Opinion
December 9, 1971
Order, Supreme Court, New York County, entered April 12, 1971, denying defendant's motion to dismiss the complaint on the ground of forum non conveniens is unanimously reversed, on the law, the facts and in the exercise of discretion, without costs and without disbursements, and the motion is granted and the complaint dismissed, on condition that within 10 days after service of a copy of the order to be entered hereon, defendant stipulates to accept service of process in either Greece or Switzerland (to be determined at the election of plaintiff) and to appear in an action to be commenced in either of those countries for the same relief demanded in the complaint herein, that in any action commenced in either Greece or Switzerland it will not challenge plaintiff's capacity to sue, that it will not plead the Statute of Limitations as a defense in any such action brought in either Switzerland or Greece but will waive it and that, in the event of a dismissal of any such action instituted in the aforesaid countries other than those mentioned under the exceptions contained in CPLR 205, the plaintiff may reinstitute suit in the courts of this State within the six-month period of limitations contained in that section. In the event of defendant's failure to comply with the foregoing conditions, the order is affirmed, without costs and without disbursements. The action in either Switzerland or Greece is to be instituted within three months after service of a copy of the order to be entered hereon and compliance with the conditions imposed. "It is the general policy of the courts of this State, in the absence of special circumstances, to reject actions between nonresidents founded on tort, where the cause of action arises outside the State". ( Aetna Ins. Co. v. Creole Petroleum Corp., 27 A.D.2d 518, affd. 23 N.Y.2d 717; see, also, Mayflower Rest. Enterprises v. Gulf Amer. Corp., 36 A.D.2d 941; Jones v. United States Lines, 36 A.D.2d 601; Gilchrist v. Trans-Canada Air Lines, 27 A.D.2d 524; Ginsburg v. Hearst Pub. Co., 5 A.D.2d 200, affd. 5 N.Y.2d 894.) The record herein does not indicate any special circumstances impelling the retention of jurisdiction. The plaintiff is a domiciliary of Greece; the ship upon which the accident occurred flies the Liberian flag; the defendant is a Liberian corporation with its principal place of business in Switzerland and the accident occurred while the ship was in port in Venezuela — the voyage having started from a port in Virginia. And, it is to be noted that after the plaintiff sustained his injuries he was treated in Venezuela and returned to his native Greece. The above factors indicate that trial of this action in New York would constitute an unnecessary burden on the New York courts as well as an improper hardship on this foreign defendant. The fact that plaintiff asserts a cause of action under the Jones Act does not require denial of the motion to dismiss based upon forum non conveniens where it appears as here, that the governing factors indicate that United States law should not apply. (See Lauritzen v. Larsen, 345 U.S. 571; Hernandez v. Cali Inc., 32 A.D.2d 192, affd. 27 N.Y.2d 903.) Moreover, it does not appear that plaintiff cannot bring his action in Switzerland where the defendant has its main office, nor does it conclusively appear that plaintiff may not bring action in his native country — Greece. In any event, the conditions under which we reverse adequately protect plaintiff if either of those countries do not have or fail to exercise jurisdiction. Settle order on notice.
Concur — Nunez, J.P., Kupferman, McNally, Tilzer and Eager, JJ.