Thomas Boyle, et al., Appellants,v.Starwood Hotels & Resorts Worldwide, Inc., Respondent.

Brief

N.Y.June 24, 2014

New 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: Vano I. Haroutunian Time Requested: 15 Minutes REPLY BRIEF FOR PLAINTIFFS-APPELLANTS BALLON STOLL BADER & NADLER, P.C. Attorneys for Plaintiffs-Appellants 729 Seventh Avenue, 17th Floor New York, New York 10019 212-575-7900 Westchester County Clerk’s Index No. 3607/11 Docket No. 2011-10142 Of Counsel: Vano I. Haroutunian Michael H. Du Boff {00139280;1} i TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... II PRELIMINARY STATEMENT .................................................................................................... 1 ARGUMENT .................................................................................................................................. 2 POINT I THE SUPREME COURT FAILED TO CONSSIDER THE RELEVANT FACTORS AND THEREFORE ERRED IN DISMISSING PLAINTIFF’S COMPLAINT ON FORUM NON CONVENIENSGROUNDS ............................................2 A. The Record Demonstrates New York is the Situs of the Underlying Acts ...........................................................................................2 B. The record Demonstrates the Supreme Court Accepted Starwood’s Unsupported Conclusory Arguments Regarding Relevant Documents and Witnesses Despite a Complete Lack of Evidence and the Business Realities ..............................................................................................7 POINT II THE SUPREME COURT ERRED IN FAILING TO PLACE CONDITIONS UPON DISMISSAL OF PLAINTIFFS’ COMPLAINT .................................................. 14 CONCLUSION ............................................................................................................................ 16 {00139280;1} ii TABLE OF AUTHORITIES State Cases Aboujdid v. Gulf Aviation Co., Ltd., 108 Misc.2d 175 aff'd 86 A.D.2d 564 (1st Dept. 1982) ............................................................. 6 Adamowicz v. Besnainou, 58 A.D.3d 546, 872 N.Y.S. 2d 47 (1st Dept 2009) ................................................................... 16 Anagnostou v. Stifel, 204 A.D.2d 61 (1st Dept. 1994) ............................................................................................ 5, 10 Avnet, Inc. v. Aetna Cas. & Sur. Co., 160 A.D.2d 463 (1st Dept. 1990) .......................................................................................... 6, 13 Banco Ambrosiano, S.P.A. v. Artoc Bank & Trust, 62 N.Y.2d 65 (1984) ............................................................................................................. 5, 10 Banco Nacional Ultramarino, S.A. v. Chan, 169 Misc.2d 182 (1996) .............................................................................................................. 5 Banco Nacional Ultramarino, S.A. v. Moneycenter Trust Co., Ltd., 240 A.D.2d 253 (1st Dept. 1997) ................................................................................................ 5 Bewers v. Am. Home Prods. Corp., 99 A.D.2d 949 (1st Dept. 1984) .......................................................................................... 14, 16 Brinson v. Chrysler Fin., 43 A.D.3d 846 (2d Dept. 2007) .......................................................................................... 11, 15 Certain Underwriteres at Lloyd's v. Mobil Corp., 303 A.D.2d 259 (1st Dept. 2003) .............................................................................................. 12 Citigroup Global Mkts, Inc. v. Metals Holding Corp., 12 Misc.3d 1168(A) (Sup. Ct. 2006) .......................................................................................... 6 Continental Ins. Co. v. Amax, Inc., 192 A.D. 2d 391, 596 N.Y.S. 2d 370 (1st Dept. 1993) ............................................................. 13 Employers Ins. of Wausau v. Primerca Holdings, 199 A.D. 2d 178, 605 N.Y.S.2d 89 (1st Dept. 1993) ................................................................ 13 Healy v. Renaissance Hotel Operating Co., 282 A.D.2d 363 (1st Dept. 2001) .............................................................................................. 15 Intertec Contracting A/S v. Turner Steiner Int'l, 6 A.D.3d 1 (1st Dept. 2004) ........................................................................................................ 5 Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 467 NE2d 245, 478 NYS2d 597 (1984]), cert denied 469 US 1108, 105 S Ct 783 (1985) .......................................................................... 2 Jackham v. Nature's Bounty, Inc., 70 A.D. 3d 1000, 895 N.Y.S. 2d 508 (2d Dept. 2010) ............................................................. 16 {00139280;1} iii Kargbo-Turay v. Beam Brothers Trucking Co., Inc., 65 A.D.3d 1290, 885 N.Y.S. 2d 615 (2nd Dept. 2009) ............................................................ 16 Korea Exch. Bank v. A.A. Trading Co., 8 A.D.3d 344 (2nd Dept 2004) ................................................................................................... 5 Kuwaiti Engn'g Group v. Consortium of Int'l Consultants, LLC, 50 A.D.3d 599 (1st Dept. 2008) ............................................................................................ 6, 15 Matter of OxyContin II, 76 A.D.3d 1019 (2nd Dept. 2010) .................................................................................. 6, 12, 15 Millicom Int'l Cellular, S.A. v. Simon, 247 A.D.2d 223 (1st Dept. 1998) ................................................................................................ 6 Mionis v. Bank Julius Baer & Co., 9 A.D.3d 280 (1st Dept. 2004) .................................................................................................... 5 Pentifallo, et al. v. Hilton of Panama, S.A., 86 A.D. 2d 583 (1st Dept. 1982) ................................................................................................. 6 Republic of Lebanon v. Sotheby's, 167 A.D.2d. 142 (1st Dept.1990) ............................................................................................ 5, 6 Silver v. Great Am. Ins. Co., 29 N.Y.2d 356, 328 N.Y.S. 2d 398 (1972) ............................................................................... 16 Yoshida Printing Co. v. Aiba, 213 A.D.2d 275 (1st Dept. 1995) ............................................................................................ 5, 6 {00139280;1} 1 PRELIMINARY STATEMENT Plaintiffs-Appellants Thomas Boyle (“Mr. Boyle”), Catherine Boyle (“Mrs. Boyle”) and Elodie Nogues (“Ms. Nogues”) (collectively, “Appellants”) respectfully submit this reply brief in further support of their appeal from the September 21, 2011 Decision and Order of the Supreme Court of the State of New York, Westchester County (the “Supreme Court”), granting Defendant-Respondent Starwood Hotel & Resorts Worldwide, Inc. (“Starwood”)’s motion to dismiss pursuant to CPLR § 327(a) on the basis of forum non conveniens.1 In its responsive brief, Starwood attempts to mislead this Court by claiming numerous “facts are undisputed” and repeatedly citing to only a miniscule portion of Plaintiffs’ Complaint (i.e., the same five to six pages of the Record on Appeal (the “Record”)). Therefore, at the outset, Plaintiffs wish to make explicit: The events giving rise to this action took place in New York. Stated differently, it is Starwood’s alleged actions and inactions at its New York headquarters that led to the outbreak of Legionnaire’s Disease at the heart of this dispute. (R 13-17; R 24-31); Starwood’s conclusory assertion that a “substantial majority of the relevant documents are located outside New York and this country” is 1 To avoid duplication, Appellants respectfully direct the Court’s attention to the “Factual Background” and “Procedural History” sections in their principal Brief on Appeal served and filed on May 17, 2012 (“Plaintiffs’ Brief”), for a full recitation of the facts and procedural history of this action. {00139280;1} 2 not only disputed, it is at best, unsupported, and at worst, contradicted, by the Record. (Id.); Starwood’s conclusory assertion that “all of the percipient witnesses are located outside New York and this country” is not only disputed, it is at best, unsupported, and at worst, contradicted, by the Record. (Id.); and Starwood’s conclusory assertion that “a substantial majority of the other key witnesses are located outside New York and this country” is not only disputed, it is at best, unsupported, and at worst, contradicted, by the Record. (Id.) ARGUMENT POINT I. THE SUPREME COURT FAILED TO CONSIDER THE RELEVANT FACTORS AND THEREFORE ERRED IN DISMISSING PLAINTIFF’S COMPLAINT ON FORUM NON CONVENIENS GROUNDS. As set forth in Plaintiffs’ Brief, New York courts must consider and balance numerous competing factors in deciding a forum non conveniens motion. Among the factors to be considered are: (1) the availability of an alternative forum, (2) the residence of the parties, (3) the jurisdiction where the underlying acts occurred, (4) the location of evidence and nonparty witnesses, (5) the potential hardship to the defendants, and (6) the burden on the New York court, with no one factor being dispositive. See Islamic Republic of Iran v Pahlavi, 62 N.Y.2d 474, 467 N.E.2d 245, 478 N.Y.S.2d 597 (1984]), cert denied 469 US 1108, 105 S Ct 783 (1985). A. The Record Demonstrates New York is the Situs of the Underlying Acts {00139280;1} 3 The Supreme Court erred as a matter of law because it failed to consider the relevant factors in light of the uncontested facts alleged in the Complaint. These facts show Starwood’s offices in Westchester, New York always have been the hub of Starwood’s global operations and, as such, were responsible for and directly involved in all of the acts, omissions, decisions and events that caused Mr. Boyle and Ms. Nogues (and others) to contract Legionnaire’s disease while guests at Starwood’s hotel. For instance, Starwood never challenged or disputed the following allegations in Plaintiffs’ Complaint: • Starwood publicly held itself out as one of the world’s largest hotel and leisure companies, whose hotel business emphasizes the global operation of hotels and resorts primarily in the luxury and upscale segment of the lodging industry through a worldwide network of owned, leased and consolidated joint venture hotels and resorts operated primarily under Starwood’s nine proprietary brand names. (R 14-15) • Starwood’s website states that it has a “[n]etwork of nearly 5,000 sellers [hotels] around the world”; and, that “over $3 billion in revenue was - driven to Starwood hotels globally through 16 million bookings in 2008.” (R 16) • Based, upon, inter alia, Starwood’s website, literature and advertising, Starwood owned, operated, managed, maintained and/or controlled the Westin Dubai Mina Seyahi Beach Resort and Marina (the “Hotel”), a Starwood hotel doing business under one of Starwood’s largest proprietary brand names. (R 14-15; R 25) • As owner, operator, manager, maintainer and/or controller of the Hotel, Starwood was responsible for the inspection, repair and maintenance of the Hotel’s heating, ventilation, air conditioning and other systems believed to be the origin of the Legionella bacteria. (R 25) {00139280;1} 4 • Starwood negligently, carelessly and/or recklessly caused, created and/or harbored dangerous and unsafe conditions and failed to prevent, detect and eradicate the presence of Legionella bacteria at the Hotel; and, Starwood failed to disclose to and warn Hotel guests, including Plaintiffs, of the unsafe presence of Legionella bacteria at the Hotel and the danger to those exposed to it. (R 25-26) • Following widespread media exposure of the Legionnaire’s outbreak at the Hotel, Starwood issued press releases and statements, in its own name, establishing Starwood’s direct involvement in and control over the outbreak and investigations, stating: “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 . . . U.S. based experts, to investigate whether legionella is present in the hotel . . . *** Starwood Hotels would like to extend our sincere condolences to the family and friends of Bill Frindall.” (R 24) • Starwood intentionally and purposefully held itself out as the parent company of the Hotel in such a manner as to create and foster public association among the Hotel and Starwood, thereby leading the general public and hotel guests, including Plaintiffs, to believe that when dealing with and staying at the Hotel, they were dealing directly with Starwood. (R 15-16) The foregoing and other detailed uncontroverted factual allegations in Plaintiffs’ Complaint clearly show that Starwood, from its New York Offices, was directly involved in and responsible for the outbreak of Legionnaire’s Disease at the Hotel and its aftermath. Plaintiffs, therefore, chose to hold Starwood accountable in New York, from where Starwood runs its worldwide operations, and the Hotel in particular. In other words, the events giving rise to Plaintiffs’ claims occurred in (or have a nexus with) New York. Accordingly, New York is the proper venue to bring this action. Nevertheless, in granting Starwood’s forum {00139280;1} 5 non conveniens motion and dismissing this action, the Supreme Court evidently disregarded or ignored this strong and uncontroverted New York nexus. A defendant challenging the forum and seeking dismissal on forum non conveniens grounds in New York faces a “heavy burden” of demonstrating "relevant private or public interest factors which militate against accepting the litigation." Korea Exch. Bank v. A.A. Trading Co., 8 A.D.3d 344, 345 (2d Dept 2004); See Yoshida Printing Co. v. Aiba, 213 A.D.2d 275, 275 (1st Dept. 1995), Banco Ambrosiano, S.P.A. v. Artoc Bank & Trust, 62 N.Y.2d 65, 74 (1984); Republic of Lebanon v. Sotheby’s, 167 A.D.2d. 142, 144 (1st Dept.1990). The Record unequivocally demonstrates Starwood did not satisfy its heavy burden of establishing that this case should be dismissed on forum non conveniens grounds. As the authorities cited in Plaintiffs’ Brief make clear, Plaintiffs’ choice of a New York forum should not be disturbed where, as here, there exists an unmistakably strong New York nexus, and Defendant failed to and cannot demonstrate that either it or the Supreme Court would face a substantial undue burden if this case proceeded in New York,. See, e.g., Banco Ambrosiano, supra; Mionis v. Bank Julius Baer & Co., 9 A.D.3d 280 (1st Dept. 2004); Intertec Contracting A/S v. Turner Steiner Int’l, 6 A.D.3d 1 (1st Dept. 2004); Banco Nacional Ultramarino, S.A. v. Chan, 169 Misc.2d 182 aff’d, Banco Nacional Ultramarino, S.A. v. Moneycenter Trust Co., Ltd., 240 A.D.2d 253 (1st Dept. {00139280;1} 6 1997); Yoshida Printing, supra; Anagnostou v. Stifel, 204 A.D.2d 61 (1st Dept. 1994); Republic of Lebanon, supra; Pentifallo, et al. v. Hilton of Panama, S.A., 86 A.D. 2d 583 (1st Dept. 1982); Aboujdid v. Gulf Aviation Co., Ltd., 108 Misc.2d 175 aff’d 86 A.D.2d 564 (1st Dept. 1982). In considering this action’s nexus with New York, it is also significant that virtually all of Starwood’s cases cited to support a forum non conveniens dismissal involved foreign (i.e., non-New York) defendants objecting to the forum, claiming that the plaintiffs could not establish a sufficient New York nexus to force the foreign defendants to defend an action in this State. E.g., Matter of OxyContin II, 76 A.D.3d 1019, 1021 (2d Dept. 2010) (noting “defendant's corporate offices are not located in this State”); Avnet, Inc. v. Aetna Cas. & Sur. Co., 160 A.D.2d 463, 464 (1st Dept. 1990) (“None of the defendants, national and international insurance carriers, are New York corporations.”); Citigroup Global Mkts, Inc. v. Metals Holding Corp., 12 Misc.3d 1168(A) (Sup. Ct. 2006) (“This interpleader action is one small piece of a much larger multi-jurisdictional international dispute involving several parties, none of whom are residents of New York.”); Kuwaiti Engn’g Group v. Consortium of Int’l Consultants, LLC, 50 A.D.3d 599 (1st Dept. 2008) (defendants were “a Delaware limited liability company headquartered in Virginia” and “a French corporation.”); Millicom Int’l Cellular, S.A. v. Simon, 247 A.D.2d 223 (1st Dept. 1998) (none of the parties residents of New York). {00139280;1} 7 This case presents a very different set of facts and circumstances: Starwood is a New York resident; and Starwood’s worldwide headquarters, where all the acts, omissions and decisions giving rise to Plaintiffs’ claims allegedly originated, is located three miles from the Westchester courthouse. Moreover, unlike Plaintiffs’ allegations establishing a nexus with New York, all of which were supported by what little publicly-available evidence was available to Plaintiffs, the Record demonstrates Starwood offered nothing to rebut Plaintiffs’ allegations and evidence, instead supplying the Supreme Court with nothing but broad conclusory statements devoid of any evidentiary support. Accordingly, the Supreme Court erroneously concluded that Plaintiffs’ claims lack a substantial nexus with New York. B. The Record Demonstrates the Supreme Court Accepted Starwood’s Unsupported Conclusory Arguments Regarding Relevant Documents and Witnesses Despite a Complete Lack of Evidence and the Business Realities Documents First, the Supreme Court’s finding that Starwood does not have the relevant documents in this jurisdiction is unsupported by the Record and defies the business reality of the situation First, as discussed in Plaintiffs’ Brief and demonstrated by the Record, it appears the Supreme Court disregarded the uncontraverted evidence establishing Starwood actively participated from its New York offices in the events that gave rise to Plaintiffs’ causes of action. Specifically, Starwood owned, {00139280;1} 8 managed, maintained, and/or controlled the Hotel from its New York global headquarters. (R 13-17). It necessarily follows, in that capacity, Starwood was responsible for the Hotel’s heating, ventilation, air conditioning and other systems believed to be the source of the legionnella bacteria, which would include maintaining the relevant records and documentation. (Id.; R 24-25). Furthermore, in a February 3, 2009 Press Release, Starwood stated, in part: “Starwood Hotels & Resorts, Westin’s parent company, in co-operation with Dubai . . . 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 in the Hotel . . . (R 44) (emphasis added); see also, R 45 (Starwood’s email responses to concerned travelers about future bookings at the Hotel, like statements by Starwood spokespersons specifically identified by Plaintiffs in their Complaint concerning Starwood’s investigations and additional precautionary steps). In other words, either Starwood’s own press releases and other statements to the public were untrue (constituting a fraud), or Starwood’s statements in it submissions to the Supreme Court and this Court self- servingly minimize Starwood’s active participation. Assuming the latter, it is inconceivable that such an investigation could have been performed without Starwood obtaining the records of what actions were being taken with regards to {00139280;1} 9 the Hotel. Indeed, it would be negligent, if not reckless, of Starwood to not take an active role in these investigations and obtain the reports generated thereby. In sum, the foregoing uncontraverted facts in the Record, and well drawn inferences therefrom, support the underlying actions giving rise to Plaintiffs’ claims – namely, Starwood’s misconduct in failing to properly maintain, monitor and provide guidelines for the Hotel’s HVAC and other systems to prevent and quickly eradicate the Legionella bacteria, as well as its failure to properly warn and protect Plaintiffs and other Hotel guests of the unsafe condition (despite actual knowledge of that fact) – originated from and was at the direction of Starwood’s New York Headquarters. (R 25-31). Accordingly, the Supreme Court erred in finding Starwood carried its heavy burden of establishing these factors support dismissal. Witnesses As mentioned above, the uncontested facts in the Record demonstrate Starwood owned, operated, managed, maintained and/or controlled the Hotel from its New York offices. Accordingly, any claim by Starwood that witnesses are located outside of New York and this country is contrary to the Record and unavailing. Furthermore, importantly, Starwood failed to identify any such these witnesses, or support that any witnesses would be unavailable or burdened by testifying in New York. In short, Starwood did not offer the Supreme Court any {00139280;1} 10 credible evidence to remotely carry its heavy burden of establishing this factor weighed in favor of dismissal. Accordingly, the Supreme Court’s finding this factor weighed in favor of dismissal could only be categorized as an improvident use of discretion. Although Starwood now offers a list of potential witnesses on pages 20 and 21 of its Brief, this list of predominantly unidentified individuals appears nowhere in the Record and, thus, could not have formed a basis for the Supreme Court’s decision. Second, the majority of the witnesses on Starwood’s list are individuals Plaintiffs would be required to produce in order to succeed in this action. Third, Starwood’s claim that it “has not provided specific information regarding the availability of these named witnesses because this factor does not require any sort of showing, especially when the witnesses have no relation to Starwood” is misguided and unpersuasive. Starwood Brief at 21-22. Namely, it is based on Starwood’s offhanded disregard for Anagnostou v. Stifel, 204 A.D.2d 61, 62 (1st Dept. 1984) (providing the alleged presence of witnesses in foreign countries “does not automatically override plaintiff’s choice of forum, particularly where defendants have failed to come forward with the names or potential testimony of such witnesses or any basis, other than sheer speculation, to believe such testimony will be unobtainable in New York.”(emphasis added)), and Starwood’s complete oversight of Banco Ambrosiano, 62 N.Y.2d at 74 (“Broad {00139280;1} 11 allegations . . . that witnesses . . . are located outside New York are not sufficient” to satisfy defendants’ “heavy burden.”). To be sure, even Starwood’s cited cases reinforce the fallacy of its proposition. For instance, in Brinson v. Chrysler Fin., 43 A.D.3d 846, 847 (2d Dept. 2007), a case upon which Starwood relies, the appellate court expressly relied on the fact that the defendant “produc[ed] the affidavits of 11 witnesses, including police personnel, emergency service workers, physicians, and automobile transporters and repairers, all of whom resided in North Carolina and indicated that traveling to New York for a trial would constitute a hardship in terms of time, expense, and inconvenience.” Here, Starwood not only offered no such evidence, it now argues that it is wholly unnecessary. In truth, when considering Defendants’ motion, the Supreme Court had before it only one statement by Starwood concerning witnesses, to wit: “The witnesses with first-hand knowledge of the events pertinent to Plaintiffs’ Complaint include employees at the [Hotel] and Starwood’s Europe, Asia and Middle East division. All of these potential witnesses reside outside of New York in either the United Arab Emirates or Belgium.” (R 57-58) None of the witnesses listed on pages 20 and 21 of Starwood’s Brief appear in the Record. Plainly, the Supreme Court and Starwood ask this Court to lay down a rule that so relaxes the requirements of a defendant’s “heavy burden” to render it superfluous. {00139280;1} 12 It also cannot be overlooked that the equities favor Plaintiffs. Starwood is a multinational corporation which controls and employs the witnesses relating to the occurrences in its New York offices, as well as Starwood’s still unidentified witnesses purportedly with “first-hand knowledge.” (R 57-58). Certainly, Starwood has far greater resources than Plaintiffs to transport its unnamed employee-witnesses to New York. Be that as it may, by choosing a New York forum, Plaintiffs willingly assumed this burden with respect to transporting their witnesses needed to successfully prosecute their case. Moreover, the cases Starwood cites do not support its contention that retrieving evidence and witnesses located in foreign countries is a basis for dismissing on forum non conveniens grounds. Matter of OxyConin II, 76 A.D. 3d 1019 (2d Dept. 2010)2 involved, relevantly, a drug that was not manufactured in New York, and defendants who did not maintain corporate offices in New York. The only New York connection was a handful of the several hundred plaintiffs were New York residents. Certain Underwriters at Lloyd’s v. Mobil Corp., 303 A.D.2d 259 (1st Dept. 2003) was a declaratory judgment action against various insurers for costs in connection with environmental contamination at certain internationally situated refining and hazardous waste disposal facilities, where the court determined that Texas was the proper venue because the overwhelming 2 The case is incorrectly cited in Defendant’s Brief as “In Re Oxycontin II. {00139280;1} 13 majority of the contamination and liability arose in Texas, Similarly, in both Continental Ins. Co. v. Amax, Inc. 192 A.D. 2d 391, 596 N.Y.S. 2d 370 (1st Dept. 1993) and Avnet, Inc. v. Aetna Cas. & Sur. Co., 168 A.D. 2d 463, 554 N.Y.S. 2d. (1st Dept. 1990), the actions were dismissed because the underlying dispute as to whether insurance policies covered certain claims for pollution and toxic waste at various sites required “site-specific proof . . . [citations omitted].” Employers Ins. of Wausau v. Primerca Holdings, 199 A.D. 2d 178, 605 N.Y.S.2d 89 (1st Dept. 1993), another declaratory judgment action involving multistate environmental pollution litigation, was dismissed because an action between substantially the same parties had been commenced in New Jersey six months prior to the New York action and discovery had already preceded in that case. Bearing little to no resemblance to Starwood’s cited cases, here: (1) Starwood maintains its principal place of business in New York; (2) the acts, omissions and decisions giving rise to Plaintiffs’ claims are alleged to have been performed by, or at the direction of, individuals in New York, and (3) the witnesses concerning Starwood’s actions involvement are either in New York or are employees under the control of Starwood. Based on the foregoing, the Supreme Court failed to properly consider the factors concerning the location of witnesses and hardship on Starwood, and {00139280;1} 14 improvidently exercised its discretion in finding these factors weighed in favor of dismissal. POINT II. THE SUPREME COURT ERRED IN FAILING TO PLACE CONDITIONS UPON DISMISSSAL OF PLAINTIFFS’ COMPLAINT In Starwood’s memorandum of law submitted in the Supreme Court to support its Motion to Dismiss, Starwood stated: “Starwood does not object to the Court conditioning this dismissal on the Defendants submitting to the jurisdiction of the appropriate court in the United Arab Emirate, United Kingdom and/or France.” The Supreme Court nevertheless did not make its dismissal subject to Starwood’s consent to these foreign jurisdictions. Starwood’s Brief at bar criticizes Plaintiffs’ use of federal cases to support its position on this point, and asserts that the federal law is not binding on this Court. Starwood’s Brief at 44-45. Starwood’s position is surprising, to say the least, given that an overwhelming number of cases is cited in its Brief conditioned dismissal upon consent to jurisdiction, acceptance of service, and waiver of any defense of the statue of limitations. See, Bewers v. Am. Home Prods. Corp., 99 A.D.2d 949 (1st Dept. 1984) (“Defendants’ motion to dismiss is granted on condition that . . . {00139280;1} 15 defendant-appellants stipulate: (1) to waive objection to suit being brought in the United Kingdom for the relief sought in the complaint herein and to waive objection to jurisdiction of the courts of the United Kingdom in this matter; (2) to accept the service of process in the United Kingdom; (3) to waive objection to compulsory process requiring the appearances of witnesses and production of documents and to make the same available at their expense; (4) to consent to full faith and credit for any judgment obtain against them in the United Kingdom and to consent to pay same; and (5) to waive any defense of limitation of time, whether statutory or otherwise . . .”; Brinson, supra (dismissal conditioned upon acceptance of process in new action and waiver of statute of limitations defenses); Healy v. Renaissance Hotel Operating Co., 282 A.D.2d 363 (1st Dept. 2001) (dismissal conditioned upon acceptance of process and submission to jurisdiction to the courts of Granada and waiver of the statute of limitations or lack of jurisdiction or otherwise as a defense); Matter of Oxycontin II, supra (reversing lower court’s order “on condition that defendants stipulate (1) that they would accept service of process . . . ; (2) that they waive any defenses which were not available to them in New York . . .; and (3) that, in the new forum they would not raise any objection to having their home-office employees appear for deposition or trial on the ground of venue or a location of the law suit . . .”); Kuwaiti Engn’g Group, supra (dismissal contingent upon defendant’s consent to jurisdiction of the {00139280;1} 16 courts of Kuwait and France); Adamowicz v. Besnainou, 58 A.D.3d 546, 872 N.Y.S. 2d 47 (1st Dept 2009) (dismissal conditioned on defendants making themselves amenable to service and process in France and waive any statue of limitations defenses); Silver v. Great Am. Ins. Co., 29 N.Y.2d 356, 328 N.Y.S. 2d 398 (1972) (dismissal conditioned upon defendant agreeing to accept service of process in Hawaii and waiving any defenses of statue of limitations). See also Jackham v. Nature’s Bounty, Inc. 70 A.D. 3d 1000; 895 N.Y.S. 2d 508 (2d Dept. 2010) (reversal on condition that defendant stipulate to accept service of process and waive any defenses including stature of limitations not available in New York); Kargbo-Turay v. Beam Brothers Trucking Co., Inc., 65 A.D.3d 1290; 885 N.Y.S. 2d 615 (2d Dept. 2009) (reversal on condition that defendant agree to accept service of process and waive defenses of statue of limitations not available in New York). Based upon the Starwood’s concession in its Supreme Court moving papers, and the prevailing case law, the Supreme Court erred as a matter of law in not conditioning its dismissal upon Starwood consenting to jurisdiction in the three other countries, accepting service of process on behalf, and waiving all defenses based on statue of limitations. By failing to so expressly condition its dismissal, the Supreme Court effectively foreclosed Plaintiffs’ already limited ability to bring a claim in one of the other identified forums. This failure by the Supreme Court constitutes reversible error. CONCLUSION For the reasons stated in the Plaintiffs' Brief and herein, Plaintiffs respectfully request this Court reverse the Dismissal Decision and to reinstate the Complaint. Alternatively, should this Court decide to affirm the Supreme Court's dismissal on forum non conveniens ground, at a minimum, Plaintiffs respectfully request this Court condition its decision on Starwood consenting to the relevant foreign jurisdictions, accepting service of process and waiving the above-specified defenses. New York, New York June 25,2012 Respectfully submitted, BALLON STOLL BADER & NADLER, P.C. By: -----I<-,Z._~_---J:..--__,_ff_--cY-:.....--~___.· . ",,*. _ Vano Haroutunian~ Michael H. DuBoff Attorneys for Plaintiffs, Thomas Boyle, Catherine Boyle and Elodie Nogues 729 Seventh Avenue -- 17th Floor New York, New York 10019 (212) 575-7900 {00139280;1 } 17 CERTIFICATE OF COMPLIANCE Pursuant to 22 NYCRR § 670.10.3(f) The foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double 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 citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 3,952.