Opinion
2404
December 3, 2002.
Order, Supreme Court, New York County (Jane Solomon, J.), entered October 17, 2001, which denied defendant's motion to dismiss the action as barred by the doctrine of res judicata, but granted the motion to dismiss on the alternative ground of forum non conveniens, unanimously modified, on the facts and in the exercise of discretion, to provide that dismissal of the action is to be conditioned upon defendant's stipulation to the tolling of the statutory period for the time this action was pending in New York, and otherwise affirmed, without costs.
Peter A. McLauchlan, for Plaintiffs-appellants-respondents.
Rex F. Brien for Defendant-respondent-appellant.
MAZZARELLI, J.P., ANDRIAS, SAXE, SULLIVAN, ROSENBERGER, JJ.
Defendant's motion to dismiss, insofar as predicated on the doctrine of res judicata, was properly denied since there is no final judgment on the merits against plaintiffs in the unsuccessful Federal action brought by Brown Root against defendant claimed by defendant to be preclusive of the instant litigation. Plaintiffs sought to join the Federal action as parties plaintiff, but their motion was denied, and defendant has not met its burden to demonstrate that plaintiffs were in privity with Brown Root (cf. Buechel v. Bain, 97 N.Y.2d 295, cert denied 535 U.S. 1096, 122 S.Ct. 2293).
However, inasmuch as the record indicates that the action concerns events, companies and witnesses situated in Pennsylvania, and otherwise lacks any substantial connection to New York, the motion court properly exercised its discretion in concluding that retention of the action in New York would not be in the interest of substantial justice (see Islamic Republic v. Pahlavi, 62 N.Y.2d 474, 478-479, cert denied 469 U.S. 1108). Contrary to plaintiffs' assertion, even if defendant maintained its headquarters in New York, that alone would not require the conclusion that New York is an appropriate forum (see e.g. Chawafaty v. Chase Manhattan Bank, N.A., 288 A.D.2d 58, lv denied 98 N.Y.2d 607).
We modify only to condition the forum non conveniens dismissal upon the tolling of the limitations period during the pendency of the New York action (see CPLR 327[a]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.