Opinion
13538 Index No. 654225/19 Case No. 2020-02676
04-06-2021
SWISSGEM S.A., et al., Plaintiffs–Appellants, v. M&B LIMITED, Defendant–Respondent.
Fleischner Potash LLP, Mineola (Evan A. Richman of counsel), for appellants. Miller Leiby & Associates, P.C., New York (Doron Leiby of counsel), for respondent.
Fleischner Potash LLP, Mineola (Evan A. Richman of counsel), for appellants.
Miller Leiby & Associates, P.C., New York (Doron Leiby of counsel), for respondent.
Renwick, J.P., Kennedy, Scarpulla, Shulman, JJ.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered on or about May 4, 2020, which, to the extent appealed from as limited by the briefs, granted defendant's motion to dismiss the complaint on forum non conveniens grounds on condition that defendant accept service of process of an action to proceed in Hong Kong, and ordered the diamond at issue (Diamond) to remain in the possession of the Gemological Institute of America (GIA) in New York pending a stipulation of the parties or the direction of the Hong Kong court, unanimously modified, on the law and the facts and in the exercise of discretion, to direct that this action proceed in Switzerland or Hong Kong, at plaintiffs' option, and on condition of defendant's acceptance of service of the action once commenced in plaintiffs' choice of forum, and to direct that the Diamond remain in GIA's possession pending stipulation of the parties or the direction of either the Hong Kong or the Swiss court, and otherwise affirmed, without costs.
Although a plaintiff's choice of forum should rarely be disturbed even when the plaintiff is not a New York resident ( OrthoTec, LLC v. Healthpoint Capital, LLC, 84 A.D.3d 702, 924 N.Y.S.2d 78 [1st Dept. 2011] ), the motion court providently dismissed the complaint on forum non conveniens grounds, given the weak connection of this dispute to New York (see generally Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 479, 478 N.Y.S.2d 597, 467 N.E.2d 245 [1984], cert denied 469 U.S. 1108, 105 S.Ct. 783, 83 L.Ed.2d 778 [1985] ). The record before us does not definitively show whether defendant sent the Diamond to be graded by GIA in New York. Nor did plaintiffs show that the continued retention of the Diamond by GIA in New York would justify keeping the case in New York (see Anagnostou v. Stifel, 204 A.D.2d 61, 611 N.Y.S.2d 525 [1st Dept. 1994] ; Republic of Lebanon v. Sotheby's, 167 A.D.2d 142, 561 N.Y.S.2d 566 [1st Dept. 1990] ).
On this record, both Hong Kong and Switzerland are adequate alternative forums with Switzerland being the preferred one and dismissal shall be conditioned upon defendant accepting service of process in either Hong Kong or Switzerland, exclusively "at plaintiffs' option" ( Al Nyman & Son v. United States Lines, 44 A.D.2d 516, 516, 353 N.Y.S.2d 8 [1st Dept. 1974] ; see also Kuwaiti Eng'g Group v. Consortium of Intl. Consultants, LLC, 50 A.D.3d 599, 600, 856 N.Y.S.2d 101 [1st Dept. 2008] ; Boyle v. Starwood Hotels & Resorts Worldwide, Inc., 110 A.D.3d 938, 940, 973 N.Y.S.2d 728 [2d Dept. 2013], affd 23 N.Y.3d 1012, 992 N.Y.S.2d 773, 16 N.E.3d 1252 [2014] ).