Opinion
November 15, 1995
Appeal from the Supreme Court, Ontario County, Cornelius, J.
Present — Green, J.P., Lawton, Fallon, Doerr and Balio, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint dismissed in accordance with the following Memorandum: Defendants' motion to dismiss the complaint on the ground of forum non conveniens (see, CPLR 327) was improperly denied. Balancing the interests and conveniences of the parties and the court, we conclude that the action could be better adjudicated in another forum (see, Varkonyi v S.A. Empresa De Viacao Airea Rio Grandense [Varig], 22 N.Y.2d 333, 337-338). Plaintiffs and one defendant are residents of the Province of Ontario and the other defendant is an Ontario resident and the other is an Ontario corporation. The accident occurred during a round-trip bus ride that originated and terminated in Toronto, Ontario. The only connection with New York is "the adventitious circumstance that the accident occurred here" (Martin v Mieth, 35 N.Y.2d 414, 418). That fact alone does not constitute a nexus sufficient to warrant the retention of jurisdiction (see, Martin v Mieth, supra, at 418). The interest of justice requires, however, that conditions be imposed upon the dismissal of the action so that plaintiffs are not left without an alternative forum (see, Crown Cork Seal Co. v Rheem Mfg. Co., 64 A.D.2d 545). The action is dismissed, therefore, upon condition that: (1) defendants agree to accept service of process in the Province of Ontario and appear in an action to be commenced in Ontario for the same relief demanded in this action, provided that service is made within four months of service of a copy of the order herein with notice of entry; and (2) defendants agree that in any such action commenced in Ontario they will not plead the Statute of Limitations, but will waive that defense. In the event of defendants' failure to comply with the foregoing conditions, the action should be reinstated upon appropriate application by plaintiffs.