Thomas Boyle, et al., Appellants,v.Starwood Hotels & Resorts Worldwide, Inc., Respondent.BriefN.Y.June 24, 2014BALLON STOLL BADER & NADLER, P.C. COUNSELLORS AT LAw FOUNDED 1931 AFFILIATE OFFICES Hackensack, NJ • Philadelphia, PA • San Francisco, CA Dubai, U.A.E. • Moscow, Russia 729 SEVENTH AVENUE 1iH FLOOR NEW YORK, NY 10019-6831 Ph. 212.575.7900 www.ballonstoll.com April 29, 2014 BY OVERNIGHT DELIVERY New York State Court of Appeals 20 Eagle Street Albany, New York 12207 Attention: Clerk of the Court: Andrew W. Klein, Esq. Re: Boyle v. Starwood Hotels APL-2014-00022 LETTER-BRIEF FOR PLAINTIFFS-APPELLANTS To this Honorable Court: We represent Plaintiffs-Appellants Thomas Boyle, Catherine Boyle and Elodie Nogues (collectively, “Appellants”) in the above-referenced matter. Pursuant to your letter of March 5, 2014 and section 500.11 of the Court’s Rules of Practice, we respectfully submit these written comments and arguments in letter form in support of Appellants’ appeal from the October 23, 2013 Decision and Order issued by the Appellate Division, Second Department, and respectfully urge this honorable Court to reverse that Decision and reinstate Appellants’ complaint based on, among other things, the legal authorities and reasoning set forth in the dissenting Justice’s opinion contained therein. Boyle v. Starwood Hotels, APL-2014-00022 Letter Brief on behalf of Plaintiffs-Appellants 2 I. Underlying Facts On January 30, 2009, William Frindall, a world-renowned Cricket statistician and commentator, died from Legionnaire’s disease less than two weeks after he stayed as a guest at a hotel 1 owned, operated, advertised, managed, maintained and controlled by Respondent Starwood Hotel & Resorts Worldwide, Inc. (“Respondent”). {Rec 5, 24} Contemporaneous with Mr. Frindall’s death and the widely-publicized outbreak of Legionnaire’s disease at the Hotel, Appellants Thomas Boyle, a citizen of the United Kingdom (“UK”), and Elodie Nogues, a citizen of France, each contracted Legionnaire’s disease during separate stays at Respondent’s Hotel. 2 {Rec 17-26} Respondent is one of the world’s largest hotel and leisure companies with its principal place of business and global headquarters located in White Plains, New York. {Rec 13-14, 4-5} As the parent company of Westin Hotels & Resorts, Inc., and owner of the Hotel, Respondent publicly held itself out in such a manner as to lead the general public and hotel guests, including Appellants, to believe they were dealing directly with Respondent, a hotel corporation with international reputation. {Rec 13-16} Furthermore, Appellants allege the negligent actions, inaction, 1 The Westin Dubai Mina Seyahi Beach Resort and Marina (the “Hotel”), located in Dubai, United Arab Emirates (“UAE”) 2 Mr. Boyle was a guest at the Hotel between December 28, 2008 and January 6, 2009; and, Ms. Nogues’ stay was from February 14 to February 21, 2009. Boyle v. Starwood Hotels, APL-2014-00022 Letter Brief on behalf of Plaintiffs-Appellants 3 decisions and directions which give rise to Appellants’ claims occurred at or are directly linked to Respondent’s headquarters in White Plains. {Rec 14-17, 24-30} Particularly relevant, Respondent monitored and directed the investigation, repair and maintenance of the Hotel’s various water and HVAC systems believed to be the source of the Legionella bacteria from its global headquarters in White Plains. {Rec 24-26} Indeed, in the wake of the considerable media attention surrounding Mr. Frindall’s death and the outbreak of Legionnaire’s disease at the Hotel, Respondent issued a number of press releases and sent emails to concerned travelers indicating Respondent was in fact monitoring, investigating and addressing this outbreak from its headquarters in White Plains. {Rec 24-25} For example, one such press release stated, in pertinent part: Starwood Hotels & Resorts, Westin’s parent company in co-operation with Dubai Municipality and Dubai Health Authorities are continuing to conduct a thorough investigation with independent assessors, including leading European and U.S. based experts, to investigate whether legionella is present at the hotel . . . *** The Westin Dubai Mina Seyahi and Starwood Hotels would like to express our sincere condolences to the friends and families of Bill Frindall. {Rec 24} As a direct result of their contracting Legionnaire’s disease at the Hotel, both Mr. Boyle and Ms. Nogues have suffered debilitating and life-altering health problems, and have been unable to regain the normal active and happy life which Boyle v. Starwood Hotels, APL-2014-00022 Letter Brief on behalf of Plaintiffs-Appellants 4 they had prior to their near-death bouts with the disease. {Rec 17-22} As a further consequence, Mr. Boyle’s wife, Catherine Boyle, a resident of UK, suffered extraordinary emotional and physical demands which dramatically impacted her relationship with her husband. {Rec 28-29} Accordingly, Appellants commenced this action against Respondent in the Supreme Court of New York, Westchester County, seeking to recover damages under theories of breach of contract and negligence, and asserting a derivative cause of action for loss of consortium on behalf of Mr. Boyle’s wife, Catherine Boyle. {Rec 26-32} II. Decisions Below A. Supreme Court, Westchester County By decision and order, entered September 21, 2011, the Supreme Court, Westchester County (Walker, J.), found “that the majority of the factors weigh in favor of dismissal for forum non conveniens” and granted Respondent’s motion to dismiss Appellants’ action on that ground. (Rec 4-12) In reaching this ruling, the Supreme Court evidently accepted broad and unsubstantiated assertions of Respondent’s vice president and associate general counsel that unnamed witnesses and, “upon information and belief,” unspecified documents, were located outside of New York, and would be unavailable by subpoena. {Rec 7-8, 57-58}. Further, the court presumed that adequate alternative forums exist in France, the United Boyle v. Starwood Hotels, APL-2014-00022 Letter Brief on behalf of Plaintiffs-Appellants 5 Arab Emirates, and the United Kingdom. 3 (Rec 8-11) Lastly, the court found that Appellants’ claims appear to “lack a substantial nexus with New York.” (R 7-12). B. Appellate Division, Second Department, Decision 1. Majority Opinion On October 23, 2013, the Appellate Division, Second Department, majority opinion affirmed the Supreme Court’s dismissal of Appellants’ Complaint, subject to a slight modification conditioning said dismissal upon Respondent stipulating to waive jurisdictional and statute of limitations defenses in any new action or actions commenced by Appellants, jointly or separately, in the UK, France and/or the UAE. See Boyle v. Starwood Hotels & Resorts Worldwide, Inc., 110 A.D.3d 938, 938-40, 973 N.Y.S.2d 728 (2013) (Dillon, J.P., Chambers and Roman, JJ., concurring) Citing Islamic Republic of Iran v. Pahlavi, 4 Koskar v. Ford Motor Co., 5 and Tiger Sourcing (HK) Ltd. v. GMAC Commercial Fin. Corporation- Canada 6 as its legal framework for determining a motion to dismiss on the ground 3 Appellants submitted several uncontroverted affidavits, including from experts in French law {Rec 71-79} and English law {Rec 80-86}, definitively explaining that France, the UK and the United Arab Emirates (“UAE”) are not adequate alternative forums to New York. Nevertheless, without any explanation, the Supreme Court’s Decision states: “Both parties acknowledge that alternative forums exist in the United Kingdom, France and the United Arab Emirates.” {Rec 8} 4 62 N.Y.2d 474 (1984) 5 84 A.D.3d 1317 (2 nd Dep't 2011) (affirming Supreme Court’s denial of forum non conveniens motion because defendant “failed to meet its burden of establishing that New York is an inconvenient forum”) 6 66 A.D.3d 1002 (2 nd Dep't 2009) (affirming forum non conveniens dismissal in action by Hong Kong plaintiff against Canadian company with offices in Michigan and New York, and Delaware LLC with office in Colorado) Boyle v. Starwood Hotels, APL-2014-00022 Letter Brief on behalf of Plaintiffs-Appellants 6 of forum non conveniens, and summarily noting that Appellants are residents of the UK and France, who contracted Legionnaire’s disease during separate stays at a hotel in Dubai owned by Respondent, a corporation that has its principal place of business in White Plains, the Appellate Division majority opinion concluded that “under the circumstances of this case, the Supreme Court, considering all of the relevant and appropriate factors, providently exercised its discretion in granting [Respondent’s] motion to dismiss the action on the ground of forum non conveniens pursuant to CPLR 327(a).” Boyle, supra, 110 A.D.3d at 939-40. However, in an attempt “to assure the availability of a forum for the action,” the majority opinion modified the Supreme Court’s decision by conditioning the dismissal as indicated above. Id. 2. Dissenting Opinion Unable to accept the majority’s findings and conclusions, one justice in the Appellate Division dissented and voted to reverse the Supreme Court’s dismissal decision and deny Respondent’s motion, with a comprehensive memorandum setting forth his reasoning and supporting legal authority. Boyle v Starwood Hotels & Resorts Worldwide, Inc., 110 A.D.3d 938, 940-48 (2 nd Dep't 2013) (Austin, J., dissenting) (the “Dissent”). According to the Dissent, “[t]he Supreme Court’s determination that New York was an inconvenient forum, the basis for its grant of [Respondent’s] motion to dismiss the action, was the result of an improvident Boyle v. Starwood Hotels, APL-2014-00022 Letter Brief on behalf of Plaintiffs-Appellants 7 exercise of discretion and the failure to properly weigh the key factors in determining the motion.” Id. at 946 In that connection, the Dissent undertakes a thorough analysis of each of the relevant factors that the Supreme Court was required, but failed, to properly consider and weigh when deciding Respondent’s motion to dismiss. In particular, applying copious legal authority to the facts at bar, the Dissent convincingly demonstrates that “the Supreme Court failed to consider the actual lack of available alternate forums,” and “[Respondent] failed to meet its ‘heavy burden’ of establishing that New York is an inconvenient forum with regard to most, if not all, of the various factors to be considered on its motion.” Id. at 944-48 With regard to the majority’s attempt to cure the lack of a viable alternate forum by modifying the Supreme Court’s Decision, the Dissent explains that this solution is “problematic and, based on this record, illusory,” for the following reasons: Neither France nor the UK would give the [Appellants] the opportunity to litigate together. While the UAE would allow the [Appellants] to litigate in the same forum, their ability to litigate in a fair and impartial forum would be greatly curtailed. Thus, the parties are left to fend for themselves in disparate jurisdictions, if the courthouse doors are even open to them, with procedures and available remedies different from those available in our courts. Such a scenario leaves these [Appellants] between a rock and a hard place, since they seem destined to realize potentially different, inconsistent results in France and the UK, or a Boyle v. Starwood Hotels, APL-2014-00022 Letter Brief on behalf of Plaintiffs-Appellants 8 seemingly assured unfair result in the UAE, as reported by the Department of State. *** Id. at 946 Based primarily on the reasoning and opinion expressed by the dissenting Justice of the Appellate Division, Second Department, as well as the arguments set forth in Appellants’ briefs and other submissions to the Appellate Division, we respectfully urge this honorable Court to reverse the Decision and Order appealed from, and reinstate Appellants’ Complaint. III. Introduction This Court has repeatedly acknowledged: “Relief [pursuant to CPLR 327(a)] should be granted when it plainly appears that New York is an inconvenient forum [for the defendant] and that another is available which will best serve the ends of justice and convenience of the parties.” Silver v. Great Am. Ins. Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398 (1972); H & J Blits, Inc. v. Blits, 65 N.Y.2d 1014, 1015-16, 494 N.Y.S.2d 99 (1985) (reversing and remitting because “it would appear, as the dissenters at the Appellate Division found, that the trial court, on whose reasoning the Appellate Division affirmed, did not consider all the relevant factors which would best serve the ends of justice and convenience of the parties.”); Banco Ambrosiano v. Artoc Bank & Trust, 62 N.Y.2d 65, 74, 476 N.Y.S.2d 64, 68 (1984) (“The question whether jurisdiction should be retained in a given case involves a balancing of several factors, including the difficulties for defendant in litigating the Boyle v. Starwood Hotels, APL-2014-00022 Letter Brief on behalf of Plaintiffs-Appellants 9 claim in this State, the burden on the New York courts in entertaining the suit and the availability of another more convenient forum in which plaintiff may obtain redress.”); Varkonyi v. S. A. Empresa de Viacao Airea Rio Grandense, 22 N.Y.2d 333, 337, 292 N.Y.S.2d 670, 672 (1968) (“Among the pertinent factors to be considered and weighed, in applying the doctrine of forum non conveniens, are, on the one hand, the burden on the New York courts and the extent of any hardship to the defendant that prosecution of the suit would entail and, on the other, such matters as the unavailability elsewhere of a forum in which the plaintiff may obtain effective redress and the extent to which the plaintiff's interests may otherwise be properly served by pursuing his claim in this State.”) It is equally well-settled that a defendant challenging the forum has a heavy burden to demonstrate the “relevant private or public interest factors which militate against accepting the litigation” in that forum. Pahlavi, supra, 62 N.Y.2d at 479, 278 N.Y.S.2d 597 As set forth in Appellants’ submissions to the courts below, and by the dissenting justice in the Appellate Division, Second Department, dismissal of Appellants’ action not only fails to “promote the equitable principles of justice, fairness and convenience,” it appears to turn the doctrine of forum non conveniens on its head. In particular: One, Appellants still have no viable, alternate adequate forum in which they all can all obtain redress, even with the Appellate Division’s modification of the Supreme Court’s Dismissal Decision “to assure the availability of a forum;” Boyle v. Starwood Hotels, APL-2014-00022 Letter Brief on behalf of Plaintiffs-Appellants 10 Two, Respondent’s motion argued, and the courts below agreed, it would be more convenient for Respondent to litigate multiple actions in France, England and/or Dubai, rather than a single action in the Westchester County courthouse located less than 5 miles from Respondent’s global headquarters where Respondent’s negligence allegedly was committed. Three, Respondent failed to carry its “heavy burden” – in fact, it offered no evidence whatsoever – showing that unnamed witnesses and unspecified documents were located outside New York and would be unavailable by subpoena; and Four, there is nothing in the record to suggest Appellants’ action would impose an inordinate burden on the New York courts. Accordingly, Appellants respectfully submit that the October 23, 2013 Decision and Order of the Appellate Division affirming the Supreme Court’s dismissal of Appellants’ Complaint on the ground of forum non conveniens pursuant to CPLR 327(a) should be reversed and remanded, with directions to reinstate Appellants’ action in the Supreme Court. IV. Argument A. Appellants are Still Without A Viable Alternate Forum “Forum non conveniens analysis requires – and, indeed, is premised upon – the defendant’s proof of the existence of a particular viable alternative forum.” Boyle, 110 A.D.3d at 945 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254, n. 22 (1981)). Any alternative forum must be both, one in which jurisdiction can be obtained, and one in which a Plaintiff can receive “effective redress.” Varkonyi, Boyle v. Starwood Hotels, APL-2014-00022 Letter Brief on behalf of Plaintiffs-Appellants 11 supra, 22 N.Y.2d at 338. The United States Supreme Court in Piper Aircraft Co. v. Reyno observed: [W]here the remedy offered by the other forum is clearly unsatisfactory, the other forum may not be an adequate alternative, and the initial requirement may not be satisfied. Thus, for example, dismissal would not be appropriate where the alternative forum does not permit litigation of the subject matter of the dispute. Cf. Phoenix Canada Oil Co. Ltd. v. Texaco, Inc., 78 F.R.D. 445 (Del. 1978) (court refuses to dismiss, where alternative forum is Ecuador, it is unclear whether Ecuadorean tribunal will hear the case, and there is no generally codified Ecuadorean legal remedy for the unjust enrichment and tort claims asserted). Piper, 454 U.S. at 254, n. 22 (holding that no alternative forum exists “if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all,” or where the plaintiff will be “treated unfairly” Id. at 254-55). Furthermore, “[w]here ‘there are special and unusual circumstances’ favoring acceptance of a suit between nonresident parties, it is error of law for the Appellate Division to exclude consideration of such circumstances in deciding whether to exercise its discretion in favor of accepting or of rejecting jurisdiction.” Varkonyi, supra, 22 N.Y.2d at 337 (quoting Taylor v. Interstate Motor Freight System, 309 N.Y. 633, 636 (1956)) “The rule is well settled . . . that jurisdiction should be retained, once special circumstances are found to be present.” Id. at 344 (Keating, J., concurring in part, dissenting in part) (concurring in reversal of Appellate Division’s order dismissing action on ground of forum non conveniens, Boyle v. Starwood Hotels, APL-2014-00022 Letter Brief on behalf of Plaintiffs-Appellants 12 but dissenting as to majority’s remand to Appellate Division for further consideration as opposed to reinstating Special Term’s order retaining jurisdiction and denying the defendants’ motion to dismiss for forum non conveniens) In Varkonyi, the Court found “the absence of any other forum in which both of the moving defendants could be joined [was a] factor which the Appellate Division was bound to take into account in exercising its discretion.” Id. at 337 (finding Appellate Division erred as a matter of law for failing to consider lack of alternative forum other than New York in which suit could be brought against both defendants, and reversing Appellate Division’s order conditionally dismissing the plaintiffs’ complaints.) The special circumstances identified in Varkonyi – to wit, the lack of a single, viable alternate forum other than New York, and the undue hardship and injustice on the plaintiffs created by the need to commence separate actions in multiple countries if their New York action was dismissed on the ground of forum non conveniens 7 – applies with equal force to Appellants’ action at bar. Here, despite the Appellate Division majority’s attempt to “assure the availability of a forum for this action,” like in Varkonyi, there still remains no single, viable alternate forum where all Appellants can adequately and fairly adjudicate their claims against Respondent without undue hardship and injustice. See, e.g., Boyle, 7 See Varkonyi, supra, 22 N.Y.2d at 339-40 (noting dismissal of the plaintiffs’ actions would require the commencement and trial of separate actions in Peru or Brazil, and another in Delaware.) Boyle v. Starwood Hotels, APL-2014-00022 Letter Brief on behalf of Plaintiffs-Appellants 13 supra, 110 A.D.3d at 945 (noting “the UK and France are not amenable to entertaining jurisdiction of this matter as to one or both parties,” and “it is highly questionable whether the remaining potential alternate forum, the UAE, could adequately and fairly adjudicate the [P]laintiffs’ claims”; and “Appellants have demonstrated, through the expert's affidavit, that, even if Thomas Boyle could litigate his claims in the UK, . . . Catherine Boyle could not pursue her derivative claim.”); See also Rec 59-116 (Appellants’ evidence, including expert affidavits from attorney-at-law in France, and solicitor in UK, demonstrating UK, France and Dubai are not available and/or adequate forums for this action). Actually, the facts before this Court present an even more compelling case for retaining jurisdiction than Varkonyi. First, whereas all of the parties in Varkonyi were non-residents of New York, here, Respondent is a resident of New York. Second, whereas Varkonyi involved an “out-of-state tort” (Varkonyi, supra, 22 N.Y.2d at 337), Appellants’ Complaint alleges Respondent’s negligence and other misfeasance was committed at its headquarters in White Plains. {Rec 14-17, 24-27} Based on the foregoing, the Supreme Court and the Appellate Division majority committed error of law by excluding consideration of the “special and unusual circumstances” presented herein – in particular, that Appellants still do not have a single, viable alternate forum where their “claims could be better Boyle v. Starwood Hotels, APL-2014-00022 Letter Brief on behalf of Plaintiffs-Appellants 14 adjudicated, . . . or where Appellants can expect justice, fairness, and convenience,” 8 – when rejecting jurisdiction and dismissing Appellants’ action on the ground of forum non conveniens. B. The Dismissal of Appellants’ Complaint Turns the Doctrine of Forum Non Conveniens On Its Head “[Starwood]’s motion is a strange, indeed a counterintuitive, one. It, a corporation headquartered in White Plains, New York, seeks dismissal of an action brought in White Plains on the ground that it would be more convenient to litigate claims against it in Spain.” Ramirez de Arellano v. Starwood Hotels & Resorts Worldwide, Inc., 448 F.Supp.2d 520, 525 (S.D.N.Y. 2006) (denying Starwood’s forum non conveniens motion to dismiss where claims stemmed from incident at the Westin Palace Hotel in Madrid, Spain). Respondent’s instant motion pursuant to CPLR 327(a) is predicated on an even more peculiar argument than in Arellano: that it is more convenient for Respondent to litigate multiple actions brought in England, France and/or the UAE, than a single action commenced in Westchester County. Yet, both the Supreme Court and the Appellate Division majority evidently accepted this argument, taking the view that Appellants’ claims “lack[] a substantial nexus with New York” {Rec 7}, and “Respondent’s “principle place of business in White Plains [is] the sole connection in this case to the State of New 8 Boyle, 110 A.D.3d at 947 (internal quotation marks and citations omitted) Boyle v. Starwood Hotels, APL-2014-00022 Letter Brief on behalf of Plaintiffs-Appellants 15 York.” Boyle, 110 A.D.3d at 939. However, these findings ostensibly disregard the allegations in Appellants’ Complaint {Rec 14-17, 24-26}, particularly those quoting Respondent’s own press releases {Rec 24-25}, which show Respondent “owned, operated, advertised, marketed and controlled” the Hotel {Rec 16-17}, and actively participated in the investigations and responsive actions taken following the outbreak of Legionnaire’s disease, all from its Westchester headquarters. Accordingly, there is a significant and unequivocal nexus between New York and this litigation, thereby tilting this factor in Appellants’ favor. More to the point, how does forcing Appellants to commence one or more actions in the UK, France and/or the UAE – which, as the Dissent poignantly describes, “leaves [Appellants] between a rock and a hard place, since they seem destined to realize potentially different, inconsistent results in France and the UK, or a seemingly assured unfair result in the UAE” 9 – promote the equitable principles of justice, fairness and convenience upon which the doctrine of forum non conveniens rests? Plainly, it does not. Accordingly, granting Respondent’s motion to dismiss on the ground of forum non conveniens was error, as a matter of law. 9 Boyle, supra, 110 A.D.3d at 947. Boyle v. Starwood Hotels, APL-2014-00022 Letter Brief on behalf of Plaintiffs-Appellants 16 V. Conclusion We respectfully submit that Review pursuant to Section 500.11 is appropriate. For the reasons stated herein, and upon the Appellate Division briefs, other intermediate appellate court filings and the Record on Appeal, and as elucidated and discussed by the dissenting justice of the Appellate Division, Second Department, Appellants respectfully request that the appealed from Decision and Order of the Appellate Division, Second Department, be reversed, and Appellants’ Complaint be reinstated in the Supreme Court, Westchester County. Respectfully submitted, BALLON STOLL BADER & NADLER, P.C. _______________________________ Vano I. Haroutunian Appellate Counsel for Plaintiffs-Appellants cc: Jason A. Nagi POLSINELLI PC 900 Third Avenue, 21 st Floor New York, New York 10022 Troy B. Froderman POLSINELLI PC CityScape One E. Washington St., Ste. 1200 Phoenix, AZ 85004 Attorneys for Defendant-Respondent