Thomas Boyle, et al., Appellants,v.Starwood Hotels & Resorts Worldwide, Inc., Respondent.BriefN.Y.June 24, 2014New York Supreme Court APPELLATE DIVISION — SECOND DEPARTMENT THOMAS BOYLE, CATHERINE BOYLE and ELODIE NOGUES, Plaintiffs-Appellants, against STARWOOD HOTELS & RESORTS WORLDWIDE, INC., Defendant-Respondent. >> >> To Be Argued By: Troy B. Froderman Time Requested: 15 Minutes BRIEF FOR DEFENDANT-RESPONDENT POLSINELLI SHUGHART PC Attorneys for Defendant-Respondent 805 Third Avenue, Suite 2020 New York, New York 10022 212-684-0199 Westchester County Clerk’s Index No. 3607/11 Docket No. 2011-10142 Of Counsel: Jason A. Nagi Troy B. Froderman, Pro Hac Vice Megan H. Tracy, Pro Hac Vice i 2824700.2 Table of Contents Page COUNTERSTATEMENT OF QUESTIONS PRESENTED .................................... 1 STANDARD OF REVIEW ....................................................................................... 1 PRELIMINARY STATEMENT ............................................................................... 2 ARGUMENT ............................................................................................................. 9 I. Point 1: THE SUPREME COURT CONSIDERED ALL RELEVANT FACTORS AND PROVIDENTLY EXERCISED ITS DISCRETION IN DISMISSING PLAINTIFFS’ COMPLAINT ....... 11 A. The Residency of the Parties Supports the Supreme Court’s Decision .................................................. 11 B. The Location of the Evidence and Witnesses Supports the Supreme Court’s Decision ................................... 15 1. The Documents are Located Outside New York ............ 16 2. The Witnesses are Located Outside New York .............. 20 C. The Situs of the Underlying Events Supports the Supreme Court’s Decision .................................................. 23 D. The Burden Upon New York Courts Supports the Supreme Court’s Decision .................................................. 26 E. The Availability of An Alternative Forum Supports the Supreme Court’s Decision ........................................................ 32 1. England is an Adequate Alternative Forum ................... 34 2. France is an Adequate Alternative Forum ...................... 37 3. Dubai is an Adequate Alternative Forum ....................... 39 II. Point 2: THE SUPREME COURT CORRECTLY PLACED THE BURDEN UPON STARWOOD ............................... 41 III. Point 3: THE SUPREME COURT DID NOT ERR BY NOT PLACING A CONDITION UPON DISMISSAL OF PLAINTIFFS’ COMPLAINT ................................. 44 CONCLUSION ........................................................................................................ 45 ii 2824700.2 Table of Authorities Page(s) FEDERAL CASES Arellano v. Starwood Hotels & Resorts Worldwide, Inc., 448 F. Supp. 2d 520 (S.D.N.Y. 2006) .................................................... 24, 29, 44 Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1984) ............................................................................................ 31 Manela v. Garantia Banking Ltd., 940 F. Supp. 584 (S.D.N.Y. 1996) ..................................................................... 36 Payne v. Jumeriah Hospitality & Leisure Inc., 808 F.Supp.2d 604 (S.D.N.Y. 2011) ................................................................. 44 Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) ............................................................................................ 12 PT United Can Co. v. Crown Cork & Seal Co., 1997 WL 31194 (S.D.N.Y. Jan. 28, 1997) ......................................................... 28 STATE CASES Aboujdid v. Gulf Aviation Co., 108 Misc.2d 175, 437 N.Y.S.2d 219, aff’d 86 A.D.2d 564, 448 N.Y.S.2d 437 (1st Dept. 1982) ................................ 35 Adamowicz v. Besnainou, 58 A.D.3d 546, 872 N.Y.S.2d 47 (1st Dept. 2009) .................................. 7, 12, 37 Anagnostou v. Stifel, 204 A.D.2d 61, 611 N.Y.S.2d 525 (1st Dept. 1984) ..................................... 22, 31 Animalfeeds Int’l Inc. v. Banco Espirito Santo E. Comercial De Lisboa, 101 Misc.2d 379, 420 N.Y.S.2d 954 (Sup. Ct. 1979) ....................................... 30 Avnet, Inc. v. Aetna Cas. & Sur. Co., 160 A.D.2d 463, 554 N.Y.S.2d 134 (1st Dept. 1990) .................................. 15, 21 Banco Nacional Ultramarino, SA v. Chan, 169 Misc.3d 182, 641, N.Y.S.2d 1006 (Sup. Ct. 1996) .................................... 35 iii 2824700.2 Blueye Navigation, Inc. v. Den Norske Bank, 239 A.D.2d 192, 658 N.Y.S.2d 9 (1st Dept. 1997) ...................................... 12, 34 Bock v. Rockwell Mfg. Co., 151 A.D.2d 629, 543 N.Y.S.2d 89 (2d Dept. 1989) ........................................... 30 Brewers v. Am. Home Prods. Corp., 99 A.D.2d 949, 472 N.Y.S.2d 637 (1st Dept. 1984) ......... 6, 7, 17, 21, 24, 33-38 Brinson v. Chrysler Fin., 43 A.D.3d 846, 842 N.Y.S.2d 48 (2d Dept. 2007) ................................... 4, 10,11 Brooke Group Ltd. v. JCH Syndicate 488, 214 A.D.2d 486, 625 N.Y.S.2d 223 (1st Dept. 1995) ........................................ 34 Certain Underwriters at Lloyd’s v. Mobil Corp., 303 A.D.2d 259, 756 N.Y.S.2d 204 (1st Dept. 2003) ........................................ 15 Citigroup Global Mkts, Inc. v. Metals Holding Corp., 12 Misc.3d 1168(A), 820 N.Y.S.2d 841 (Sup. Ct. 2006) ................................... 25 CK’s Supermarket Ltd. v. Peak Entm’t Holdings, Inc., 37 A.D.3d 348, 831 N.Y.S.2d 138 (1st Dept. 2007) .......................................... 34 Continental Ins. Co. v. Amax, Inc., 192 A.D.2d 391, 596 N.Y.S.2d 370 (1st Dept. 1993) ........................................ 15 Continental Ins. Co. v. Garlock Sealing Techs. LLC, 23 A.D.3d 287, 805 N.Y.S.2d 18 (1st Dept. 2005) ........................................... 30 Davidson Extrusions, Inc v. Touche Ross & Co., 131 A.D.2d 421, 516 N.Y.S.2d 230 (2d Dept.1987) .............................. 17, 24, 28 DeTorres v. Arocena, 155 Misc.2d 52, 587 N.Y.S.2d 495 (Sup. Ct. 1992) .......................................... 27 Edelman v. Taittinger, S.A., 298 A.D.2d 301, 751 N.Y.S.2d 171 (1st Dept. 2002) ........................................ 38 Employers Ins. of Wausau v. Primerica Holdings, 199 A.D.2d 178, 605 N.Y.S.2d 89 (1st Dept. 1993) .................................... 15, 32 iv 2824700.2 Fin. Guar. Ins. Co. v. IKB Deutsche Industrie AG, 2008 WL 5478808 (N.Y. Sup. Ct. Dec. 29, 2008) ............................. 7, 12, 13, 34 Finance & Trading Ltd. v. Rhodia S.A., 28 A.D.3d 346, 816 N.Y.S.2d 7 (1st Dept. 2006) .............................................. 37 Flamel Technologies v. Soula, 16 Misc.3d 1129(A), 847 N.Y.S.2d 901 (Sup. Ct. 2007) ................................... 37 Foster Wheeler Iberia S.A. v. Mapfre Empresas S.A.S., 15 Misc.3d 1112(A), 839 N.Y.S.2d 433 (Sup. Ct. 2007) ............................. 25, 28 Globalvest Mgmt. Co. v. Citibank, N.A., 7 Misc.3d 1023(A), 801 N.Y.S.2d 234 (Sup. Ct. 2005) ............................... 25, 28 Healy v. Renaissance Hotel Operating Co., 282 A.D.2d 363, 724 N.Y.S.2d 719 (1st Dept. 2001) ........................................ 25 In re Oxycontin II, 76 A.D.3d 1019, 908 N.Y.S.2d 239 (2d Dept. 2010) ............................... 3, 11, 15 Intertec Contracting A/S v. Turner Steiner Int’l, 6 A.D.3d 1, 774 N.Y.S.2d 14 (1st Dept. 2004) ................................................. 31 Islamic Rep. of Iran v. Pahlavi, 62 N.Y.2d 474, 278 N.Y.S.2d 597 (1984) ………………….…………..et passim J. Zeevi & Sons v. Grindlays Bank (Uganda), 37 N.Y.2d 220, 371 N.Y.S.2d 892 (1975) ......................................................... 30 Kashyap v. Babcock & Wilcox, 268 A.D.2d 348, 702 N.Y.S.2d 267 (1st Dept. 2000) ........................................ 27 Keller v. Pfizer, Inc., 2008 WL 351001 (N.Y. Sup. Ct. Feb. 8, 2008).................................................. 31 Kronengold v. Hilton Hotels Corp., 166 A.D.2d 325, 560 N.Y.S.2d 1022 (1st Dept. 1990) ...................................... 30 Kuwaiti Engn’g Group v. Consortium of Int’l Consultants, LLC, 50 A.D.3d 599, 856 N.Y.S.2d 101 (1st Dept. 2008) .......................................... 37 v 2824700.2 Matter of Berger, 81 A.D.2d 584, 437 N.Y.S.2d 690 (2d Dept. 1981) ........................................... 34 McGuire v. W.R. Schmidt, LLC, 75 A.D.3d 538, 903 N.Y.S.2d 918 (2d Dept. 2010) .................................. 1, 2, 10 Millicom Intern. Cellular S.A. v. Simon, 247 A.D.2d 223, 668 N.Y.S.2d 591 (1st Dept. 1998) ........................................ 25 Mionis v. Bank Julius Baer & Co., 9 A.D.3d 280, 780 N.Y.S.2d 323 (1st Dept. 2004) ........................................... 31 Morley v. Morley, 191 A.D.2d 372, 595 N.Y.S.2d 200 (1st Dept. 1993) ........................................ 38 National Bank and Trust Co. v. Banco de Vizcaya, 531 N.E.2d 634, 534 N.Y.S.2d 913 (1988) ............................................... 1, 2, 10 Neville v. Anglo American Mgmt. Corp., 191 A.D.2d 240, 594 N.Y.S.2d 747 (1st Dept. 1993) ....................................... 35 Neuter, Ltd v. Citibank, 239 A.D.2d 213, 657 N.Y.S.2d 663 (1st Dept. 1997) ..............6, 7, 25, 28, 36, 38 Payne v. Jumeriah Hospitality & Leisure, Inc., 83 A.D.3d 518, 921 N.Y.S.2d. 229 (1st Dept. 2011) ......... 6, 9, 25, 32, 33, 39-41 Payne v. Jumeriah Hospitality & Leisure, Inc., 2009 WL 3697026 (N.Y. Sup. Ct. Oct. 15, 2009) .............................................. 40 Pentifallo v. Hilton of Panama, 86 A.D.2d 583, 447 N.Y.S.2d 1 (1st Dept. 1982) ............................................. 31 Phat Tan Nguyen v. Indosuez, 19 A.D.3d 292, 797 N.Y.S.2d 89 (1st Dept. 2005) ............................................ 37 Sambee Corp. v. Moustafa, 216 A.D.2d 196, 626 N.Y.S.2d 664 (1st Dept. 1995) ....................................... 31 Schulz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189, 491 N.Y.S.2d 90 (1985) ............................................................ 29 vi 2824700.2 Shin-Etsu Chem. Co., Ltd. v. 3033 ICICI Bank, Ltd., 9 A.D.3d 171, 777 N.Y.S.2d 69 (1st Dept. 2004) .................................. 27, 28, 36 Silver v. Great Am. Ins. Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398 (1972) ................................................ 1, 10, 27 Smolik v. Turner Constr. Co., 48 A.D.3d 452, 851 N.Y.S.2d 616 (2d Dept. 2008) ....................................... 2, 10 Tilleke & Gibbins Int’l., Ltd v. Baker & McKenzie, 302 A.D.2d 328, 756 N.Y.S.2d 179 (1st Dept. 2003) ........................................ 28 Tooth v. Georgiou, 69 A.D.3d 464, 895 N.Y.S.2d 33 (1st Dept. 2010) ............................................ 34 Travelers Cas. and Sur. Co. v. Honeywell Intern. Inc., 48 A.D.3d 225, 851 N.Y.S.2d 426 (1st Dept. 2008) ......................................... 41 Varkonyi v. S.A. Empresa De Viacao Airea Rio Grandense, 22 N.Y.2d 333, 292 N.Y.S.2d 670 (1968) ........................................................... 1 World Point Trading PTE, Ltd. v. Credito Italiano, 225 A.D.2d 153, 649 N.Y.S.2d 689 (1st Dept. 1996) ........................................ 23 Wyser-Pratte Mgmt. Co., Inc., v. Babcock Borsig AG., 7 Misc.3d 1012(A), 801 N.Y.S.2d 244 (Sup. Ct. 2004) ............... 7, 25, 28, 37, 38 Yun Ra v. Windrow, 82 A.D.3d 974, 918 N.Y.S.2d 737 (2d Dept. 2011) ...................... 1-3, 10, 11, 45 Zelouf v. Rep. Nat’l Bank of N.Y., 225 A.D.2d 419, 640 N.Y.S.2d 15 (1st Dept. 1996) .......................................... 34 STATUTES, RULES, REGULATIONS N.Y. C.P.L.R. § 327(a) (McKinney’s 2011) .................................................. 8, 10, 14 1 2824700.2 COUNTERSTATEMENT OF QUESTIONS PRESENTED 1. Did the Supreme Court correctly determine that the Defendant satisfied its burden in demonstrating that the forum non conveniens factors militated against accepting jurisdiction over this case? 2. Did the Supreme Court correctly place the burden on the Defendant to show that the forum non conveniens factors militated against accepting jurisdiction over this case? 3. Did the Supreme Court providently exercise its discretion by not conditioning dismissal on the Defendant submitting to jurisdiction in the United Arab Emirates, United Kingdom and/or France? STANDARD OF REVIEW New York law dictates that the determination of a motion to dismiss for forum non conveniens “is in general committed to the discretion of the [trial] court [after] reviewing and evaluating all the pertinent competing considerations.” Silver v. Great Am. Ins. Co., 29 N.Y.2d 356, 361, 328 N.Y.S.2d 398 (1972) (quoting Varkonyi v. S.A. Empresa De Viacao Airea Rio Grandense, 22 N.Y.2d 333, 337, 292 N.Y.S.2d 670 (1968)). This determination rests within the sound discretion of the Supreme Court. Nat’l Bank and Trust Co. v. Banco de Vizcaya, 531 N.E.2d 634, 635, 534 N.Y.S.2d 913, 914 (1988) (affirming the Supreme Court’s decision to dismiss the action based on forum non conveniens); Yun Ra v. Windrow, 82 A.D.3d 974, 918 N.Y.S.2d 737, 738 (2d Dept. 2011) (same); McGuire v. W.R. Schmidt, LLC, 75 A.D.3d 538, 903 N.Y.S.2d 918, 918 (2d Dept. 2 2824700.2 2010) (same); Smolik v. Turner Constr. Co., 48 A.D.3d 452, 453-54, 851 N.Y.S.2d 616, 618 (2d Dept. 2008) (same). The reviewing court will not set aside a determination by the Supreme Court “absent an improvident exercise of that discretion or a failure by the Supreme Court to consider the relevant factors.” Yun Ra, 82 A.D.3d at 734, 918 N.Y.S.2d at 738; McGuire, 75 A.D.3d at 538, 903 N.Y.S.2d at 918; Smolik, 48 A.D.3d at 454, 851 N.Y.S.2d at 618. Indeed, “unless [the trial court] ha[s] excluded consideration of relevant circumstances, there has been no abuse of discretion reviewable by this court.” Banco de Vizcaya, 531 N.E.2d at 635, 534 N.Y.S.2d at 914 (citing Islamic Rep. of Iran v. Pahlavi, 62 N.Y.2d 474, 278 N.Y.S.2d 597 (1984)). PRELIMINARY STATEMENT This case presents a textbook example of the proper application of the forum non conveniens doctrine. New York has no connection to this plainly foreign action. The following facts are undisputed: All three plaintiffs lack residency to New York and this country (Record on Appeal (“Record”) at 13); Although Starwood Hotels and Resorts Worldwide, Inc. (“Starwood”) (a defendant in name only) resides in New York, the Westin Dubai Mina Seyahi (“Mina Seyahi”), the property giving rise to the events relevant to this lawsuit, is owned by Dubai citizens and lacks citizenship to New York and this country (Record at 13-14; 17; 20- 21); 3 2824700.2 None of the events giving rise to this action took place in New York (Record at 17-22; 29); None of the Plaintiffs felt the effects of the alleged negligence in New York (Record at 18-22; 29); A substantial majority of the relevant documents are located outside New York and this country (Record at 18-22; 29); All of the percipient witnesses are located outside New York and this country (Record at 18-22; 29); A substantial majority of the other key witnesses are located outside New York and this country (Record at 18-22; 29); and New York law will not apply to this action. The Supreme Court of New York, County of Westchester (Hon. Sam D. Walker) (the “Supreme Court” or the “Court”) agreed this controversy bore only a slight connection to New York and correctly concluded that “[t]his Court is not obliged or compelled to add to the great demands placed on its limited resources by accepting jurisdiction of [this] case . . . .” (Record at 12). New York courts consider five factors when evaluating whether to dismiss an action for forum non conveniens: (1) the residency of the parties, (2) the location of evidence and nonparty witnesses, (3) the situs of the underlying actionable events, (4) the burden on the New York courts, and (5) the availability of an alternative forum and that forum’s interest in the litigation. Yun Ra, 82 A.D.3d 974, 918 N.Y.S.2d at 738; In re Oxycontin II, 76 A.D.3d 1019, 1021, 908 4 2824700.2 N.Y.S.2d 239, 242 (2d Dept. 2010); Brinson v. Chrysler Fin., 43 A.D.3d 846, 848, 842 N.Y.S.2d 48 (2d Dept. 2007). Here, the Supreme Court analyzed each of these factors and accurately concluded they supported dismissal. (Record at 6-12). First, the residency of the parties factor supports dismissal as all three plaintiffs are foreign citizens. (Record at 13). While Starwood (a defendant in name only) resides in New York, the underlying actionable events occurred at the Mina Seyahi, which is not a New York entity. (Record at 13-14; 17; 20-21). As to the second factor, Plaintiffs have never disputed that the majority of witnesses and documents are located outside New York and the United States. (Record at 18-22; 29). The third factor also supports dismissal because none of the events giving rise to this action took place in New York; rather, they occurred in Dubai (Record at 17-21), the United Kingdom (Record at 17-19), and France (Record at 21-22). The fourth factor, which analyzes the burden on the court, also supports dismissal because a court would have to apply two, if not three, sets of foreign law to this action. See infra Section I.D. Indeed, in granting dismissal, the Supreme Court expressly acknowledged the “great demands” this action would place on its “limited resources.” (Record at 12). Finally, Plaintiffs have three adequate alternative forums, each of which has a stronger interest in this action, available to litigate their claims. See infra Section I.E. Even if Plaintiffs had no alternative forum, this 5 2824700.2 does not preclude dismissal. Pahlavi, 62 N.Y.2d at 478-79, 278 N.Y.S.2d 597 (stating that “we have never held that [the availability of another suitable forum] was a prerequisite for applying the conveniens doctrine”). Despite its failure to cite the standard of appellate review, Plaintiffs’ Appellate Brief (“Plaintiffs’ Brief”) concedes that the Supreme Court considered the relevant factors, but wrongly alleges that the Court “improvidently” exercised its discretion in reaching that determination. See generally Plaintiffs’ Brief. To support their claim that the Supreme Court abused its discretion, Plaintiffs ignore relevant and significant facts opting instead to cite inapposite case law to create a new set of rules for the assessment of the forum non conveniens factors. See e.g. Plaintiffs’ Brief at 22-23 (wholly neglecting to mention the fact that three out of the four parties to this action reside outside New York (and the United States) in its discussion of the “residency of the parties” factor); 32-33 (citing two cases that do not even address forum non conveniens to support their claim that New York courts frequently handle cases that involve foreign documents and witnesses). Contrary to Plaintiffs’ claims, it would have been an improvident exercise of discretion had the Supreme Court adopted Plaintiffs’ new set of rules. For each of the forum non conveniens factors, Plaintiffs have attempted to change the legally-established rules in order to create the perception of error by the Supreme Court. For example, with respect to the availability of an alternative 6 2824700.2 forum factor, Plaintiffs request this Panel overrule established precedent and only grant dismissal when a defendant can affirmatively establish the availability of an alternative forum. Compare Plaintiffs’ Brief at 19-21, with Pahlavi, 62 N.Y.2d at 478-79, 278 N.Y.S.2d 597 (stating that “we have never held that [the availability of another suitable forum] was a prerequisite for applying the conveniens doctrine”); Payne v. Jumeriah Hospitality & Leisure, Inc., 83 A.D.3d 518, 921 N.Y.S.2d 229 (1st Dept. 2011) (“Payne II”) (affirming dismissal based on forum non conveniens despite the fact that plaintiff may have no alternative forum)). In addition, Plaintiffs seek to have this Panel adopt new legal precedent that only permits dismissal when the alternative forum guarantees a litigation format identical to that offered in New York and the United States. Compare Plaintiffs’ Brief at 19-21, with Neuter, Ltd. v. Citibank, 239 A.D.2d 213, 657 N.Y.S.2d 663 (1st Dept. 1997) (holding that the alternative forum’s unavailability of contingency fees was not a determinative factor); Brewers v. Am. Home Prods. Corp., 99 A.D.2d 949, 472 N.Y.S.2d 637 (1st Dept. 1984) (holding that an alternative forum’s lack of recognition of a cause of action does not make the alternative forum inadequate). This would virtually eliminate any court from granting dismissal to a foreign country. As evidenced by numerous cases, New York courts regularly grant dismissal to a foreign forum despite the fact that the foreign forum cannot offer an 7 2824700.2 American-style litigation format or recognize the same causes of action. E.g., Brewers, 99 A.D.2d 949, 472 N.Y.S.2d 637 (reversing the Supreme Court’s ruling and granting defendant’s motion to dismiss despite the fact that transferring the case to the United Kingdom would result in the unavailability of jury trials and contingent attorney’s fees, along with plaintiff’s inability to bring its claims for personal injuries and loss of consortium); Neuter, 239 A.D.2d 213, 657 N.Y.S.2d 663 (granting dismissal despite the fact that contingency fees were not available in the alternative forum); Wyser-Pratte Mgmt. Co. v. Babcock Borsig AG., 7 Misc.3d 1012(A), 801 N.Y.S.2d 244 (Sup. Ct. 2004) (holding that Germany was not an inadequate forum because it did not recognize plaintiff’s claims for punitive damages and RICO violations). Plaintiffs also create a new rule for the residency of the parties factor and urge this Panel to narrow its analysis to just the residency of the defendant. Compare Plaintiffs’ Brief at 22-23, with Adamowicz v. Besnainou, 58 A.D.3d 546, 872 N.Y.S.2d 47 (1st Dept. 2009) (analyzing the residencies of all the parties to the action and dismissing on forum non conveniens to France when only plaintiff and one defendant out of numerous other corporate defendants were New York citizens); Fin. Guar. Ins. Co. v. IKB Deutsche Industrie AG, 2008 WL 5478808 (N.Y. Sup. Ct. Dec. 29, 2008) (analyzing the residencies of all six parties and dismissing on forum non conveniens to England when only one of the six was a 8 2824700.2 New York citizen). Plaintiffs then suggest that if the defendant resides in New York, this factor goes against dismissal, notwithstanding the residencies of any other parties. Plaintiffs’ Brief at 22. This altered analysis and conclusion directly conflict with New York’s forum non conveniens statute, which provides “[t]he domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action.” N.Y. C.P.L.R. § 327(a) (McKinney 2011). Moreover, a forum non conveniens analysis presupposes jurisdiction over the defendant; thus, Plaintiffs’ new rule would find this factor never supports dismissal when the court has jurisdiction over a defendant. Pahlavi, 62 N.Y.2d at 478-79, 278 N.Y.S.2d 597 (stating that forum non conveniens “permits a court to stay or dismiss such actions where it is determined that the action, although jurisdictionally sound, would be better adjudicated elsewhere”) (emphasis added). Quite simply, Plaintiffs’ new rules for the assessment of the forum non conveniens factors are not supported by New York case law. As such, the Supreme Court did not improvidently exercise its discretion by failing to follow the machinations Plaintiffs created from whole cloth. In fact, had the Supreme Court followed Plaintiffs’ new rules, that would have qualified as an improvident exercise of discretion. The Supreme Court correctly adhered to and applied the basic tenets of established New York case law. Unfortunately for Plaintiffs, “relief cannot 9 2824700.2 properly be afforded by a New York forum with little if any nexus to the controversy and the taxpayers of this State should not be compelled to assume the heavy financial burden attributable to the cost of administering the litigation contemplated when their interest in the suit and the connection of its subject matter to the State of New York is so ephemeral.” Pahlavi, 62 N.Y.2d at 483, 278 N.Y.S.2d 597. Assessed under long-standing New York case law, the Supreme Court’s Decision and Order (“Dismissal Decision”) (Record at 4-12) was a provident exercise of discretion. ARGUMENT Plaintiffs’ Brief makes one point abundantly clear: New York has no connection to this dispute. Plaintiffs are not citizens of New York, let alone the United States. None of the events giving rise to this action took place in New York. None of the Plaintiffs received medical treatment for their alleged injuries in New York or the United States. A large majority of the relevant documents and key witnesses are likewise outside New York and the United States. Foreign law will likely apply to this action. Regardless of the availability of an alternative forum, dismissal for forum non conveniens is proper. Payne II, 83 A.D.3d 518, 921 N.Y.S.2d 229. 10 2824700.2 The forum non conveniens doctrine, codified in C.P.L.R. § 327(a), “rests, in large part, on considerations of ‘public policy’ (citation omitted) and, even though there be no prohibition, statutory or otherwise, against maintaining a particular action in this State, [New York] courts should not be under any compulsion to add to their heavy burdens by accepting jurisdiction of a cause of action having no substantial nexus with New York.” Silver, 29 N.Y.2d at 361, 328 N.Y.S.2d 398. C.P.L.R. § 327(a) provides: 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. The Second Department Appellate Division places the “determination of a motion to dismiss on the ground of forum non conveniens [ ] within the sound discretion of the trial court and such determination will not be disturbed ‘absent an improvident exercise of that discretion or a failure to consider relevant factors.’” Smolik, 48 A.D.3d at 453-54, 851 N.Y.S.2d at 618 (affirming the Supreme Court’s decision to dismiss the action based on forum non conveniens) (citing (Brinson, 43 A.D.3d at 848, 842 N.Y.S.2d 48)); Banco de Vizcaya, 531 N.E.2d at 635, 534 N.Y.S.2d at 914; Yun Ra, 82 A.D.3d 974, 918 N.Y.S.2d at 738; McGuire, 75 A.D.3d 538, 903 N.Y.S.2d at 918. 11 2824700.2 Among the factors the Supreme Court should consider include: (1) the residency of the parties, (2) the location of evidence and non-party witnesses, (3) the situs of the underlying actionable events, (4) the burden on the New York courts, and (5) the availability of an alternative forum and that forum’s interest in the litigation. Yun Ra, 82 A.D.3d 974, 918 N.Y.S.2d at 738; In re Oxycontin II, 76 A.D.3d at 1021, 908 N.Y.S.2d at 242; see Brinson, 43 A.D.3d at 848, 842 N.Y.S.2d 48. I. Point 1: THE SUPREME COURT CONSIDERED ALL RELEVANT FACTORS AND PROVIDENTLY EXERCISED ITS DISCRETION IN DISMISSING PLAINTIFFS’ COMPLAINT Plaintiffs’ Brief fails to identify a single one of the five required factors in a forum non conveniens analysis that the Supreme Court neglected to consider. Instead, Plaintiffs request this Panel find that the Supreme Court allegedly abused its discretion in assessing the relevant factors. Plaintiffs base their claims of error their own contrived rules for each factor. In sharp contrast to Plaintiffs’ legally- unsupported assertions, the Supreme Court applied relevant and applicable New York case law and did not abuse its discretion in determining that Starwood satisfied its burden to justify dismissal. A. The Residency of the Parties Supports the Supreme Court’s Decision The residency of the parties is an important factor in a court’s forum non conveniens analysis. Pahlavi, 62 N.Y.2d at 479, 478 N.Y.S.2d 597. Applying its 12 2824700.2 altered version of this factor, Plaintiffs’ Brief only discusses the residency of one party – the defendant. Plaintiffs’ Brief at 22-23. Attributing no weight to any of the three Plaintiffs’ residencies – Mr. Boyle (United Kingdom), Mrs. Boyle (United Kingdom), and Ms. Nogues (France) – Plaintiffs’ Brief finds error with the Supreme Court’s refusal to do the same. Unfortunately for Plaintiffs, New York case law analyzes the residencies of all the parties to the action. See e.g. Adamowicz, 58 A.D.3d 546, 872 N.Y.S.2d 47 (dismissing on forum non conveniens to France when only plaintiff and one defendant out of numerous other corporate defendants were New York citizens); Blueye Navigation, Inc. v. Den Norske Bank, 239 A.D.2d 192, 658 N.Y.S.2d 9 (1st Dept. 1997) (dismissing on forum non conveniens to England when one plaintiff was a citizen of New York and all other plaintiffs and all defendants were citizens of foreign jurisdictions); IKB Deutsche, 2008 WL 5478808 (analyzing the residencies of all six parties and dismissing on forum non conveniens to England when only one of the six was a New York citizen). Importantly, this factor allows the court to analyze the convenience of a New York forum from each party’s perspective. Accordingly, when the plaintiff is a foreign citizen “its choice of forum is entitled to less deference because the assumption that the chosen forum is more convenient to plaintiff is less reasonable.” IKB Deutsche, 2008 WL 5478808 (citing Piper Aircraft Co. v. 13 2824700.2 Reyno, 454 US 235, 255-56 (1981)) (dismissing on forum non conveniens to England when only one of the six parties was a New York citizen); Pahlavi, 62 N.Y.2d at 482, 478 N.Y.S.2d 597 (noting that plaintiffs’ choice of New York as a forum was entitled to less weight because plaintiffs were nonresidents); Record at 8 (Dismissal Decision stating that “a non resident plaintiff must ‘show more than its own convenience for selecting the forum when the choice imposes a heavy burden on the court and the defendant’” (citing Pahlavi, 62 N.Y.2d at 482, 478 N.Y.S.2d 597)). Given that all three plaintiffs reside in countries thousands of miles away from this Court, common sense dictates that they selected this forum for reasons other than their own convenience. See IKB Deutsche, 2008 WL 5478808. In fact, Plaintiffs admitted that they did not select New York for convenience reasons. Plaintiffs’ Brief at 16 (stating that they demonstrated “legitimate reasons” for selecting a New York forum and “[u]nder no circumstances could these reasons be deemed for Plaintiffs’ convenience”). Consequently, Plaintiffs’ selection of a New York forum is entitled to minimal deference. Plaintiffs’ Brief devotes its entire discussion of this factor to Starwood and its residency. While Plaintiffs accurately note that Starwood is headquartered in New York, Plaintiffs attempt to distract this Court from two critical issues, both of which the Dismissal Decision identified: (1) a defendant’s New York headquarters 14 2824700.2 does not preclude dismissal; and (2) it is the alleged actions (or inactions) at the Mina Seyahi in Dubai, not Starwood in New York, that form the heart of this dispute. (Record at 7 (citing to C.P.L.R. § 327(a) when stating that “[a]lthough defendant is a resident of New York, ‘the domicile or residence in this state of any party to the action shall not prevent the court from staying or dismissing the action); Record at 7 (noting that the events underlying the claim occurred in Dubai and Europe, not New York)). 1 Thus, the fact that Starwood’s headquarters lie in this State does not preclude dismissal. In addition, Plaintiffs’ suggestion that a New York forum would be convenient for Starwood is severely undercut by the fact that none of the actions precipitating Plaintiffs’ alleged negligence, breach of contract, and loss of consortium claims occurred in this State. Rather, as Plaintiffs’ very own Complaint suggests, these events occurred in Dubai, England and France. (Record at 17-30). Plaintiffs’ foreign residencies coupled with the lack of importance placed on Starwood’s headquarters weigh heavily in favor of dismissal. 1 Plaintiffs’ Brief also baselessly asserts that the Supreme Court “virtually ignored the fact that Defendant’s principal place of business and worldwide headquarters is located in Westchester County, New York.” Plaintiffs’ Brief at 11-12. In contrast to Plaintiffs’ assertion, the Supreme Court did not ignore Starwood’s residency in New York; in fact, the Court acknowledged this fact on two separate occasions. (Record at 5, 7). 15 2824700.2 B. The Location of the Evidence and Witnesses Supports the Supreme Court’s Decision Fundamental due process demands parties the ability to access and discover documentary evidence and witnesses. These due process concerns coupled with practical and logistical burdens involved with accessing and retrieving evidence and witnesses located in foreign countries, mandate a thorough assessment of this factor. In re Oxycontin II, 76 A.D.3d at 1021, 908 N.Y.S.2d 239. When that assessment reveals that an overwhelming amount of discovery will necessarily take place in a foreign jurisdiction, this factor supports dismissal of the action. See, e.g., Certain Underwriters at Lloyd’s v. Mobil Corp., 303 A.D.2d 259, 260, 756 N.Y.S.2d 204, 205 (1st Dept. 2003) (affirming dismissal of an action because the potential liability for the underlying action arose in an alternative forum and a significantly greater number of witnesses would be situated there); Continental Ins. Co. v. Amax, Inc., 192 A.D.2d 391, 596 N.Y.S.2d 370, 370-71 (1st Dept. 1993) (affirming dismissal because the sites at issue and related proof were located in an alternative forum); Employers Ins. of Wausau v. Primerica Holdings, 199 A.D.2d 178, 178-79, 605 N.Y.S.2d 89, 90 (1st Dept. 1993) (affirming dismissal because the relevant sites and underlying actions were located in an alternative forum and because “[t]his would presumably require the appearances of numerous witnesses from, and subpoenas issued by” that forum); Avnet, Inc. v. Aetna Cas. & Sur. Co., 16 2824700.2 160 A.D.2d 463, 464, 554 N.Y.S.2d 134, 135-36 (1st Dept. 1990) (affirming partial dismissal because “witnesses will most likely be located in California”). Plaintiffs’ Brief asserts that Starwood made only “broad allegations” with respect to the location of documents and witnesses. Plaintiffs’ Brief at 24-25. In sharp contrast, Starwood specifically identified both documents and witnesses that it seeks to discover in its previous motions. For clarity, Starwood has, again, identified the specific documents and witnesses it seeks infra Sections I.B.1 and I.B.2. 1. The Documents Are Located Outside New York Rather than analyze this factor under established New York law, Plaintiffs attempt to create a new rule. Plaintiffs interpret this factor as requiring a defendant to prove that it will wholly lack access to documents located outside this Court’s jurisdiction if the action remained in this forum. 2 Plaintiffs’ Brief at 28-29. No New York court has ever required a defendant to prove that it will wholly lack access to evidence. In contrast, this factor merely queries the location of evidence so as to determine the convenience (as the forum non conveniens name itself implies) of litigation in the jurisdiction. Here, Plaintiffs have never countered 2 The absurdity of this assertion is even more apparent in forum non conveniens cases where the alternative forum is another state as opposed to a foreign country. In those cases, a New York court could never find this factor supported dismissal because parties could always easily obtain documents located in another state with a New York subpoena. 17 2824700.2 Starwood’s assertions that the majority of documents necessary for this case and its defense are located outside New York in foreign jurisdictions. To support Plaintiffs’ new rule for this factor, Plaintiffs’ Brief claims the Hague Convention on Taking Evidence Abroad in Civil and Commercial Matters (“Hague Convention”) would allow Starwood to discover evidence from France and the United Kingdom. Plaintiffs’ Brief at 28-29. This fact, however, adds little to the analysis for two reasons. First, because the United Arab Emirates is not a signatory to the Hague Convention, Starwood (as well as Plaintiffs) will have no legal mechanism for obtaining documentary evidence in the control of Dubai- based entities, individuals and the government. As a result, Starwood will have no access to this potentially crucial causation evidence. Second, as mentioned above, this fact only supports Plaintiffs’ claim if the analysis required a defendant to prove that litigating in this jurisdiction would preclude it from accessing documentary evidence located outside New York. New York courts, however, have never applied this altered rule. Rather, this factor merely assesses the location of the majority of documents necessary in the action. See, e.g., Brewers, 99 A.D.2d at 950, 472 N.Y.S.2d 637 (dismissing action to the United Kingdom because, inter alia, the majority of the documents were located in England); Davidson Extrusions, Inc v. Touche Ross & Co., 131 A.D.2d 421, 516 N.Y.S.2d 171 (2d Dept. 1987) (dismissing action to Cyprus because, inter alia, the 18 2824700.2 majority of the documents were located in Cyprus). If anything, Plaintiffs’ mention of the Hague Convention bolsters Starwood’s claim that the documents necessary in this case are located outside this court’s jurisdiction, and it would require extraordinary measures in order to retrieve them. Plaintiffs’ Brief also suggests that the Supreme Court erred because it failed to give adequate wait to the Record, which “establishes a significant amount of Defendant’s activities concerning the operations of the [Mina Seyahi] . . . [that] took place at Defendant’s worldwide headquarters in New York.” Plaintiffs’ Brief at 25 (emphasis added). Interestingly, however, the Record contains a mere two references to documents involving Starwood: (1) a single press release issued by Starwood immediately following the first reports of an incident; and (2) a response to concerned travelers issued by Starwood. (Record at 24-25). Contrary to Plaintiffs’ inflated claim, this demonstrates that the Record is practically devoid of documents in New York, and these two documents pale in comparison to the hundreds located in foreign jurisdictions. As Starwood has previously detailed, these foreign documents include: Medical records, test results and notes from treating physicians of Mr. Boyle at the Mayday National Health Clinic in Croydon, United Kingdom. (Record at 18); Medical records, test results and notes from treating physicians of Mr. Boyle at King Edward VII Hospital in the United Kingdom. (Record at 18-20); 19 2824700.2 Medical records, test results and notes from treating physicians of Ms. Nogues at the clinic (or hospital) she visited in Dubai. (Record at 21); Medical records, test results and notes from treating physicians of Ms. Nogues at the clinic she visited in France. (Record at 21-22); Medical records, test results and notes from treating physicians of Mrs. Boyle. (Record at 29); Medical records, test results and notes from treating physicians or therapists Mr. Boyle has visited since his release at King Edward VIII Hospital. (Record at 20); Medical records, test results and notes from treating physicians or therapists Ms. Nogues has visited since her treatment with Dr. Nadaud and Dr. Bruno. (Record at 22); Documentation and water quality reports generated from any other venue that Mr. Boyle or Ms. Nogues visited during their stay in Dubai (Record at 17, 20); Water quality reports generated by the authorities in Dubai performed at the Mina Seyahi (Record at 57-58); 3 and Any additional Dubai governmental water quality records either generated in connection with the Mina Seyahi or any neighboring properties (Record at 17, 20, 57-58). These documents are integral to Starwood’s defense, yet it would create an undue financial and procedural burden upon Starwood to obtain these from their non- party custodians with a New York subpoena. 3 In addition, the European Working Group for Legionella Infections (“EWGLI”), which is a group based in London that studies the epidemiological and microbiological aspects of legionnaires’ disease, also assisted in the investigation and testing at the Mina Seyahi. Any relevant documents EWGLI collected are likely located in their London-based headquarters. 20 2824700.2 2. The Witnesses Are Located Outside New York Plaintiffs assert that the Supreme Court erred by accepting Starwood’s “broad allegations” regarding the identification and availability of witnesses located abroad. Plaintiffs’ Brief at 25. Plaintiffs, however, are plainly mistaken. First, Starwood has clearly identified non-party witnesses located abroad several times. Again, Starwood will seek testimony from the following non-parties: Health officials residing in Dubai (Record at 57-58); Dr. Hassan, who first treated Mr. Boyle at Mayday National Health Clinic in Croydon, United Kingdom (Record at 18); Dr. J.J. Massani, who treated Mr. Boyle at King Edward VII Hospital in the United Kingdom (Record at 18); Dr. Stuart Webb, who treated Mr. Boyle at King Edward VII Hospital in the United Kingdom (Record at 18-20); Mr. Boyle’s daughter, friends and any other family members that observed his condition in the United Kingdom (Record at 18-20); The physician who treated Ms. Nogues in Dubai (Record at 21); Dr. Veronique Nadaud, who treated Ms. Nogues in France (Record at 21-22); Dr. Journe Bruno, who treated Ms. Nogues in France (Record at 22); Ms. Nogues’ son and friend who observed her condition in France (Record at 20-22); Any physician or therapist who treated Mrs. Boyle in the United Kingdom (Record at 29); Mrs. Boyle’s daughter, friends and any other family members that observed her condition in the United Kingdom (Record at 29); 21 2824700.2 Scientists and any other government officials in Dubai that assisted in the testing of the water at the Mina Seyahi (Record at 57-58); Scientists hired by the Mina Seyahi in Dubai that performed tests on the water at the Mina Seyahi (Record at 57-58); Outside consultants or experts hired by the Mina Seyahi that assisted in ensuring that the Mina Seyahi’s water system was well-maintained (Record at 57-58); Independent contractors, architects, engineers, builders and plumbers that aided in the design and building of the Mina Seyahi’s water system (Record at 57-58); Owners of neighboring facilities and any other venue that Mr. Boyle and/or Ms. Nogues visited during their stay in Dubai (Record at 17, 20, 57-58 ); and Water quality experts hired by any neighboring facility or any other venue that Mr. Boyle and/or Ms. Nogues visited during their stay in Dubai (Record at 17, 20, 57-58). Second, Plaintiffs are, again, attempting to create new rules by claiming that Starwood needs to make a showing of witnesses’ availability. Contrary to Plaintiffs’ suggestions, this factor focuses solely upon the location of likely witnesses. See, e.g., Avnet, Inc., 160 A.D.2d at 464, 554 N.Y.S.2d at 135-36 (affirming partial dismissal because, inter alia, the “witnesses will most likely be located in California”); Brewers, 99 A.D.2d at 950, 472 N.Y.S.2d 637 (dismissing action to the United Kingdom because, inter alia, the majority of the witnesses were located in England). Thus, Starwood has not provided specific information regarding the availability of these named witnesses because this factor does not 22 2824700.2 require any sort of showing of witness availability, especially when the witnesses have no relation to Starwood. Plaintiffs’ Brief supports its assertion that a defendant is required to make a showing as to witness availability by citing a single case - Anagnostou v. Stifel, 204 A.D.2d 61, 611 N.Y.S.2d 525 (1st Dept. 1984). While Plaintiffs’ Brief cites this case for its strict language regarding witness availability, the Anagnostou court explained its heightened severity in the treatment of that particular case by stating that: Initially, we note that defendants have a particularly high burden to carry in light of the substantial delay in not raising their argument that New York is an inappropriate forum until three years had elapsed from commencement of the action and only after a significant degree of activity had already taken place, including defendants’ unsuccessful motion for summary judgment and the commencement of discovery. Anagnostou, 204 A.D.2d at 61, 611 N.Y.S.2d 525 (emphasis added). In contrast, Starwood filed its motion to dismiss within five weeks of being served Plaintiffs’ Complaint. No other motions have been filed and no discovery has been undertaken. Thus, Anagnostou has no precedential effect here. As they did in their discussion of the location of the documents, Plaintiffs suggest that the United Kingdom’s and France’s participation in the Hague Convention operate so as to undercut Starwood’s claim that this factor weighs in favor of dismissal. Plaintiffs’ Brief at 28-29. Again, however, this factor does not 23 2824700.2 require a defendant to show that Starwood completely lacks access to a majority of the witnesses. Rather, it merely analyzes the location of the majority of the witnesses and the burden associated with compelling foreign non-parties to appear. Here, Plaintiffs have never refuted Starwood’s claim that the majority of the witnesses in this action reside outside New York (and this country). In sum, as the Supreme Court correctly concluded, there is no question that the overwhelming majority of documents and witnesses are located in foreign jurisdictions. Starwood is entitled to access these documents and witnesses. The substantial burden placed on the parties, the nonparty witnesses, and this Court in having to subpoena multiple foreign jurisdictions, follow multiple foreign country’s laws, hire counsel in several foreign countries to procure and serve the foreign subpoenas, and coordinate flights from foreign jurisdictions (both for counsel to travel for depositions and the witnesses in having to travel to New York for attendance at trial) is practically insurmountable and weighs heavily in favor of dismissal. C. The Situs of the Underlying Events Supports the Supreme Court’s Decision “[T]ransaction[s] out of which the cause of action arose occurred primarily in a foreign jurisdiction” weigh in favor of dismissal of the action based on forum non conveniens. Pahlavi, 62 N.Y.2d at 479; see also World Point Trading PTE, Ltd. v. Credito Italiano, 225 A.D.2d 153, 159, 649 N.Y.S.2d 689 (1st Dept. 1996). 24 2824700.2 None of the events described in Plaintiffs’ Complaint took place in New York, but rather occurred Dubai (Record at 17-21), France (Record at 21-22), and United Kingdom (Record at 17-19). In an attempt to change the rule for this factor, Plaintiffs’ cite Arellano v. Starwood Hotels & Resorts Worldwide, Inc., 448 F. Supp. 2d 520, 522 (S.D.N.Y. 2006) to support their argument that New York is the situs of the underlying acts. Plaintiffs’ Brief at 23. In that case, as opposed to this action, the issue was whether under Maryland corporate law Starwood could be liable for the acts of its subsidiaries. Arellano, 448 F. Supp. 2d at 528. Here, however, Plaintiffs’ damages claims relate to underlying actions alleged to have occurred at the Mina Seyahi only. New York courts frequently dismiss actions for forum non conveniens when the situs is outside this jurisdiction. Pahlavi, 62 N.Y.2d at 479, 478 N.Y.S.2d 597 (affirming dismissal of the action when the underlying events occurred in Iran); Brewers, 99 A.D.2d 949, 472 N.Y.S.2d 637 (concluding that the mere fact that New York was the defendant’s principal place of business, as well as the place where decisions were made regarding business abroad, was not sufficient to defeat forum non conveniens motion where the remaining facts and circumstances surrounding the action related to in England); Davidson Extrusions, Inc, 131 A.D.2d 421, 516 N.Y.S.2d 171 (affirming dismissal of breach of contract and fraud 25 2824700.2 action based on a transaction that occurred almost entirely in Cyprus); Globalvest Mgmt. Co. v. Citibank, N.A., 7 Misc.3d 1023(A), 5-6, 801 N.Y.S.2d 234 (Sup. Ct. 2005) (granting defendant’s motion to dismiss for forum non conveniens for tort claim that arose out of action and conduct in Brazil); Citigroup Global Markets, Inc. v. Metals Holding Corp., 12 Misc.3d 1168(A), 6, 820 N.Y.S.2d 841 (Sup. Ct. 2006) (granting defendant’s motion to dismiss action for claim that arose out of events in the Bahamas); Payne II, 83 A.D.3d 518, 921 N.Y.S.2d 229 (granting defendant’s motion to dismiss for forum non conveniens for tort claims that arose out of action in Dubai); Healy v. Renaissance Hotel Operating Co., 282 A.D.2d 363, 724 N.Y.S.2d 719 (1st Dept. 2001) (reversing trial court’s decision and granting defendant’s motion to dismiss for forum non conveniens for claims that arose out of action in Grenada); Foster Wheeler Iberia S.A. v. Mapfre Empresas S.A.S., 15 Misc.3d 1112(A), 839 N.Y.S.2d 433 (Sup. Ct. 2007) (granting defendant’s motion to dismiss for forum non conveniens for claims that arose out of action in Spain); Wyser-Pratte, 7 Misc.3d 1012(A), 801 N.Y.S.2d 244, (granting defendant’s motion to dismiss for forum non conveniens for claims that arose out of action in Germany); Millicom Intern. Cellular S.A. v. Simon, 247 A.D.2d 223, 668 N.Y.S.2d 591 (1st Dept. 1998) (granting defendant’s motion to dismiss for forum non conveniens for claims that arose out of action in the Philippines); Neuter, 239 A.D.2d 213, 657 N.Y.S.2d 663 (granting defendant’s 26 2824700.2 motion to dismiss for forum non conveniens for claims that arose out of action in the Switzerland). Plaintiffs’ Brief claims that the Supreme Court erred by determining that “the events occurred in Europe and Asia and Starwood’s post incident press releases and monitoring the situation from its White Plains office do not make White Plains the situs of the harm.” Plaintiffs’ Brief at 24 (citing Record at 10). Plaintiffs’, however, ignore the preceding sentence in the Dismissal Decision: “[i]t is [ ] clear from the facts underlying the claim that New York is not the situs of the events giving rise to this cause of action.” (Record at 10). The Supreme Court stated, and Plaintiffs cannot deny, the events leading up to the alleged harm took place in Dubai. The alleged harm occurred in Dubai at the Mina Seyahi. The harm was felt in Plaintiffs’ respective home countries – United Kingdom and France. No cognizable claim can be made that the situs of this action is New York. As a result, the Supreme Court committed no error. D. The Burden Upon New York Courts Supports the Supreme Court’s Decision New York courts regularly assess the burden placed on the already overcrowded and taxed New York judicial system in their forum non conveniens analyses. Pahlavi, 62 N.Y.2d at 480-83, 478 N.Y.S.2d 597 (recognizing the “substantial financial and administrative burden on the New York courts” imposed if litigation continued in New York). When analyzing this factor, New York courts 27 2824700.2 have made clear “the applicability of foreign law is an important consideration in determining a forum non conveniens motion” and weighs in favor of dismissal of the action. Shin-Etsu Chem. Co., Ltd. v. 2022 ICICI Bank, Ltd., 9 A.D.3d 171, 178, 777 N.Y.S.2d 69 (1st Dept. 2004) (reversing denial of forum non conveniens motion); Kashyap v. Babcock & Wilcox, 268 A.D.2d 348, 349, 702 N.Y.S.2d 267, 268 (1st Dept. 2000) (noting that “in view of . . . the burden that the application of [foreign] law would place on New York’s courts, the motion court’s determination that New York would be an inconvenient forum was a proper exercise of discretion”); DeTorres v. Arocena, 155 Misc.2d 52, 57, 587 N.Y.S.2d 495, 498 (Sup. Ct. 1992) (stating that “the necessary application of the law of another forum is also an important consideration, especially where the applicable law is that of a foreign state, whose own courts are better equipped to interpret and apply their own law”). New York courts “should not be under any compulsion to add to their heavy burdens by accepting jurisdiction of a cause of action having no substantial nexus with New York.” Silver, 29 N.Y.2d at 361, 328 N.Y.S.2d 398. Plaintiffs’ Brief again attempts to change the rule for this factor and finds error with the Supreme Court’s refusal to follow suit. Plaintiffs’ Brief at 31-32. First, Plaintiffs assert that “any choice of law issues presented by this litigation are not yet ripe for adjudication.” Id. at 31. Yet even a cursory glance at a case involving a foreign element reveals the court’s discussion of the likely application 28 2824700.2 of foreign law. See, e.g., Shin-Etsu Chem Co., 9 A.D.3d at 178, 777 N.Y.S.2d 69 (dismissing action on forum non conveniens ground because, inter alia, Indian law would apply to the dispute); Globalvest Mgmt., 7 Misc.3d 1023(A) at 7-8, 801 N.Y.S.2d 234 (citing Pahlavi, 62 N.Y.2d at 480) (noting that “likely applicability of Iranian law” supports dismissal on forum non conveniens grounds); Tilleke & Gibbins Int’l., Ltd v. Baker & McKenzie, 302 A.D.2d 328, 756 N.Y.S.2d 179 (1st Dept. 2003) (holding that an action involving Thai evidence and applying Thai law would be an inordinate burden upon a New York court); Neuter, 239 A.D.2d 213, 657 N.Y.S.2d 663 (dismissing action on forum non conveniens grounds because of, inter alia, the application of Swiss law); Davidson Extrusions, Inc, 131 A.D.2d 421, 516 N.Y.S.2d 230 (dismissing action on forum non conveniens grounds because, inter alia, Cypriot law would apply to the dispute); PT United Can Co. v. Crown Cork & Seal Co., 1997 WL 31194 (S.D.N.Y. Jan. 28, 1997) aff’d 138 F.3d 65 (2nd Cir. 1998) (dismissing action on forum non conveniens grounds because, inter alia, Indonesian law would likely apply to the suit); Wyser-Pratte, 7 Misc.3d 1012(A), 801 N.Y.S.2d 244 (dismissing action on forum non conveniens grounds because, inter alia, German law would apply to the dispute); Foster Wheeler, 839 N.Y.S.2d 433, 15 Misc.3d 1112(A) (dismissing action on forum non conveniens grounds because, inter alia, Spanish law would apply to the dispute). 29 2824700.2 Second, Plaintiffs claim that Starwood’s assertions regarding the application of foreign law amounts to nothing more than “broad allegations” that are insufficient for the purpose of “demonstrating a plaintiff’s choice of forum is inappropriate.” Plaintiffs’ Brief at 31. Contrary to Plaintiffs’ claims, Starwood plainly and specifically stated why this action would require application of at least two sets of foreign law, and the Supreme Court agreed. Namely, New York law applies an interest analysis to determine the applicable law. Schulz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189, 491 N.Y.S.2d 90 (1985). Typically, the result of this analysis will lead the court to apply the law of the locus of the tort. Id. In this case, the court will view the locus of the tort as the United Arab Emirates for all claims save claim three, as this is where the alleged harm occurred. Or, the Court may choose to apply the law of the United Kingdom to claims one and two and the law of France to claims four and five. Claim three will likely be governed by the law of the United Kingdom as this is where the alleged harm was felt. Third, Plaintiffs assert that “foreign law will not necessarily apply in this case.” Plaintiffs’ Brief at 31. Plaintiffs reference the Arellano case in a footnote to support this position. As Starwood has previously addressed (supra Section I.C.), the Arellano case that Plaintiffs cite is inapposite. The Arellano case deals specifically with issues of corporate liability, whereas, here, Plaintiffs’ causes of action unquestionably arise from events in Dubai, England and/or France. 30 2824700.2 Plaintiffs’ Complaint fails to allege any wrongdoing in New York. As such, foreign law will necessarily apply in this case. Finally, Plaintiffs claim that the Supreme Court erred by finding this factor favored dismissal because New York courts frequently apply foreign law. Plaintiffs’ Brief at 31-33. Again, the cases Plaintiffs cite are inapposite. Three of the cases deal with the application of another state’s laws, rather than another country’s laws. Kronengold v. Hilton Hotels Corp., 166 A.D.2d 325, 327, 560 N.Y.S.2d 1022 (1st Dept. 1990) (proposed application of Florida law); Bock v. Rockwell Mfg. Co., 151 A.D.2d 629, 630, 543 N.Y.S.2d 89 (2d Dept. 1989) (proposed application of Connecticut law); Continental Ins. Co. v. Garlock Sealing Techs. LLC, 23 A.D.3d 287, 805 N.Y.S.2d 18 (1st Dept. 2005) (proposed application of Pennsylvania law). Plaintiffs also cite cases that do not even involve a forum non conveniens analysis or the forum non conveniens analysis lacks a choice of law discussion. J. Zeevi & Sons v. Grindlays Bank (Uganda), 37 N.Y.2d 220, 371 N.Y.S.2d 892 (1975) 4 (case does not involve a forum non conveniens disucssion as jurisdiciton is assumed by the court purusuant to a New York banking law); Animalfeeds Int’l Inc. v. Banco Espirito Santo E. Comercial De Lisboa, 101 Misc.2d 379, 420 N.Y.S.2d 954 (Sup. Ct. 1979) (case does not involve a forum non conveniens 4 Plaintiffs’ Brief inaccurately cites this as J. Reevi and Sons, Ltd. v. Grindlays Bank (Uganda) Limited, 37 N.Y.2d, 371 N.Y.S.2d 892. Plaintiffs’ Brief at 33. 31 2824700.2 discussion as jurisdiction is assumed pursuant to a prior order); Sambee Corp. v. Moustafa, 216 A.D.2d 196, 626 N.Y.S.2d 664 (1st Dept. 1995) 5 (while case involves a forum non conveniens discussion, the court does not engage in a choice of law discussion). Finally, in the remaining cases Plaintiffs cite, the court would only have to apply the law of one foreign country, not two or three. Anagnostou, 204 A.D.2d 61, 611 N.Y.S.2d 525 (proposed application of Greek law); Mionis v. Bank Julius Baer & Co., 9 A.D.3d 280, 282, 780 N.Y.S.2d 323, 325 (1st Dept. 2004) (proposed application of Greek law); Intertec Contracting A/S v. Turner Steiner Int’l, 6 A.D.3d 1, 774 N.Y.S.2d 14 (1st Dept. 2004) (proposed application of Shri Lanka law); Pentifallo v. Hilton of Panama, 86 A.D.2d 583, 584, 447 N.Y.S.2d 1, 2 (1st Dept. 1982) (proposed application of Greek law). Starwood does not claim that New York courts are incapable of applying the law of a foreign state or country, but often the courts of the foreign jurisdictions “are better suited to do so.” See Keller v. Pfizer, Inc., 2008 WL 351001, *4 (N.Y. Sup. Ct. Feb. 8, 2008) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509 (1984)). The application of one foreign country’s law is a burden; thus, the application of two or three foreign laws only serves to amplify this burden. As New York has no 5 Plaintiffs’ Brief inaccurately cites this as Sambee Corp. v. Moustafa, 216 A.D.2d 196, 626 N.Y.S. 664 (1st Dept. 1995). Plaintiffs’ Brief at 33. 32 2824700.2 interest in the dispute, the Supreme Court correctly determined that this is simply not a burden worth bearing. E. The Availability of An Alternative Forum Supports the Supreme Court’s Decision The final factor that New York courts will assess in a forum non conveniens analysis is the availability of an alternative forum and that forum’s interests in the issues being litigated. Pahlavi, 62 N.Y.2d at 480-82, 478 N.Y.S.2d 597; Primerica Holdings, 199 A.D.2d at 178-79, 605 N.Y.S.2d at 90. While the Court of Appeals has declared the importance of this factor, it has affirmatively stated that “proof of the availability of another forum [should not] be required in all cases before dismissal is permitted.” Pahlavi, 62 N.Y.2d at 482, 478 N.Y.S.2d 597 (affirming dismissal of the action on forum non conveniens despite the complete unavailability of an alternative forum for plaintiff’s claim and expressly disclaiming New York case law that required proof of an alternative forum as a precondition to dismissal). This Pahlavi principle was reaffirmed just last year by the First Department of the Appellate Division. Payne II, 83 A.D.3d 518, 921 N.Y.S.2d 229 (affirming the trial court’s dismissal for forum non conveniens “even though plaintiff may have no alternative forum”). The “alleged absence [of an alternative foum] does not require the court to retain jurisdiction.” Pahlavi. 62 N.Y.2d at 481, 478 N.Y.S.2d 597. 33 2824700.2 Because Plaintiffs’ attempt to create a new rule for this factor, Plaintiffs’ Brief wholly ignores Pahlavi and how, even assuming the Supreme Court incorrectly found that alternate forums were availabile, this warrants a different outcome. In other words, because Pahlavi dictates that the unavailability of an alternate forum is not a precondition to dismissal, it is of no consequence whether the Supreme Court determines an alternate forum exists. See Payne II, 83 A.D.3d 518, 921 N.Y.S.2d 229. Plaintiffs’ Brief also ignores the second part of this factor: whether the alternative forums have a significant interest in this litigation. Brewers, 99 A.D.2d 949, 472 N.Y.S.2d 637 (stating that the United Kingdom’s interest in the litigation outweighs any interest by New York). Without question, the interests of New York in this litigation pale in comparison to those of Dubai, England and France. The United Arab Emirates has a formidable interest in this litigation as the at-issue actions and injury occurred in that country and the Mina Seyahi is a Dubai entity. To maintain its favorable image in the tourism industry, the United Arab Emirates has a substantial interest in ensuring that conduct occurring in its country is then redressed there and that tourists are in safe care. (See Record at 119 (letter from Ms. Panicker (Mr. Boyle’s Dubai attorney) claiming that Starwood’s alleged actions “are directly against the national interest as [Starwood is] directly putting the U.A.E. tourism industry and government’s interest at stake; which in turn 34 2824700.2 brought the attention of His Highness”)). In addition, the United Kingdom and France both have a substantial interest in this litigation by ensuring that their citizens have an opportunity to have their claims redressed. 1. England is an Adequate Alternative Forum New York courts frequently dismiss actions for forum non conveniens to England and the United Kingdom. See, e.g., Tooth v. Georgiou, 69 A.D.3d 464, 895 N.Y.S.2d 33 (1st Dept. 2010) (dismissing to England); IKB Deutsche, 2008 WL 5478808 (dismissing to England); CK’s Supermarket Ltd. v. Peak Entm’t Holdings, Inc., 37 A.D.3d 348, 831 N.Y.S.2d 138 (1st Dept. 2007) (dismissing to United Kingdom); Blueye Navigation, 239 A.D.2d 192, 658 N.Y.S.2d 9 (dismissing to England); Zelouf v. Rep. Nat’l Bank of N.Y., 225 A.D.2d 419, 640 N.Y.S.2d 15 (1st Dept. 1996) (dismissing to England); Brooke Group Ltd. v. JCH Syndicate 488, 214 A.D.2d 486, 625 N.Y.S.2d 223 (1st Dept. 1995) (dismissing to England); Brewers, 99 A.D.2d 949, 472 N.Y.S.2d 637 (dismissing to United Kingdom); Matter of Berger, 81 A.D.2d 584, 437 N.Y.S.2d 690 (2d Dept. 1981) (dismissing to England). Plaintiffs claim that the Supreme Court erred by making findings “directly at odds with the affidavits of Plaintiffs’ foreign law experts” with respect to (1) the practical and procedural difficulties they will face in England, and (2) Plaintiffs’ ability to bring their claims in England. Plaintiffs’ Brief at 19-21. Plaintiffs 35 2824700.2 support its claim by citing three inapposite cases. Id. at 20. First, Plaintiffs cite Neville v. Anglo American Mgmt. Corp., 191 A.D.2d 240, 594 N.Y.S.2d 747 (1st Dept. 1993), as a case where the New York court decided against dismissing the action where the alternative forum was England. Upon closer inspection, however, the court only retained the case because of its strong connection to New York, a factor not present here. Id. The Neville court explained that the “question of the relationship between the [U.S. defendants] and [an English based company], which is at the heart of the lawsuit, is one which may easily be litigated in New York.” Id. at 242. The liability of the U.S.-based defendants revolved upon their relationship with the English-based company. Id. at 241-242 (highlighting the importance of this factor in three distinct places within the concise two and a half page opinion). Second, Plaintiffs cite Banco Nacional Ultramarino, SA v. Chan, 169 Misc.3d 182, 192, 641 N.Y.S.2d 1006 (Sup. Ct. 1996). In Chan, as opposed to this case, all the critical action underlying the lawsuit took place in New York. Thus, the court found it particularly necessary that the plaintiff have access to the more liberal discovery rules available in the United States. Finally, Plaintiffs cite Aboujdid v. Gulf Aviation Co., 108 Misc.2d 175, 178-179, 437 N.Y.S.2d 219, 221, aff’d 86 A.D.2d 564, 448 N.Y.S.2d 437 (1st Dept. 1982). Unlike this case, in Aboujdid the court took special note that “[e]xtensive discovery proceedings have already taken place in New York.” In this case, no discovery has taken place here. 36 2824700.2 Contrary to Plaintiffs’ inapposite case law, the Supreme Court followed relevant and applicable law, which states that the “unavailability of a jury trial or contingency-based fee representation does not make the forum inadequate.” (Record at 8) (citing Brewers, 99 A.D.2d 949, 472 N.Y.S.2d 637 (reversing the Supreme Court’s ruling and granting defendant’s motion to dismiss despite the fact that the Supreme Court found persuasive, inter alia, the fact that transferring the case to the UK would result in the unavailability of jury trials or contingent attorney’s fees); see also Neuter, 239 A.D.2d 213, 657 N.Y.S.2d 663 (holding that the unavailability of contingency fees was not a determinative factor)). In addition, the Supreme Court stated that “other forums are not inadequate despite the reality that the discovery practices in those nations is not as expansive as that of New York.” (Record at 8-9) (citing Manela v. Garantia Banking Ltd., 940 F.Supp 584, 591 (S.D.N.Y. 1996)); see also Shin-Etsu Chem. Co., 9 A.D.3d 171 (reversing lower court’s denial of forum non conveniens motion on ground that it would take at least ten years to resolve the matter in a court in India). In addition, Plaintiffs’ complaint with respect to their ability to bring their claims in England fails for two reasons. 6 First, even if Plaintiffs’ expert is correct 6 Plaintiffs’ expert agrees that England recognizes causes of action for negligence and breach of contract, each of which Mr. Boyle and Ms. Nogues independently seek $4,000,000.00. (Record at 83). Plaintiffs’ expert, however, claims that Mrs. Boyle’s remaining loss of consortium claim, which only represents $750,000.00, or just over 11 percent of the Boyles total claim amount, would be lost as England does not recognize Loss of Consortium as a cause of action. (Id.) 37 2824700.2 that England does not recognize loss of consortium as a cause of action, this is not a persuasive factor in a dismissal analysis. See Brewers, 99 A.D.2d 949, 472 N.Y.S.2d 637 (reversing trial court’s decision and dismissing action to England when plaintiffs sought damages for personal injuries and loss of consortium). New York courts have stated that “a given forum is not inadequate merely because it does not recognize certain claims.” Wyser-Pratte, 7 Misc.3d 1012(A), 801 N.Y.S.2d 244 (holding that Germany was not an inadequate forum because it did not recognize plaintiff’s claims for punitive damages and RICO violations). Second, because this Court would likely apply English law to this claim (see supra Section I.D.), New York would not entertain Mrs. Boyle’s claim anyway. Thus, this issue is moot as neither an English nor a New York forum will allow Mrs. Boyle to proceed on her claim. 2. France is an Adequate Alternative Forum Like England, New York courts frequently dismiss an action for forum non conveniens to France. Adamowicz, 58 A.D.3d 546, 872 N.Y.S.2d 47 (dismissal to France); Kuwaiti Engn’g Group v. Consortium of Int’l Consultants, LLC, 50 A.D.3d 599, 856 N.YS.2d 101 (1st Dept. 2008) (dismissal to France or Kuwait); Flamel Technologies v. Soula, 16 Misc.3d 1129(A), 847 N.Y.S.2d 901 (Sup. Ct. 2007) (dismissal to France); Finance & Trading Ltd. v. Rhodia S.A., 28 A.D.3d 346, 816 N.Y.S.2d 7 (1st Dept. 2006) (dismissal to France); Phat Tan Nguyen v. 38 2824700.2 Indosuez, 19 A.D.3d 292, 797 N.Y.S.2d 89 (1st Dept. 2005) (dismissal to France); Edelman v. Taittinger, S.A., 298 A.D.2d 301, 751 N.Y.S.2d 171 (1st Dept. 2002) (dismissal to France); Morley v. Morley, 191 A.D.2d 372, 595 N.Y.S.2d 200 (1st Dept. 1993) (dismissal to France). Plaintiffs’ claim that the court erred by failing to consider (1) the practical and procedural difficulties they will face in France, and (2) Plaintiffs’ ability to bring their claims in France. Plaintiffs’ Brief at 19-21. As stated above, Plaintiffs’ case law is inapposite and the practical and procedural difficulties will not make a forum inadequate. See, e.g., Brewers, 99 A.D.2d 949, 472 N.Y.S.2d 637 (reversing the Supreme Court’s and granting defendant’s motion to dismiss despite the fact that the Supreme Court found persuasive, among other factors, the fact that transferring the case to the UK would result in the unavailability of jury trials or contingent attorney’s fees); Neuter, 239 A.D.2d 213, 657 N.Y.S.2d 663 (holding that the unavailability of contingency fees was not a determinative factor). Similarly, that an alternative forum does not recognize a plaintiff’s cause of action will not render that forum inadequate. Brewers, 99 A.D.2d 949, 472 N.Y.S.2d 637 (reversing trial court’s decision and dismissing action to England when plaintiffs sought damages for personal injuries and loss of consortium); Wyser-Pratte, 7 Misc.3d 1012(A), 801 N.Y.S.2d 244 (holding that Germany was 39 2824700.2 not an inadequate forum because it did not recognize plaintiff’s claims for punitive damages and RICO violations). Plaintiffs also find fault with the Supreme Court’s treatment of Ms. Nogues and how she may be barred from pursuing her claim in France. Plaintiffs’ Brief at 19. Plaintiffs, however, assume that Ms. Nogues would have to proceed under Article 14 of the French Civil Code in order to obtain jurisdiction over Starwood. Further, even if there is no alternative way for Ms. Nogues to obtain jurisdiction over Starwood, Starwood should not be prejudiced by Ms. Nogues’ decision to forum shop by filing this action in New York. Essentially, that would make Starwood responsible for the misguided choices that Ms. Nogues freely made. 3. Dubai is an Adequate Alternative Forum Plaintiffs claim that the Supreme Court failed to give proper weight to the alleged inadequacies with the courts in Dubai. Plaintiffs’ Brief at 19-21. Contrary to Plaintiffs’ assertions, however, the Supreme Court did not definitively state that Dubai is a viable alternative forum. (Record at 11). Rather, the Supreme Court relied on Pahlavi and Payne and held that “even if Dubai is not a viable forum for the plaintiffs’ claims, that one factor is not determinative and this Court may dismiss on forum non conveniens grounds even when plaintiff has no alternative forum.” (Id.) (emphasis added). Thus, Plaintiffs’ claims of error regarding the Supreme Court’s findings with respect to the Dubai judiciary are rendered null 40 2824700.2 because the Court did not rely upon the adequacy of the Dubai judiciary when deciding this factor. This case, as the Supreme Court alluded to, bears a strong resemblance to the Payne action, which the Appellate Division decided just over a year ago. Payne II, 83 A.D.3d 518, 921 N.Y.S.2d 229. In both actions, the plaintiffs were non-New York citizens, at least one of the defendants was a New York business, and the alleged negligence and injury occurred in Dubai. Compare Payne v. Jumeirah Hospitality. & Leisure, Inc., 2009 WL 3697026 (N.Y. Sup. Ct. Oct. 15, 2009) (“Payne I”), with Record at 13-24. In addition, the plaintiff in Payne “underwent surgery and received medical treatment” in New York for the injuries he sustained. Payne I, 2009 WL 3697026. While not ruling on whether Dubai would offer plaintiff an adequate alternative forum, the Payne court stated that “even if plaintiff is correct that Dubai is not a viable forum for his claims, that one factor is not determinative.” Id. In ultimately concluding that the action would be dismissed for forum non conveniens, the Payne court stated that it “cannot justify burdening the New York courts with a suit about an accident that happened in Dubai without involving any New York residents . . .” Id. Finally, Plaintiffs’ claim of a conflict of interest with respect to the same Sheikh owning the Mina Seyahi and allegedly supporting Plaintiffs’ Dubai attorney is patently false. Plaintiffs’ Brief at 21. First, the Sheikh that Plaintiffs’ 41 2824700.2 allege owns the Mina Seyahi is Sheikh Ahmed bin Saeed Al Maktoum (“Sheikh Ahmed”). (Record at 67). This is not the same Sheikh that Plaintiffs’ Dubai attorney referenced, which is Sheikh Saqar Bin Mohamed Bin Zayed Al Nayhan. (Record at 119 and 121). In addition, the Wikipedia website, which Plaintiffs cite as support for their claim that Sheikh Ahmed owns the Mina Seyahi, does not, in fact identify him as the owner. Plaintiffs have three alternative forums, each of which has a far stronger interest in this litigation than New York, available to litigate their claims. See, Payne II, supra. Even if no alterative forum exists, the Supreme Court did not err by dismissing this action. II. Point 2: THE SUPREME COURT CORRECTLY PLACED THE BURDEN UPON STARWOOD In a futile attempt to find error where none exists, Plaintiffs craft a baseless and unsubstantiated argument that the Supreme Court shifted the burden to Plaintiffs. Plaintiffs’ Brief at 13-18. The weakness in this argument is glaring. Preliminarily, Plaintiffs’ entire argument is devoid of any semblance of proof suggesting that the Supreme Court improperly shifted the burden. Quite to the contrary, on two separate occasions, the Supreme Court referenced “defendant’s burden.” (Record at 7 (quoting Pahlavi and stating that “the burden is on the defendant challenging the forum to demonstrate relevant private and public interest factors which militate against accepting jurisdiction”) and 11 (quoting Travelers 42 2824700.2 Cas. and Sur. Co. v. Honeywell Intern. Inc., 48 A.D.3d 225, 225-226, 851 N.Y.S.2d 426 (1st Dept. 2008) and stating that “[w]hile giving due consideration to the fact that the transaction out of which the cause of action arose occurred primarily in a foreign jurisdiction, . . . ‘defendant’s ‘heavy burden’ remains despite the plaintiffs’ status as a nonresident’”)). To claim that the Supreme Court would expressly recognize the proper burden allocation on two separate occasions and then fail to follow it only supports a claim of Plaintiffs’ error, not the Court’s. Even if the Supreme Court failed to make a single mention of Starwood’s burden, a review of the forum non conveniens factors in this case clearly refutes Plaintiffs’ claim of error. For example, Plaintiffs’ make light of any “heavy burden” that would be placed on this Court and Starwood if the case were litigated here. Plaintiffs’ Brief at 16. As discussed in greater detail supra at Section I.D., a New York court would face a practically insurmountable burden if this case remained here. Plaintiffs’ half-hearted suggestion that the application of at least two, if not three, foreign laws does not qualify as a heavy burden is laughable. Moreover, the amount of time, effort and money that a New York court (as well as both Plaintiffs and Starwood) would spend in deciphering foreign laws, subpoenaing multiple foreign jurisdictions to obtain access to documents and witnesses, hiring foreign counsel in several foreign countries to procure and serve foreign subpoenas, and coordinating flights from foreign jurisdictions (both for 43 2824700.2 counsel to travel for depositions and the witnesses in having to travel to New York for attendance at trial) is impracticable and entirely unnecessary. Plaintiffs also argue that the Supreme Court’s incorrect interpretation of Pahlavi caused the improper shift in burden. Plaintiffs’ Brief at 15. The only shard of evidence that Plaintiffs provide as support to this argument is a part in the Dismissal Decision that quotes Pahlavi. The Supreme Court does not elaborate on this quote nor does it imply that this quote means that the burden shifts to Plaintiffs. Quite simply, Plaintiffs seem to find fault with the Supreme Court quoting a case considered to be the leading New York case on forum non conveniens issued from the highest court in this jurisdiction. Finally, Plaintiffs claim that the error is evidenced by the Court’s finding that Plaintiffs “are certainly forum shopping.” Plaintiffs’ Brief at 17. Despite the vehemence with which Plaintiffs dispute this statement, Plaintiffs provide the Court with no legitimate, non-forum shopping reasons why they selected New York. The undisputed facts show that the following reasons do not support Plaintiffs’ selection of New York: Plaintiffs did not select this forum because the majority of the documents are located here. Plaintiffs did not select this forum because the majority of the witnesses are here. Plaintiffs did not select this forum because New York law would apply. 44 2824700.2 Plaintiffs did not select this forum because this is where the alleged negligence occurred. Plaintiffs did not select this forum because this is where they felt the effects of the alleged negligence or received treatment for their injuries. These reasons, coupled with Plaintiffs’ own admission that New York was not selected for its own convenience (Plaintiffs’ Brief at 16), leave little doubt that the only cognizable reason that Plaintiffs selected New York was, quite simply, forum shopping. The Supreme Court did not err, and it properly placed the burden on Starwood. III. Point 3: THE SUPREME COURT DID NOT ERR BY NOT PLACING A CONDITION UPON DISMISSAL OF PLAINTIFFS’ COMPLAINT In a last ditch attempt to find error with the Dismissal Decision, Plaintiffs request this Panel find that the Supreme Court erred by failing to condition dismissal upon Starwood submitting to jurisdiction in one of the three foreign countries. Plaintiffs’ Brief at 34-36. In support of this claim of error, Plaintiffs cite two federal cases. Id. Not only is federal case law not binding on this court, but even if it were, neither case helps Plaintiffs’ position. The cases are mere examples of trial courts’ choosing to condition their dismissals upon defendant submitting to jurisdiction in the foreign country. Payne v. Jumeriah Hosp. & Leisure Inc., 808 F.Supp.2d 604 (S.D.N.Y. 2011) (“Payne III”); Arellano, 448 F. Supp.2d 520. In neither case does the court state that existing law requires it to place a condition upon dismissal; rather, each court exercised its own discretion in 45 2824700.2 deciding to place a condition upon dismissal. Thus, these cases have no precedential effect here. Plaintiffs do not cite a single New York case where the Appellate Division has found that the Supreme Court abused its discretion by failing to condition dismissal upon defendant submitting to jurisdiction in a foreign country. Quite simply, Plaintiffs cite no case law because none exists. Whether to place a condition on dismissal is a decision that rests within the sound discretion of the Supreme Court. See Yun Ra, 82 A.D.3d at 734, 918 N.Y.S.2d at 738. In this case, the Supreme Court exercised its provident discretion by not placing a condition upon dismissal. This does not constitute a reversible error. CONCLUSION For the foregoing reasons, defendant Starwood respectfully asks the Court to deny Plaintiffs’ request to reverse the Dismissal Decision. Dated: New York, New York June __, 2012 2824700.2 46 POLSINELLI SHUGHART PC By:_~'76o"'~~'-b""-"<-.L..-LI.~{---_ Ja 8 Third Avenue, Suite 2020 New York, New York 10022 (212) 684-0199 and Troy B. Froderman (Pro Hac Vice to be Filed) Megan Tracy (Pro Hac Vice to be Filed) CityScape One E. Washington St., Ste. 1200 Phoenix, AZ 85004 Phone:(602) 650-2000 Attorneys for Defendant STARWOOD HOTELS & RESORTS WORLDWIDE, INC. CERTIFICATE OF COMPLIANCE It is hereby certified pursuant to 22 NYCRR §670.10.3(f) that the foregoing brief was prepared on a computer. Type: A proportionally spaced typeface was used as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double Word Count: The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 10,884. Dated: New York, New York June 15,2012