Misc 3d 1209(A), 934 NYS2d 33 (Table) [Supreme Court, New York County 2011] (finding that "455 Central Park West, LLC is a foreign corporation authorized to do business in the State of New York by the New York Secretary of State. . . . Its application for authority was filed on September 21, 2000, and the New York Secretary of State certified that, as of September 26, 2000, it was authorized to do business in the State of New York. . . . Because 455 Central Park West LLC is authorized do to business in New York, it consented to in personam jurisdiction in New York by its having filed the application and having received such authorization"); see also see Brown v Lockheed Martin Corp., 814 F3d 619, 640 [2d Cir 2016] (discussing the registration statutes of various states and concluding that New York's registration statute has been construed to confer general jurisdiction], citing Tanya J. Monestier, Registration Statutes, General Jurisdiction, and the Fallacy of Consent, 36 Cardozo L Rev 1343, 1344-45, fns 2, 4 [2015] ("New York courts have general jurisdiction over any and all disputes involving corporations that have registered to do business pursuant to the New York registration statute—regardless of whether the corporation actually did business in New York, or whether the underlying cause of action had anything to do with New York"); Prof. Alexander, Practice Commentaries, CPLR 301:8 [McKinney's 2016], citing Bagdon v Philadelphia & Reading Coal & Iron Co., 217 NY 432, 436-37, 438. 11 NE 1075 [1916, Cardozo, J.]; Flame S.A. v Worldlink Intern. (Holding) Ltd., 107 AD3d 436, 437 [1st Dept 2013]). This is "part of the bargain by which [the foreign corporation] enjoys the business freedom of the State of New York" (Practice Commentaries, CPLR 310:8, citing Neirbo Co. v Bethlehem Shipbuilding Corp., 308 US 165, 175, 60 S Ct 153 [1939]).
As such, Defendants' initial contention that the Court lacks general jurisdiction over them because they were not engaged in a "continuous and systematic course of doing business" in New York, (Defs memo of law at 15), is misplaced; analysis of the nature and frequency of a defendant's business is not required where the defendant has registered to do business in New York and appointed the Secretary of State, as its registered agent, to accept service on their behalf.
Therefore, as Kerzner North America and Kerzner NY were both, at the time this action was commenced, authorized to do business in New York and appointed the Secretary of State as its registered agent to accept service on their behalf, they consented to be subject to the general jurisdiction of New York courts.
And, contrary to Defendants' contention, the due process rights of Kerzner North America and Kerzner NY are not violated through the exercise of such jurisdiction. By taking the affirmative step of registering to do business in New York, those defendants availed themselves of the benefits of being able to do business here. Those benefits are accompanied by the reasonable expectation that they could be hailed into New York courts.
Given that Kerzner North America and Kerzner NY's corporate registration confers jurisdiction irrespective of their business activities, dismissal against such Defendants for lack of personal jurisdiction under CPLR 301 is unwarranted.
By contrast, the record reveals that Kerzner International is a Florida corporation with its principal place of business in the United Arab Emirates (Pyfrom Affirm ¶ 5). And, Plaintiffs' opposition is silent with respect to Kerzner International. Thus, inasmuch as Kerzner International is not incorporated in New York, does not have its principal place of business here, did not register to do business in New York and did not appoint the Secretary of State as its registered agent to accept service of process on its behalf, dismissal for lack of personal jurisdiction over Kerzner International under CPLR 301 is warranted.
Although "legislative inaction is a weak reed upon which to lean in determining legislative intent" (Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 433 [1969]), the Court notes the several recent, but failed, attempts to amend the BCL to expressly state that corporate registration confers general personal jurisdiction (see Registration Statutes, 36 Cardozo L Rev 1343 at fn 2, citing 2014 NY Senate-Assembly Bill S7078, A9576), available at < http://open.nysenate.gov/legislalion /bill/S7078-2013 >; 2015 NY Senate-Assembly Bill S4846, A6714, available at https://www.nysenate.gov/legislation/ bills/2015/S4846 and https://www.nysenate.gov/ legislation/ bills/2015/a6714/amendment/original >). Notably, the changes would only confirm the current jurisprudence.
With respect to Atlantis, Plaintiffs' opposition is also silent. Thus, the record establishes only that Atlantis is not a corporate entity (id. at ¶7), and therefore Plaintiffs fail to meet their burden of demonstrating a basis for general jurisdiction as to these Defendants.
b. Specific/Long Arm Jurisdiction (CPLR 302)
As relevant here, CPLR 302(a) provides that a court may exercise jurisdiction over a non-domiciliary who
1. transacts any business within the state or contracts anywhere to supply goods or services in the state; . . . .
3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce[.]
Plaintiffs introduce only a printout of the "Atlantis Resort & Casino Paradise Island Bahamas BS" website, which lists a Florida address under "contact us," and point out that Kerzner International and Kerzner NY lists this same Florida address on their Department of State registration (compare Pls Exhs A and D). According to Plaintiffs, further discovery is therefore necessary uncover additional evidence of jurisdiction (Pls Affirm in Opp at 30, et seq.). However, Plaintiffs do not explain how such a Florida address indicates that Defendants conducted or solicited business in New York, or otherwise subjected themselves to New York long-arm jurisdiction.
As Plaintiffs failed to demonstrate a "sufficient start" to warrant discovery on jurisdiction under CPLR 301, or to exercise long arm jurisdiction under CPLR 302, dismissal of the action against Kerzner International and Atlantis for lack of personal jurisdiction is warranted. III. Forum Non Conveniens (CPLR 327)
As relevant here, CPLR 327 provides that
(a) When the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action.
A defendant challenging the forum bears the heavy burden of demonstrating relevant private or public interest factors which militate against accepting the litigation (Wilson v Dantas, 128 AD3d 176, 187 [1st Dept 2015], citing Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479 [1984], cert denied 469 US 1108 [1985]). Among the factors to be considered are the residence of the parties, the location of the transaction giving rise to the cause of action, the applicability of the laws of another state or country, the location of the witnesses and any pending discovery, the burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum where the plaintiff may bring suit (Pahlavi, 62 NY2d at 479; Daly v Metropolitan Life Ins. Co., 4 Misc 3d 887, 894 [2004]).
No one factor is controlling, since the doctrine of forum non conveniens is flexible in application, based on the facts and circumstances of each case (Pahlavi, 62 NY2d at 479). Ultimately, dismissal on the ground of forum non conveniens is appropriate when "plaintiff's chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice" (Piper Aircraft Co. v Reyno, 454 US 235, 249 [1981]). The overall issue is whether there is a "substantial nexus" between the plaintiff's action and the state of New York (Pahlavi, 62 NY2d at 483). Here, Defendants are entitled to dismissal pursuant to CPLR 327 as they have demonstrated that this action bears little relationship to New York, and that they would suffer disproportionate hardship if the court denied their motion. Conversely, Plaintiffs have not offered persuasive reasons to support their argument that New York is the appropriate forum.
a. Residence
Plaintiffs' only connection to New York appears to be that they departed on a Norwegian Cruise Line cruise from New York City, and that Mikhail has been treated by medical providers in Hewlett, NY and Bronx, New York (the recency or frequency of that treatment is not indicated) (Serova Aff. at 1-2). Indeed, Plaintiffs admit that they are both Russian citizens residing in New Jersey (id. at 1). Moreover, even crediting the corporate registration of Kerzner North America and Kerzner NY in this state, those Defendants are incorporated in Delaware, not New York (see e.g. Lerner v Friends of Mayanot Inst., Inc., 126 AD3d 431, 431 [1st Dept 2015] (denying dismissal on forum non conveniens grounds because, among other things, defendant was incorporated in New York]).
Dismissal has been found to be appropriate in cases involving out-of-state accidents, even where all of the parties were New York residents, and, conversely, for in-state accidents brought by one out-of-state resident against another (see Westwood Associates v Deluxe General, Inc., 53 NY2d 618, 438 NYS2d 774 [1981]; Martin v Mieth, 35 NY2d 414 [1974]; see also Belachew v Michael, 1983, 59 NY2d 1004, 466 NYS2d 954 [1983] (case dismissed despite plaintiff's New York residency where accident occurred in Pennsylvania and defendant would suffer hardship because of inability to obtain jurisdiction in New York over important third-party defendants)).
Here, out-of-state residents have brought an action against out-of-state residents for an out-of-state accident. Accordingly, this factor militates in favor of dismissal.
b. Locus of Events
With respect to the locus of events, the location where the cause of action "obviously is an important factor weighing in favor of dismissal" (Practice Commentaries, CPLR 327:2[c]). In such cases, relevant witnesses and documents are likely to be located outside New York (see e.g. Bewers v American Home Products Corp., 99 AD2d 949, 472 NYS2d 637 [1st Dept 1984, aff'd 64 NY2d 630, 485 NYS2d 39, 474 NE2d 247 (mass products liability action in which all plaintiffs, residents of United Kingdom, were injured in England); World Point Trading PTE, Ltd. v Credito Italiano, 225 AD2d 153, 649 NYS2d 689 [1st Dept 1996] (complex international business transaction involving nonresidents and cause of action with primarily foreign locus); compare Brodherson v V. Pome & Sons, 209 AD2d 276, 277 [1st Dept 1994] (dismissal inappropriate because of a substantial nexus to New York: the accident, plaintiff's medical care, a New York Police Officer witness, and the proposed alternative forum was New Jersey, "a short drive across the George Washington Bridge")).
Here, none of the liability witnesses- including Plaintiffs-are located in New York. Though Plaintiffs may be located in nearby New Jersey, it is undisputed that most of the liability witnesses are in the Bahamas (see Neely Aff ¶ 8). Accordingly, this factor also favors dismissal.
c. Burden on New York Courts
With respect to the burden on New York courts, the Court's application of Bahamian law, if necessary, is weighed less than the other factors, but nevertheless an important consideration because expert testimony may be required (see Shin-Etsu Chem. Co., Ltd. v 3033 ICICI Bank Ltd., 9 AD3d 171, 178 [1st Dept 2004]). More important, however, is the administrative burden on the court, and the difficulties underlying the exercise of jurisdiction over necessary witnesses, evidence, and potentially additional defendants that are located in the Bahamas. Because "our courts are not required to add to their financial and administrative burdens by entertaining litigation which does not have any connection with this state," this factor also weighs in favor of dismissal (Am. BankNote Corp. v Daniele, 45 AD3d 338, 342 [1st Dept 2007], citing Pahlavi, 62 NY2d at 478).
d. Hardship to Defendants
With respect to the hardship on Defendants, while Plaintiffs correctly note that Defendants have raised the possibility of video depositions held outside New York (Cleare Affirm ¶3), that convenience would not obviate the inconvenience and expense of requiring multiple witnesses to travel for trial, particularly where there is no evidence in the record that any of the witnesses have expressed a willingness to do so (Century Indem. Co. v Liberty Mut. Ins. Co., 107 AD3d 421, 423 [1st Dept 2013]; compare Grizzle v Hertz Corp., 305 AD2d 311, 761 NYS2d [1st Dept 2003](dismissal on forum non conveniens grounds reversed because, though accident occurred in Jamaica and police officer who responded to accident scene was Jamaican resident, the driver and other passengers indicated their willingness to travel to New York to testify, passenger's physicians and medical reports were in New York, defendant did business in New York, and there was no suggestion that officer would be able to offer any material evidence other than his written report )). Accordingly, this factor also weighs in favor of dismissal.
e. Alternative Forum/Hardship to Plaintiffs
Finally, the fact that the Bahamas constitute a reasonable forum also weighs in favor of dismissal. The statute of limitations for negligence actions is three years from the date of the accident, which would afford Plaintiffs until June 25, 2017 to file their claim—and perhaps longer, as Defendants have indicated a willingness to extend that deadline (Statute Law of the Bahamas, Ch. 83[9][2]; Defs memo of law at 13). The Bahamian legal system is patterned after the English system, allows access to evidence, sites, and witnesses, recognizes causes of action for common law negligence, and supports enforcement of judgments (Neely Affirm ¶12; Cleare Affirm ¶2).
Plaintiffs correctly note that the absence of contingency fees weighs against dismissal (Waterways Ltd. v Barclays Bank PLC, 174 AD2d 324, 328 [1st Dept 1991]), and the Court notes that the likely absence of a trial by jury in the Bahamas would also prejudice Plaintiffs (Wilson v Is. Seas Investments, Ltd., 590 F3d 1264, 1268 [11th Cir 2009]; Neville v Anglo Am. Mgt. Corp., 191 AD2d 240, 243 [1st Dept 1993]).
Yet, Plaintiffs' claim of their financial hardship based solely on Elena's inability to work, in and of itself, and without any further details about her financial situation or the projected expenses, is insufficient to tip the scales in favor of maintaining Plaintiffs' choice of forum in New York (see e.g., McKrell v Penta Hotels (France), 703 F Supp 13 [SDNY 1989] (plaintiff owed $10,000 in medical bills which she was unable to pay, her health insurance was set to expire, and she had assets of under $50)). Nor does the Court accept Plaintiffs' argument that the absence of comparative negligence in Bahamian law counsels against dismissal because, were this case to proceed, Bahamian negligence standards might apply regardless (Pahlavi, 62 NY2d at 479-89). Plaintiffs also do not provide any authority for the proposition that the potential application of comparative versus contributory negligence standards counsel against dismissal.
Accordingly, and recognizing the majority rule that a plaintiff's financial hardships resulting from the absence of contingent fee arrangements is just one factor to be weighed in determining the balance of convenience after the court determines that an alternative forum is available, (Murray v Br. Broadcasting Corp., 81 F3d 287, 292 [2d Cir 1996]), Plaintiff's hardships are insufficient to overcome the availability of a viable alternative forum.
Weighing all of the factors favoring dismissal against the fact that Plaintiffs would endure some hardship by having to travel and hire a Bahamian attorney, dismissal is warranted against all of the defendants on forum non conveniens grounds. IV. Failure to Join Indispensable Parties (CPLR 3211 (a)(10))
CPLR 3211(a)(10) permits dismissal when it is shown that a person indispensable to the action has not been, and cannot be, made a party, and imposes a "demanding" set of conditions to justify dismissal: (1) the person is not subject to jurisdiction and will not appear voluntarily; (2) no CPLR 1001(b) alternative is available; and (3) such person is so essential to the litigation that it cannot justly proceed in his absence (Practice Commentaries, CPLR 3211:34). Dismissal is a "last resort" (Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d 801, 821 [2003]). The first question is whether the absentee is necessary within the meaning of CPLR 1001(a) - if the answer is no, the inquiry is at an end (Practice Commentaries, CPLR 1001:1).
For the most part, plaintiff has the right to decide for herself the persons she will join as parties to an action (id.), and is required only to afford complete relief between the parties or avoid a judgment that inequitably affects a missing party (CPLR 1001 [a]). To that effect, joint and several tortfeasors are permissive, not indispensable parties whose rights will be "inequitably affected" by entry of judgment (Hecht v City of NY, 60 NY2d 57, 62-63, 467 NYS2d 187, 190, 454 NE2d 527, 530 [1983]; 27th St. Block Ass'n. v Dormitory Auth. of State of N.Y., 302 AD2d 155, 160 [1st Dept 2002]; compare Schaffer v Landolfo, 27 AD3d 812 [3d Dept 2006] (action to determine plaintiffs' claim to a particular right of way dismissed because plaintiffs failed to join all other parties with claims to the same right of way)). Defendants' conclusory claim of the possibility that a judgment rendered without the unnamed party could have an adverse practical effect on that party lacks merit.
Accordingly, Atlantis Holdings and Island are not, regardless of their relative ownership and/or maintenance responsibilities (Neely Affirm ¶¶ 4-6), "necessary" parties because they are not required to provide complete relief to the parties, and their interests will not be unavoidably affected by a judgment. That is, even crediting Defendants' admissions regarding the ownership and maintenance roles of Atlantis Holdings and Island, their absence would only mean that Plaintiffs may have sued the incorrect entities, or, that these parties may be subject to an impleader action. Thus, dismissal pursuant to CPLR 3211(a)(10) for failure to join necessary parties is unwarranted. V. Failure to State a Claim (CPLR 3211 (a)(7))
Defendants' additional claim that the Court does not have jurisdiction over Atlantis Holdings and Island cannot be determined on the record. The affidavits are silent as to those entities' connections to New York and thus, it cannot be said that no basis exists for the exercise of jurisdiction over these entities.
In light of the Court's decision to dismiss the action on the ground of forum non conveniens, the Court does not address whether the claims state a cause of action or whether a claim may be asserted against Atlantis, a non-legal entity, as such issues are reserved for the Bahamian court (Troni v Banca Popolare Di Milano, 129 AD2d 502, 514 NYS2d 246 [1st Dept 1987] (finding that Supreme Court should not have addressed the merits of the complaint pursuant to CPLR 3211(a)(7) once it dismissed the action on forum non conveniens grounds, as that issue was "best reserved for the courts of Italy")).
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that the branch of Defendants' motion, pursuant to 3211(a)(7), (8), and (10) to dismiss Plaintiffs' Complaint, is granted solely to the extent that the complaint is dismissed pursuant to CPLR 3211(a)(8) against Kerzner International Resorts, Inc. and Atlantis Paradise Island for lack of personal jurisdiction; and it is further
ORDERED that the branch of Defendants' motion pursuant to CPLR 327 to dismiss the complaint on the ground of forum non conveniens is granted, and the action is hereby dismissed without prejudice as to Plaintiffs' right to re-file in the courts of The Bahamas; and it is further
ORDERED that Defendants shall serve a copy of this decision and order on all parties and the County Clerk within 30 days of the date of this order; and it is further
ORDERED that the clerk may enter judgment in favor of Defendants accordingly.
This constitutes the decision and order of the Court. Dated: July 26, 2016
/s/_________
Hon. Carol R. Edmead, J.S.C.