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: Vano I. Haroutunian Time Requested: 15 Minutes 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 jltlt1 !Jork ~uprtmt ~ourt APPELLATE DIVISION - SECOND DEPARTMENT ------------------------------------------------------------------------X THOMAS BOYLE, CATHERINE BOYLE and ELODIE NOGUES, Statement against Plaintiffs-Appellants, Pursuant to CPLR 5531 STARWOOD HOTELS & RESORTS WORLDWIDE, INC., Docket No. Defendant-Respondent. 2011-10142 ------------------------------------------------------------------------X 1. The index number of the case in the Court below is 3607111. 2. The full names of the original parties are set forth above. There has been no change to the caption. 3. The action was commenced in the Supreme Court, Westchester County. 4. This action was commenced on or about January 27, 2011, by the filing of a Verified Complaint. Issue was joined by the service of a Notice of Motion to Dismiss on or about March 7, 2011. 5. The nature and object of the action: negligence. 6. The appeal is from the Order of the Honorable Sam D. Walker, dated September 21, 2011. 7. This appeal is being perfected with the use of a fully reproduced record on appeal. Table of Contents Page TABLE OF AUTHORITIES ii QUESTIONS PRESENTED 1 PRELIMINARY STATEMENT 1 PROCEDURAL HISTORY 10 ARGUMENT 13 POINT I THE COURT ERRED IN DISMISSING PLAINTIFF'S COMPLAINT ON FORUM NON CONVENIENS GROUNDS 13 A. The Court Erred as a Matter of Law By Shifting to Plaintiff the Burden of Demonstrating New York is the Proper Forum 13 B. Analysis of the Forum Non Conveniens Factors Shows the Court Abused its Discretion as a Matter of Law in Finding Defendant Carried its "Heavy Burden" and Granting Defendant's Motion to Dismiss 18 C. There is No Adequate Alternative Forum 19 1. Defendant's Residency Favors Retaining this Action In New York 22 2. New York is the Situs of the Underlying Actionable Events 23 3. The Lower Court Erred in Finding Defendant Carried its Heavy Burden of Establishing the Location of Evidence and Non-Party Witnesses Favors Dismissal 24 4. Defendant Would Not Suffer Any Hardship Litigating in New York 29 5. This Case Would Not Impose an Undue Burden on New York Courts 31 POINT II THE COURT ERRED BY FAILING TO CONDITION ITS DISMISSAL UPON DEFENDANT SUBMITTING TO THE JURISDICTION OF THE APPROPRIATE COURT IN THE UNITED ARAB EMIRATRES, UNITED KINGDOM AND/OR FRANCE , 34 CONCLUSION 36 Table of Authorities Federal Cases Page Mirian Ramirez de Arrellano v. Starwood Hotels & Resorts Worldwide, Inc., 448 F.Supp.2d 520 (S.D.N.Y. 2006) 23, 28, 31 Payne v. Jumeirah Hospitality & Leisure (USA) Inc., 808 F.Supp.2d 604 (S.D.N.Y. 2011) ; 17,35 State Cases Aboujdid v. Gulf Aviation Co., Ltd, 108 Misc.2d 175,437 N.Y.S.2d 219, ajj'd 86 AD. 2d 564, 448 N.Y.S. 2d 437 (1st Dept. 1982) 20, 30 Anagnostou v. Stifel, 204 AD.2d 61,611 N.Y.S.2d 525 (1st Dept. 1994) 14,22,23,25,26,28,31,32,33 Animalfeeds Int'l. Inc. v. Banco Espirito Santo E Comercial De Lisboa, 101 Misc.2d 379, 420 N.Y.S.2d 954 (Sup. Ct. N.Y.Co. 1979) 33 Banco Ambrosiano v. Artoc Bank & Trust, 62N.Y.2d 65, 476N.Y.S.2d64 (1984) 13,14,17,18,25,26,31 Banco Nacional Ultramarino SA. v.Money Center Trust Co., Ltd, 240 AD.2d 253, 659 N. Y.S.2d 734 (1 st Dept. 1997) 31 Banco Nacional Ultramarino, SA. v. Chan, 169 Misc. 2d 182,641 S.N.Y.2d 1006 (Sup. Ct. N.Y. County 1996) 21 Bank Hapoalim (Switzerland) Ltd v. Banca Intesa SP.A., 26 AD.3d 286 (1st Dept. 2006) 14, 15 Bock v. Rockwell Mfg. Co., Inc., 151 AD. 2d 629,543 N.Y.S. 2d 89, (2nd Dep't. 1989) 32 Chrysler Capital Corp. v. Citibank, NA., 186 AD.2d 393, 588 N.Y.S.2d 187 (1st Dept. 1992) 14 Continental Ins. Co. v. Garlock Sealing Technologies, LLC, 23 AD. 3d 287,805 N.Y.S 2d 18 (1st Dep't. 2005) 31,32 H&L BUts, Inc. v. Blitst 65 N.Y.2d 1014,294 N.Y.S.2d 91 (1985) 19 Intertec Contracting AlS v. Turner Steiner Int'l, 6 AD. 3d 1, 6, 774 N.Y.S.2d 14 (1st Dep't. 2004) 33 Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474,478 N.Y.S.2d 597 (1984) 15, 16, 18,33 J Reevi and Sons, Ltd. Grindlays Bank (Uganda) Limited, 37 N.Y. 2d. 220, 371 N.Y.S. 2d 892 , 22 11 Kronengold v. Hilton Hotel Corp., 166 A.D. 2d 325,560, N.Y.S.2d 1022 (Ist Dep't. 1990) 27,32 Kronengold v. Hilton Hotels Corp., 666 A.D. 2d 325, 561 N.Y.S. 2d 1022 (l st Dep't. 1990) 26 Mionis v. Bank Julius Baer & Co., Ltd., 9 AD.3d 280, 780 N.Y.S.2d 323 (1st Dept. 2004) 14,22,33 Munoz v. American Pacific Mining, Inc., 176 AD.2d 624,575 N.Y.S. 2d 67 (lst Dep't. 1991) 27 Neville v. Anglo American Management Corp., 191 A.D. 2d 240,594 N.Y.S.2d 747 (lst Dept. 1993) 20,22,27 Pentifallo, et. al., v. Hilton of Panama, S.A., 86 AD.2d 583, 447 N.Y.S. 2d 1 (1st Dep't. 1982) 33 Republic of Lebanon v. Sotheby's, 167 AD.2d 142, 561 N.Y.S.2d 566 (Lst Dept. 1990) 13, 14, 17,23 Sambee Corp. Ltd. v. Moustafa, 216 AD.2d 196,626 N.Y.S. 664 (1st Dep't. 1995) 33 Silver v. Great Am. Ins. Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398 (1972) 22 Xiu Zhang Yin v. Benett, 78 AD.3d 936, 911 N.Y.S.2d 422 (2nd Dep't. 2010) 18 Yoshida Printing Co. Ltd. v. Aiba, 213 AD.2d 275, 624 N.Y.S.2d 128 (I st Dept. 1995) 13, 14, 17,22,23,27,31 State Statutes CLPR § 327 18 CLPR § 327(a) , , 18 11l QUESTIONS PRESENTED 1. Did the lAS Court err, as a matter of law, in concluding that Defendant satisfied its heavy burden of demonstrating Plaintiffs' forum selection of New York is not in the interest of substantial justice and thereupon granting dismissal onforum non-conveniens grounds, notwithstanding Defendant's lack of evidentiary support and this action's substantial nexus to New York? 2. Did the lAS Court err, as a matter of law, when improvidently shifting to Plaintiffs the burden of showing that their forum selection was proper because Plaintiffs are not citizens of New York? 3. Did the lAS Court abuse its discretion by failing to condition its dismissal upon Defendant submitting to the jurisdiction of the appropriate tribunal in the United Arab Emirates, United Kingdom orland France, as Defendant offered to do in its moving papers? PRELIMINARY STATEMENT Plaintiffs Thomas Boyle ("Mr. Boyle") and Elodie Nogues ("Ms. Nogues") contracted Legionnaire's disease after being exposed to the Legionella bacteria while guests at a hotel' owned, operated, advertised, managed, maintained and controlled by Defendant Starwood Hotel & Resorts Worldwide, Inc. ("Starwood"). To this day, both Mr. Boyle and Ms. Nogues continue to suffer the debilitating effects of this life-threatening disease directly caused by Defendant's negligence, carelessness and/or recklessness. For this, Mr. Boyle and Ms. Nogues seek damages. Catherine Boyle ("Mrs. Boyle"), Mr. Boyle's wife, likewise seeks 1 The Westin Dubai Mina Seyahi Beach Resort and Marina (the "Hotel") 1 damages for the extraordinary emotional and physical demands she incurred which have dramatically altered her relationship with her husband as a result of his illness. Defendant, a hotel corporation of international reputation, has its worldwide headquarters in White Plains, Westchester County, New York. Plaintiff alleges Defendant, operated, managed, maintained and/or controlled its Hotel from its worldwide headquarters in White Plains, including, but not limited to, controlling, directing and making decisions concerning the inspection, repair and maintenance of the Hotel and its various systems (e.g., HV AC, hot water, internal and external spas, saunas, hot tubs). Accordingly, Plaintiffs brought their action in White Plains, Westchester County, New York. Notwithstanding this plainly substantial nexus to New York, the lower Court found it would be more convenient for Defendant to litigate Plaintiffs' claims in the United Arab Emirates or in England and France. As discussed below and demonstrated by the Record at bar, Defendant offered no evidentiary facts to support the Court below's conclusion that Plaintiffs' forum selection of New York was not in the substantial interest of justice. Plaintiffs, on the other hand, supplied the lower Court with compelling, credible evidence conclusively establishing that, on the balance, all of the relevant factors support New York - and only New York - is the proper and just forum for this 2 action. Nevertheless, on or about September 21,2011, the Supreme Court of New York, County of Westchester (Hon. Sam D. Walker) (the "Court"), issued a Decision and Order granting Defendant's motion to dismiss for forum non conveniens ("Dismissal Decision"). Plaintiffs respectfully submit that the Court abused its discretion as a matter of law in granting Defendant's motion to dismiss onforum non conveniens grounds. In addition, the Court compounded its improvident ruling by failing to condition its dismissal on Defendant submitting to the jurisdiction of the appropriate court in the so-called more "convenient" foreign forums, a condition to which Defendant expressly consented. Setting aside that Plaintiffs' foreign-law experts established most, if not all, of Plaintiffs' claims were either not cognizable in the other, far-away forums, or, if cognizable, they would be precluded and/or time-barred as a result of Plaintiffs filing in New York ---- because there ostensibly is no single country where all of the witnesses and documents are present, the issues Defendant raised in its motion to dismiss for forum non-conveniens can be equally raised to support dismissal in each of the other three countries discussed by the Court. Consequently, by failing to expressly condition its dismissal on Defendant submitting to the jurisdiction of the foreign courts, the Court effectively foreclosed Plaintiffs' already limited ability to bring a claim in one of the other 3 identified forums. Respectfully, this failure by the Court also constitutes reversible error. Therefore, it is respectfully submitted that under applicable legal precedents and the facts of this case, the Court's Dismissal Decision must be reversed and the matter remanded, whereupon Plaintiffs can hold Defendant accountable for its actions just three miles from its worldwide headquarters, in Westchester County, New York. FACTUAL BACKGROUND The factual background set forth below is based upon the factual allegations of the Complaint and the affidavits and exhibits thereto that comprise the "Record" on appeal. Starwood Hotels & Resorts Worldwide, Inc. Starwood is a corporation organized under the laws of the State of Maryland with its principal place of business in White Plains, New York. (R24-5) Westin Hotels & Resorts is one of Starwood's nine proprietary brand names. Relevantly, Plaintiffs' Complaint alleges that Starwood owned, operated, managed, maintained and/or controlled the Hotel where Plaintiffs contracted Legionnaire's disease from its worldwide headquarters in White Plains, New York; and, that Starwood 2 All references to the Record on Appeal are denoted as "R_" followed by the relevant page(s) therein. 4 publicly held itself out as, among other things, the parent company of the Hotel in such a manner as to lead the general public and hotel guests, including Plaintiffs, to believe they were dealing directly with Starwood, or an agent/servant or employee thereof. (R 13-16). The Complaint further alleges that as owners, operators, managers, maintainers and/or controllers of the Hotel property and premises, Starwood was responsible for the inspection, repair and maintenance of, including, but not limited to, the Hotel's heating, hot water, ventilation, internal and external spas, saunas, hot tubs, and air conditioning systems; and, as a direct consequence of Starwood's negligence, carelessness and/or recklessness in performing (or failing to perform) these duties, Plaintiffs contracted Legionnaire's disease. (R 25- 26) Mr. and Mrs. Boyle Mr. and Mrs. Boyle are citizens of the United Kingdom (UK). (R 13) The Boyles stayed at Defendant's Hotel between December 28, 2008 and January 6, 2009. (R 17) One day after checking out of Starwood' s Hotel and returning to the UK, on or about January 7, 2009, Mr. Boyle began exhibiting flu-like symptoms, appearing weak, pale and frail to his family. He experienced lethargy and difficulty getting out of bed. (R 18) Mr. Boyle's situation deteriorated over the next five or six days, and on January 13, 2009, he was rushed by ambulance to Mayday National Health in Croydon, UK. (R 18) After an initial examination, the 5 on-call doctor, Doctor Hassan, informed Mr. Boyle and his family that he believed Mr. Boyle had Legionnaire's disease and his chances for survival were unpredictable, but low. (R 18) Soon thereafter, Mr. Boyle's family doctor was advised of Mr. Boyle's condition, and he in tum called Dr. Stuart Webb, a physician at King Edward VII Hospital ("King Edward") with experience treating Legionnaire's disease. Mr. Boyle was transferred to King Edward on January 14, 2009. The following day, test results confirmed that Mr. Boyle was positive for the Legionella antigen. Mr. Boyle spent the next four days in the leU barely holding on for his life. During his two-week stay at King Edward, Mr. Boyle required intensive care and vast amounts of pharmacological drugs to combat his life threatening infection and collapsed lung. (R 18-19) Although Mr. Boyle was discharged from King Edward on January 28, 2009, he still continues to suffer debilitating health problems directly resulting from his near-death experience from Legionnaire's disease. He remains under an extensive pharmacological treatment regimen. He has been unable to return to the normal active and happy life which he had prior to contracting Legionnaire'S disease. (R 20) As a further consequence, Mrs. Boyle suffered extraordinary emotional and physical demands which have dramatically impacted her relationship with Mr. Boyle. (R 28-29) Ms. Nogues 6 Ms. Nogues was a guest of the Hotel between February 14 and February 21, 2009. On or about February 16, 2009, Ms. Nogues began feeling extremely weak and feverish, requiring treatment by a doctor from the Hotel. Her symptoms became worse and by February 19, 2009, her throat and lungs felt as if they were burning and her breathing became increasingly difficult and labored. Ms. Nogues required another visit from the Hotel's doctor who provided additional medicine to attempt to ease her symptoms. On February 21,2009, Ms. Nogues checked out of the Hotel and returned to France. (R 20-21) Over the next two or three days, Ms. Nogues' health continued to rapidly deteriorate. On February 24, 2009, Ms. Nogues was examined by her general medical doctor. Based upon her symptoms, the doctor prescribed medications. On March 2, 2009, Ms. Nogues was referred by her doctor to Dr. Journie Bruno, a specialist in infectious and tropical diseases. After examining Ms. Nogues, Dr. Bruno ordered a battery of tests that confirmed that Ms. Nogues was suffering from Legionnaire's disease. Over the next several months through the present, Ms. Nogues has continuously suffered from several debilitating health issues directly caused by her Legionnaire's disease, including, but not limited to, a significantly compromised and deficient immune system, becoming easily fatigue, and coping with symptoms of depression, sadness and anxiety. As a result, Ms. Nogues is, among other things, still dangerously susceptible to contracting viruses, infections, 7 infectious diseases and other physical maladies, and is unable to return to the normal active and happy life that she had prior to contracting Legionnaire's disease. (R 21-22) Plaintiffs'Stays at the Hotel Were Contemporaneous with the Highly- Publicized and Publicly-Acknowledged Outbreak of Legionnaire's Disease at the Hotel Mr. Boyle's and Ms. Nogues' stays at the Hotel were contemporaneous with a widely-publicized outbreak of Legionnaire's disease at the hotel. On January 30, 2009, William Frindall, a world-renowned Cricket statistician and commentator, died from Legionnaire's disease. Mr. Frindall was a guest at the Hotel between January 14 and January 20, 2009. Mr. Frindall's death drew considerable media attention to the Hotel and the outbreak of Legionnaire's disease thereat. (R 24) Defendant issued a number of press releases relating to this occurrence. An example of one such press release stated in 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. [R 24] 8 In February 2009, a Starwood spokeswoman, Amalia Craig, was quoted in the media as making substantially similar statements regarding the Legionella outbreak at the Hotel and Defendant's "ongoing investigation." (R 25) Plaintiffs allege that as owners, operators, managers, maintainers and controllers of the Hotel's property and premises, Defendant was responsible for the inspection, repair and maintenance of the facility, including, but not limited, to the hotel's heating, hot water, ventilation, internal and external spas, saunas, hot tubs and air conditioning systems (collectively, "Systems"). Plaintiffs further allege that Defendant negligently, carelessly and/or recklessly: (i) caused, created and/or harbored dangerous and unsafe conditions in the maintenance of the Systems; (ii) did not employ and enforce proper and adequate maintenance programs, precautions, procedures, measures and plans for the detection and the eradication of the presence of Legionella bacteria in and from the Systems; (iii) failed to have and enforce an inspection program for the Systems; and (iv) failed to disclose and warn hotel guests of the unsafe presence of Legionella bacteria in the Systems and the dangers to those exposed to it.(R 25-26) The foregoing complained of misconduct which gave rise to Plaintiffs' injuries is directly caused by the actions, inaction, decisions and directions occurring, in substantial part, at Defendant's principal place of business in New York. (R 14-17) 9 PROCEDURAL HISTORY Plaintiffs' Commencement of the Action and Defendant's Motion to Dismiss Mr. and Mrs. Boyle originally brought an action against Starwood, Westin Hotels & Resorts Worldwide, Inc. ("Westin"), and the Hotel, in the United States District Court, Southern District of New York. The District Court dismissed that action, sua sponte, for lack of federal subject matter jurisdiction. (R 38, 56). On January 28, 2011 Plaintiffs commenced the instant action against Starwood only by filing a Summons and Complaint in the Supreme Court of New York, Westchester County. (R 26-32) On or about March 7, 2011, Starwood filed and served a Motion to Dismiss the Complaint for forum non conveniens pursuant to CPLR Section 327(a). (R 34-58) Plaintiffs responded on or about April 29, 2011 (R 59- 116) and Starwood submitted Reply papers on or about May 26, 2011. (R 117-126) On September 21, 2011 the Court (Hon. Sam D. Walker), without hearing oral argument, rendered the Dismissal Decision dismissing the complaint on/arum non conveniens grounds. (R 4-12) Notice of Entry of the Dismissal Decision was served on September 23, 2011. (R 3) On October 21, 2011, Plaintiffs timely filed their Notice of Appeal and Pre-Argument Statement respecting the Dismissal Decision. (R 2) 10 The Court's Dismissal Decision In its Dismissal Decision, the Court found - albeit erroneously, as discussed below - that the majority of the relevant factors were in favor of dismissal for forum non conveniens, and based thereon, granted Defendant's motion to dismiss. (R 8-9, 12). In addition, although Defendant agreed in its moving papers to consent to jurisdiction in the United Arab Emirates, Great Britain and/or France, the Court did not make that consent a condition to its dismissal. 3 As more fully described below, the Court's findings and conclusions were founded on a number of critical mistakes of law and fact that rendered its analysis fundamentally flawed. While acknowledging that Defendant had a "heavy burden" in challenging Plaintiffs' choice of forum, the Court held that Defendant met this burden based on nothing more than the following: (1) broad and unsubstantiated allegations in an affidavit of Defendant's Vice President and Associate General Counsel that unnamed witnesses and, "upon information and belief," unspecified documents, were located outside of New York. (R 57-58); (2) the fact that Plaintiffs were noncitizens of New York; and, (3) a counterfactual finding that Plaintiffs' claims do not have a substantial nexus with New York. (R 8-9) In reaching this ruling, first, the Court virtually ignored the fact that Defendant's principal place of business and worldwide headquarters is located in 3 The offer was contained in the conclusion of Starwood' s Memorandum of Law in Support of its motion to dismiss and, therefore, is not part of the Record on Appeal. 11 Westchester County, New York (R 13-14); second, that, from this Westchester location, Defendant is alleged to have overseen its worldwide operations, including, in particular, the Hotel where Plaintiffs contracted Legionnaire's disease (R 14-17, 24-26); and, third, that, as part of their opposition papers, Plaintiffs submitted several affidavits, including from experts in French law (R 71-79) and English law (R 80-86), explaining in no uncertain terms that France, the United Kingdom and the United Arab Emirates are not adequate alternatives to New York. 4 Based on the foregoing, and certain other findings in the Dismissal Decision, there is no apparent basis or explanation for the Court's statement in its Dismissal Decision that: "Both parties acknowledge that alternative forums exist in the United Kingdom, France and the United Arab Emirates." (R 8). In short, the Record at bar demonstrates that, on the one hand, Defendant completely failed to submit any credible, supporting evidence that remotely satisfies its "heavy burden" of showing Plaintiffs' action should be dismissed for forum non conveniens in the interest of substantial justice. On the other hand, 4 See, e.g, R 85 ("Plaintiffs' claims could not be pursued in England because (i) they are not sufficiently connected to England for Plaintiffs to establish jurisdiction and obtain permission of the [English] court to serve the claim form [ ] on Defendant, a United States corporation, for acts and omission occurring outside England; and, (ii) Mrs. Boyle'S loss of consortium claim is not recognized under English law. "); R 77 ("In summary, jurisdiction in France usually depends on the location of the defendant, here New York, subj ect to several exceptions not present here. Therefore, it appears that none of the plaintiffs could sue in France under its ordinary jurisdictional rules," and "in the event that ... the Supreme Court of Westchester County [grants Defendant's motion for] forum non conveniens, it is unlikely that [Ms.] Nogues could sue Starwood before the French court on the grounds of Article 14 of the [French] Civil Code.") 12 Plaintiffs, although not required to, submitted ample support that the relevant factors support their action belongs in New York. Nevertheless, Court concluded "it is clear that the majority of the factors weigh in favor of dismissal for forum non conveniens and defendant's motion is granted." (R 12) ARGUMENT POINT I THE COURT ERRED IN DISMISSING PLAINTIFFS' COMPLAINT ON FORUM NON CONVENIENS GROUNDS A. The Court Erred as a Matter of Law By Shifting to Plaintiff the Burden of Demonstrating New York is the Proper Forum It is well-settled that a defendant challenging a plaintiff s chosen forum on forum non conveniens grounds bears a "heavy burden of demonstrating that plaintiffs selection of New York is not in the interest of substantial justice." Yoshida Printing Co. Ltd. v. Aiba, 213 A.D.2d 275, 275, 624 N.Y.S.2d 128, 128 (1 st Dept. 1995); see also Banco Ambrosiano v. Artoc Bank & Trust, 62 N.Y.2d 65, 74, 476 N.Y.S.2d 64, 68 (1984) (defendant "had the heavy burden of demonstrating that the forum chosen by [plaintiff] is an inappropriate one."); Republic of Lebanon v. Sotheby's, 167 A.D.2d 142, 144,561 N.Y.S.2d 566, 568 (1 st Dept. 1990) ("The Supreme Court's denial of the cross motion for forum non conveniens dismissal was correct, since defendant . . . failed to meet its heavy burden of demonstrating plaintiffs choice of forum was an inappropriate one.") 13 Moreover, a defendant's "heavy burden" remains regardless of the fact that the plaintiff is a resident of a foreign country. See, e.g., Bank Hapoalim (Switzerland) Ltd. v. Banca Intesa S.P.A., 26 A.D.3d 286,287 (1st Dept. 2006); Mionis v. Bank Julius Baer & Co., Ltd., 9 A.D.3d 280, 282, 780 N.Y.S.2d 323, 325 (1st Dept. 2004) (Greek plaintiff residing in Switzerland); Yoshida Printing, 213 A.D.2d at 275,624 N.Y.S.2d at 128 (Japanese plaintiff); Anagnostou v. Stifel, 204 A.D.2d 61, 62, 611 N.Y.S.2d 525, 526 (1 st Dept. 1994) (Greek plaintiffs); Republic of Lebanon, 167 A.D.2d at 144, 561 N.Y.S.2d at 568 (Lebanese government as plaintiff). In all of these cases, the court found that the defendant failed to meet its "heavy burden," irrespective of the plaintiffs status as a non-resident of New York. See, also, Banco Ambrosiano, 62 N.Y.2d at 74, 476 N.Y.S.2d at 68. A plaintiffs' choice of forum is entitled to considerable deference by the Court. See Banco Ambrosiano, 62 N.Y.2d at 74, 476 N.Y.S.2d at 68; Chrysler Capital Corp. v. Citibank, NA., 186 A.D.2d 393,393, 588 N.Y.S.2d 187, 187 (1 st Dept. 1992). "Generally, unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed." A nagnosto u, 204 A.D.2d at 61,611 N.Y.S.2d at 525 (reversing granting of CPLR 327 motion, New York defendant, Greek plaintiffs). In the Dismissal Decision, the Court found that Defendant met its "heavy burden." (R 11-12) However, the Record on appeal is barren of any facts to 14 support such a conclusion; it is not enough for Defendant to suggest that another forum is available, or that New York would provide Plaintiffs certain advantages (or "conveniences") over Defendant's preferred forums. Therefore, the Court abused its discretion as a matter of law in dismissing the Complaint. More importantly and patently improvident, the Court shifted and imposed a burden upon Plaintiffs because of their status as nonresidents, holding that: "[A] nonresidential 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'. Pahlavi, 62 NY2d at 482." (R 8) As indicated, the Court relied on the decision in Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478 N.Y.S.2d 597 (1984). (R 7) However, it is respectfully submitted that the Court incorrectly interpreted Pahlavi and improperly shifted a burden on Plaintiffs to "show" their "choice" to proceed in New York was proper. Indeed, the court in Bank Hapoalim (Switzerland) explicitly recognized: "Pahlavi says nothing about shifting the burden where a nonresident plaintiff is involved. It merely says that nonresidence is one of several factors to be considered." 26 A.D.3d at 287. Consequently, to the extent the Court clearly, albeit improvidently, shifted a burden to Plaintiffs to "show" something to withstand Defendant's forum non conveniens, the Court committed legal error requiring reversal. 15 Moreover, even were Pahlavi not distinguishable from the facts at bar to the point of being expressionless' at most, Pahlavi held that "a plaintiff must be able to show more than its own convenience for selecting the forum when the choice imposes a heavy burden on the court and the defendant." Id., 62 N.Y.2d at 482, 478 N.Y.S.2d at 601 (emphasis added). As discussed below, it can hardly be said that the facts and circumstances of this case would impose a "heavy burden" on the Court or Defendant. Defendant's principal place of business and the heart of its worldwide operations are in Westchester County, New York. Although having no obligation to, Plaintiffs demonstrated legitimate reasons for selecting Westchester County Supreme Court to adjudicate this action. Under no circumstances could these reasons be deemed for Plaintiffs' convenience. Defendant, on the other hand, submitted in support of its motion a vague and self-serving conclusory affidavit of its Vice President and General Counsel which merely states that unspecified witnesses reside outside of New York, and that, "upon information and belief," unspecified documents and reports are in unspecified Starwood offices outside of New York and/or in other unspecified locations. (R 57-58) 5 Pahlavi is plainly distinguishable in several meaningful respects. First, unlike here, in Pahlavi both parties to the action were nonresidents of New York, a relevant factor the Pahlavi Court repeatedly noted militated against retaining jurisdiction. See,e.g., Pahlavi, 62 N.Y.2d at 479; at 480; at 482. Second, the Pahlavi Court's decision to dismiss was based in part on the complete lack of evidence showing the then-recently deceased defendant had assets in New York. Id. at 482 ("[P]laintiff claims the action should proceed in this jurisdiction because assets of the Shah are located here. Nothing before us establishes that fact, however ... "). Here, on the other hand, it is an undisputable fact that Defendant has assets in New York. 16 In addition, there is no basis in law, in fact, and, most critically, in the Record on appeal, to justify the Court's finding that "as in Payne [v. Jumeirah Hospitality & Leisure, USA, Inc.], the Plaintiffs [sic] are certainly forum shopping." (R 12) The Court's unsupported statement reinforces that it gave undue weight to Plaintiffs' status as New York noncitizens and improvidently shifted a burden upon them to justify their forum choice of New York. In any event, to the extent that the Court was permitted to impose upon Plaintiffs a burden of demonstrating "special circumstances" warranting retention of the action in New York (R 8), it is clear on the facts of this case that Plaintiffs have established such "special circumstances," namely, that a substantial nexus between Plaintiffs' claims and New York exists by virtue of Defendant controlling and overseeing its worldwide network of hotels, including the Hotel where Plaintiffs contracted Legionnaire's disease, from its New York headquarters. Conversely, Defendant woefully failed to carry its "heavy burden of demonstrating that [P]laintiffs' selection of New York is not in the interest of substantial justice" (Yoshida Printing, supra) or that it is "an inappropriate one." Banco Ambrosiano, supra; Sotheby's, supra. For the foregoing reason alone - namely, by relieving Defendant of its "heavy burden" and instead shifting it to Plaintiffs - the Court abused its discretion 17 III granting Defendant's motion to dismiss for forum non conveniens and, respectfully, its Dismissal Decision must be reversed and the matter remanded. B. Analysis of the Forum Non Conveniens Factors Shows the Court Abused its Discretion as a Matter of Law In Finding Defendant Carried Its "Heavy Burden" and Granting Defendant's Motion to Dismiss CPLR 327 codifies the doctrine offorum non conveniens and permits a court to "stay or dismiss" an action only "[w]hen the court finds that in the interest of substantial justice the action should be heard in another forum." CPLR 327(a) The doctrine "is flexible, requiring the balancing of many factors in light of the facts and circumstances of the particular case." Banco Ambrosiano at 62 N.Y.2d at 74, 476 N.Y.S.2d at 68. The court deciding aforum non conveniens motion to dismiss pursuant to CPLR 327(a) must consider and balance the following relevant factors, with no one factor being controlling: (1) the availability of an adequate alternative forum; (2) the residence of the parties; (3) situs where the underlying acts occurred; (4) the location of evidence and nonparty witnesses; (5) the potential hardship to the defendant; and (6) the burden on the New York courts. See, Pahlavi, 62, N.Y.2d at 479,278 N.Y.S.2d at 600. It is well-settled that "the burden is on the defendant challenging the forum to demonstrate 'relevant private or public interest factors which militate against accepting the litigation' in that forum" Xiu Zhang Yin v. Benett, 78 A.D.3d 936, 911 N.Y.S.2d 422 (2nd Dep't. 2010) (quoting Pahlavi, 62 N.Y.2d at 479, 278 N.Y.S.2d at 600). A court's failure to 18 consider and properly balance the relevant factors or circumstances constitutes reversible error. See H&L Blits, Inc. v. Blitst 65 N.Y.2d 1014, 1015,294 N.Y.S.2d 91, 100 (1985). Here, the Court did not properly consider and balance the relevant factors. Had it done so, it would have found that Defendant had not met its "heavy burden" and that the proper and just forum to litigate this dispute is New York. 1. There is no Adequate Alternative Forum The Court improvidently concluded this factor favors dismissing Plaintiffs' action based on its erroneous findings that Plaintiffs' claims could be maintained in the United Kingdom, France and/or Dubai, and that each of these forums presents an adequate alternative to New York. First, the Court's findings concerning Plaintiffs' ability to bring their claims in France and/or the UK are directly at odds with the affidavits of Plaintiffs' foreign law experts. (R 71-86) Along those lines, although the Court acknowledged that "[f]or Plaintiff Nogues who is a French National, Article 14, of the French Civil Code may prove an absolute bar to her ability to bring an action in France," the Court's inquiry and consideration of how this impacts the adequacy of this forum ends there. (R 9) With regard to Dubai, the Court explicitly recognizes that the United States Department of State has reported that in the UAE and Dubai, "there is not a fair and independent judiciary" as their "Constitution provided [because] in practice 19 court decisions remain subject to review by the political leadership and suffers greatly from nepotism." (R 9-10). The Court also notes that Plaintiffs' remedies outside of the United States "present significant procedural and practical obstacles such as no-jury trials, no contingency fees, limited or no discovery, lack of testimony and cross-examination, and lack of power to compel testimony," but claims none of these "dramatic differences between the litigation formats in the foreign jurisdictions and the United States ... rise to the level of making it [sic] an inadequate forum." (R 11). Contrary to the Court's analysis, however, the fact that dismissal of this case in New York will result in Plaintiffs facing substantial practical and procedural difficulties, including in obtaining pre-trial discovery, must be taken into account. See Neville v. Anglo American Management Corp., 191 A.D. 2d 240,594 N.Y.S.2d 747 (1 st Dept. 1993) (recognizing the limitation on pre-trial discovery in the United Kingdom as a basis for retaining the case in New York); see, also, Banco Nacional Ultramarino, S.A. v. Chan, 169 Misc. 2d 182, 192,641 S.N.Y. 2d 1006, 1012 (Sup. Ct. N.Y. County 1996); Aboujdid v. Gulf Aviation Co., Ltd., 108 Misc.2d 175, 178- 79, 437 N.Y.S.2d 219, 221, aff'd 86 A.D. 2d 564, 448 N.Y.S. 2d 437 (1 st Dept.1982); In addition, although the Court admits that under the laws of France, the United Kingdom and the United Arab Emirates and/or Dubai, there is no cause of 20 action for loss of consortium suffered by Ms. Boyle (R 8-9), the Court does not appear to weigh and balance this significant consequence whatsoever. (Id.) Nowhere in the Dismissal Decision does the Court consider the fact that the foreign courts may not have jurisdiction over Defendant, a Maryland corporation, with its principal place of business in New York (R 13). Finally, the Court appears to give undue weight to Defendant's attorney's reply affirmation, particularly, its assertion that prior to commencing this action in New York, Plaintiffs had the ability to obtain legal representation in Dubai. Defendant's attorney's affirmation is based on correspondence which, on its face, constitutes settlement communications, from a UAB attorney to the' Hotel, with regards to Mr. Boyle's claims. (R 10). Moreover, Defendant's attorney's affidavit acknowledges a patent conflict of interest by the Dubai attorney, stating "Ms. Panicker identified her firm, Ace, as the consultants of his Highness Sheikh Sagar Bin Mohamed Bin Zayed Al Nayhan'." (R'117) The Sheikh owns the Hotel property. (R 67) To the extent the Court's Dismissal Decision found this factor weighs in favor of dismissal based on the existence of an adequate alternative forum, clearly, the Court did not properly consider and balance the facts and circumstances. (R 8- 9, 12) 21 2. Defendant's Residency Favors Retaining this Action in New York Although Defendant's residence is no longer a controlling factor, it is an "important one"; Silver v. Great Am. Ins. Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398, 402 (1972); Yoshida Printing, 214 A.D.2d at 275,624 N.Y.S. 2d at 129 (denial of forum non conveniens' motion by New York defendant in an action by a Japanese plaintiff); Anagnostou 204 A.D.2d at 62, 611 N.Y.S.2d at 525 (a New York defendant in an action by Greek Plaintiffs); Neville, 191 A.D.2d at 243, 594 N.Y.S. 2d at 749 (reversing a dismissal of foreign plaintiffs' wrongful death and personal injury action against New York corporations arising out of a bus accident in England.) The fact that Defendant maintains its principal place of business in New York - indeed, just over three miles from the Westchester County Supreme Court Courthouse - favors New York as a forum for this litigation. See Yoshida Printing, 213 A.D.2d at 275, 624 N.Y.S.2d at 128 (affirming denial of New York defendant's CPLR 327 motion in Japanese plaintiffs action, holding, defendant's residence in New York "is an important factor in determining forum non conveniens. ") Furthermore, it is alleged in the Complaint and not disputed by Defendant, that Defendant directed and controlled the maintenance and clean up of the Hotel from its New York offices. The fact that Plaintiffs are not New York residents is not a basis to lessen Defendant's "heavy burden" for the motion to dismiss. See, e.g. Mionis 9 A.D.3d 22 at 282 780 N.Y.S.2d at 325; Yoshida Printing, 213 A.D.2d at 275, 624 N.Y.S.2d at 628; Anagnostou, 204 A.D.2d at 62, 611 N.Y.S. 2d at 521; Republic of Lebanon, 167 A.D.2d at 144, 561 N.Y.S.2d at 568.; See discussion in "Section A," supra. 3. New York is the Situs of the Underlying Actionable Events The uncontroverted allegations in Plaintiffs' Complaint support that Defendant's residence not only creates a substantial nexus justifying this case being heard in a New York court, but also, that New York is the situs where underlying actionable events originated. (R 14-17, 23-26). Specifically, the allegations in the Complaint, including quotes from Defendant's own press releases, provide ample evidence that Defendant "owned, operated, advertised, marketed and controlled" the Hotel from its New York headquarters in White Plains, and from that location, actively participated in the investigations and responsive actions taken following the outbreak of Legionnaire's disease at Hotel. (R 25-26) These indisputable facts clearly support New York is the situs of the underlying acts and favors retention of the action in New York. See Arrellano v. Starwood Hotels & Resorts Worldwide, Inc., 448 F.Supp.2d 520 (S.D.N.Y. 2006) ( denying Starwood' s forum non conveniens motion to dismiss where claims stemmed from incident at the Westin Palace in Madrid, Spain). The Court improperly held, without any factual support, that: "the events occurred in Europe and Asia and Starwood's post incident press releases and 23 monitoring the situation from its White Plains office do not make White Plains the situs of the harm." (R 10) First, it plainly appears the Court applied the wrong analysis, to wit, the relevant consideration is the "situs of the underlying actionable events," (citation omitted), not "the situs of the harm," as the Court states in its Dismissal Decision. As a consequence of this misapprehension, the Court outright disregarded (or at a minimum, failed to properly consider and weigh) the evidentiary facts showing that the policies and decisions concerning Defendant's operations of its hotels worldwide - including the policies and decisions which caused the failure to properly prevent andlor contain the spread of Legionnaire's disease at the Hotel - were in fact made by Defendant's employees and their agents at their principal place of business in White Plains, New York. Based on the foregoing, Plaintiffs respectfully submit that the Court erroneously concluded New York is not the situs of the underlying actionable events and that this factor weighs in favor of dismissal. Consequently, the Court abused its discretion and its Dismissal Decision should be reversed and the matter remanded. 4. The Lower Court Erred in Finding Defendant Carried its Heavy Burden of Establishing the Location of Evidence and Non-Party Witnesses Favors Dismissal "Broad allegations ... that witnesses and documents are located outside of New York are not sufficient" to satisfy the "heavy burden" of demonstrating a 24 plaintiffs choice of forum is inappropriate. Banco Ambrosiano 62 N.Y.2d at 74. Furthermore, the alleged presence of witnesses in foreign countries, while a factor for consideration, "does not automatically override plaintiffs 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 that any such testimony will be unobtainable in New York." Anagnostou v. Stifel, 204 A.D.2d 61,62,611 N.Y.S.2d 525 (lstDept. 1994). Here, Defendant failed to specify by name a single witness and alleged "upon information and belief, all of the documents relating to the events alleged in Plaintiffs Complaint are maintained outside New York" , (R 57-58). Notwithstanding the patent deficiencies, the Court accepted these "broad allegations" and found "as defendant argues, there is a significant amount of documentary evidence located overseas as well as the majority of witnesses." (R 7-8) The Court's finding in this regard is not only contrary to the above-cited and other New York authority, it is contrary to the Record on appeal. Namely, the Record establishes a significant amount of Defendant's activities concerning the operations of the Hotel, including, relevantly, Defendant's oversight, control and decision-making prior to, during and immediately following the Legionnaire's outbreak at the Hotel, took place at Defendant's worldwide headquarters in New York. (See, e.g., R 14-17, 24-26 (particularly relevant, Defendant's press releases 25 recited at ~~ 84 and 85 of Plaintiffs' Complaint expressly refer to Defendant's "thorough investigation with independent assessors, including leading ... U.S. based experts.") Moreover, it strains reason and logic to conclude that all the documents relating to the Legionnaire's outbreak at the Hotel are not currently at Defendant's New York headquarters, or, if not presently thereat, cannot be easily obtained from Defendant's branch offices. See Banco Ambrosiano, supra. Accordingly, it is respectfully submitted that the Court's reliance on Defendant's broad and unsubstantiated allegations concerning the availability of documents was erroneous, and its Dismissal Decision granting Defendant's motion based thereon was an abuse of discretion. Similarly, the Court's reliance on Defendant's unsupported assertions regarding the availability of witnesses is equally erroneous. Defendant unequivocally failed to carry its "heavy burden" of demonstrating this factor supports its motion to dismiss. First, the Record demonstrates Defendant failed to provide any list whatsoever specifically naming non-party witnesses who would be unobtainable or unavailable for depositions, or to testify at trial, in support of its motion. See, Anagnostou, 204 A.D.2d at 62, 611 N.Y.S.2d at 526; see, also, Kronengold v. Hilton Hotels Corp., 666 A.D. 2d 325, 327, 561 N.Y.S. 2d 1022, 1024 (1 st Dep't. 1990) (defendants' list of non-party witnesses in support of motion 26 to dismiss "does not compel the conclusion that New York would be a non conveniens forum. "). In addition to not providing any names, the Record further demonstrates Defendant made no showing with respect to the materiality of the purported testimony of any potential, albeit unnamed, witnesses. Yoshida Printing, 213 A.D. 2d at 27,624 N.Y.S. 2d at 128-129; Neville v. Anglo, 191 A.D. 2d at 242, 594 N.Y.S. 2d at 747. Second, the Court erred in accepting Defendant's meritless and counterfactual argument "that it [Defendant] will not be able to depose non-party witnesses overseas." (R 8) For starters, the few witnesses that Defendant alluded to in its motion are Defendant's "employees" (R57-58), which "demonstrates that there would be little inconvenience imposed on [Defendant] in obtaining meaningful testimony." Munoz v. American Pacific Mining, Inc., 176 A.D.2d 624, 625, 575 N.Y.S. 2d 67, 68 (lst Dep't. 1991) (Motion to dismiss for forum non conveniens denied in personal injury action against a Honduran mine owned by defendants with principal offices in New York); Kronengold, 166 A.D. 2d at 327, 560 N.Y.S. 2d at 1023 ("[A] number of the witnesses are present or former employees of defendants, and there is no indication that such persons are not still within defendant's control or would be unwilling to testify on defendant's behalf absent court ordered subpoena.") 27 In addition, the few witnesses Defendant identified by name are actually Plaintiffs' doctors, family members and friends (all of which are named in Plaintiffs' detailed Complaint), yet Defendant and the Court offer no reason -- not "even sheer speculation," why these witnesses would be unable or unwilling to be deposed or attend trial. See, Anagnostou, 204 A.D. 2d at 62, 611 N.Y.S.2d at 526. The fact is, in order to prevail in the action, obviously, Plaintiffs have the obligation to prove their case through these witnesses named in their Complaint, In other words, Plaintiff would have to make these non-party witnesses identified by Defendant available for depositions and at trial, at Plaintiffs' own expense, or risk losing their case. Third, the Court's acceptance of Defendant's contention that unspecified documents and unnamed witnesses are "unobtainable via New York subpoena" (R 8, 57-58) was erroneous. The United Kingdom and France are both signatories of the Hague Convention Taking Evidence Abroad in Civil and Commercial Matters, July 27, 1970, 23 U.S.T. 2555, 847 U.N.T.S. 231, and the Protocols under that treaty can be used to obtain evidence that is fully admissible in a New York court of law. See, Ramirez de Arellano, 448 F. Supp. 2d at 529 (noting "a court's ability to compel production of [documents] and other relevant evidence possessed by nonparty witnesses or to compel testimony of witnesses . . . is less of a 28 consideration in a case where the other forum is a Hague Convention and where both sides' evidence is beyond the subpoena power ofth[e] [New York] court."). In sum, Defendant's unnamed potential foreign witnesses and unsupported "information and beliefs" concerning the location of documents - all of which reason, logic and the Record suggest are already located in New York - was insufficient to carry its "heavy burden" of showing this factor supports dismissal of Plaintiffs' action on forum non conveniens grounds. Accordingly, the Court's finding to the contrary was in error. 5. Defendant Would Not Suffer any Hardship Litigating in New York Both the Dismissal Decision and the Record are devoid of any evidence demonstrating that Defendant would suffer a significant hardship if it were required to litigate this case in New York. Far from meeting its "heavy burden" of showing a hardship, as already discussed, Defendant offers nothing but an affidavit from its corporate counsel concerning unspecified witnesses and, "upon information and belief," unspecified documents are located outside of New York. (R 57-58) Here again, it appears the Court ignored the fact that many of the witnesses and documents that support Plaintiffs' theory of the case are located at Defendant's New York headquarters, where the critical decisions concerning the facts, circumstances and underlying actionable events giving rise to Plaintiffs' claims occurred. 29 The fact that New York is not the only location where relevant documents and witnesses are located does not make New York an inconvenient forum so as to require the transfer of this action to another country. See, Aboujdid v. Gulf Aviation Co., Ltd. 108 Misc.2d 175, 177-78,437 N.Y.S. 2d 219,221, aff'd 86 A.D. 2d 564, 448 N.Y.S.2d 437 (I" Dept. 1982) (Where possible forums were New York, the United Kingdom and Bahrain, the court determined that each of the jurisdictions had drawbacks and that New York was the best forum to resolve the dispute); Banco Nacional Ultramarino SA. v. Money Center Trust Co., Ltd., 240 A.D.2d 253, 659 N.Y.S.2d 734 (1 st Dept. 1997). Because the events in this case arguably took place in multiple countries, the requirements of access to foreign witnesses and documents would exist in whatever forum it is heard. That does not form a basis to conclude that litigating in New York would impose a substantial hardship on Defendant in defending an action in which its New York offices played a significant role. Moreover, Defendant is a multi-national corporation and is among the largest providers of hotels and resorts throughout the world. Clearly, it has far more resources and ability to produce witnesses and documents than the three individual Plaintiffs who were harmed by Defendant's misconduct which caused Plaintiffs' harm. 30 6. This Case Would Not Impose an Undue Burden on New York Courts The Court found that the applicability of foreign law is an important consideration in determining a forum non conveniens motion and weighed in favor of dismissal of the action. (R 10-11) However, the Record shows that Defendant did not offer sufficient support to justify the Court reaching such a conclusion. Specifically, "broad allegations that issues of [foreign] law will arise ... are not sufficient for th[ e] purpose" of demonstrating a plaintiff s choice of forum is inappropriate. Banco Ambrosiano, 62 N.Y. 2d at 74, 476 N.Y.S.2d at 68 (Bahamian Law); Yoshida Printing 213 A.D.2d at 275, 624 N.Y.S.2d at 129 ("[T]he potential necessity of applying Japanese Law [does not] render [ ] New York an inconvenient forum"); See, also, Anagnostou, 204 A.D.2d at 62, 611 N.Y.S.2d at 526. It also must be observed that "any choice of law issues presented by this litigation are not yet ripe for adjudication." Continental Ins. Co. v. Garlock Sealing Technologies, LLC, 23 A.D. 3d 287, 805 N.Y.S 2d 18 (Ist Dep't. 2005). Third, foreign law will not necessarily apply in this case." Fourth, "the courts of 6 See Ramirez de Arellano v. Starwood Hotels and Resorts Worldwide, lnc., 448 F.Supp. 520, 528 and 531 (S.D.N.Y. 2006). In that case, the Court observed: [T]he issue of [Starwood' s] responsibility for whatever negligence led to [plaintiffs' claims at Starwood's hotel in Spain] - issues of corporate law and vicarious liability -- is uniquely American and intrinsic to the law of the polity under which the corporation was created. (Internal citation omitted) The record is barren of any evidence that Spain would be an appropriate forum for litigating it. And this court cannot imagine that such issues - which are the essence of 31 New York are frequently called upon to apply the law of foreign jurisdictions and, should the necessity arise, will be fully capable of applying [foreign] law." A nagnosto u, 204 A.D.2d at 62, 611 N.Y.S. 2d at 526 (Greek Law); Kronengold v. Hilton Hotel Corp., 166 A.D. 2d 325, 327, 560, N.Y.S.2d 1022, 1023 (1 st Dep't. 1990) ("The application of Florida law with respect to defendant's duty of care would not unduly burden the New York Courts and does not required dismissal.") Although the application of foreign law is a consideration in a motion to dismiss forum non conveniens, "it is not a determinative factor, and [ ] court[s] will not be overly eager to dismiss an action on that ground when other factors militate against dismissal." Bock v. Rockwell Mfg. Co., Inc., 151 A.D. 2d 629, 630-31 543 N.Y.S. 2d 89, 90-91 (2nd Dep't. 1989). Like the numerous New York courts in the cases cited herein, here, there is no reason to doubt that the Court "would be perfectly capable of and would not be unduly burdened by applying [foreign] law, should the need arise." Continental Ins. Co. v. Garlock Sealing Technologies, LLC, 23 A.D. 3d 287,805 N.Y.S 2d 18 (15t Dep't. 2005). The concerns expressed by the Court in dismissing this action are inherent in any multi-national litigation. The circumstances and challenges presented in this case, including the potential need for foreign witnesses and Starwood's defense - are not better litigated in an American Court. Indeed, this Court made claims . .. that Spain would not be an adequate venue for litigating issues that turn on Maryland corporate law and limitations of liability in parent- subsidiary situations. It should go without saying that such issues are better left in an American court. 32 documents, are not umque or more difficult than those presented by other international cases addressed by the New York Courts. See, e.g. Mionis v. Bank Julius Baer & Co. Ltd., 9 A.D.3d 280, 282, 780 N.Y.S.2d 323, 325 (1 st Dep't. 2004) (Application of Greek Law); Intertec Contracting AIS v. Turner Steiner Int 'l, 6 A.D. 3d 1,6, 774 N.Y.S.2d 14, 18 (1st Dep't. 2004) (application of Shri Lanka Law); Anagnostou 204 A.D. 2d at 62, 611 N.Y.S. 2d at 526 (Greek Law and foreign witnesses); J Reevi and Sons, Ltd. v Grindlays Bank (Uganda) Limited, 37 N.Y. 2d. 220, 371 N.Y.S. 2d 892 (assuming jurisdiction over a litigation between an Israeli partnership and Ugandan Bank); Sambee Corp. Ltd. v. Mous tafa , 216 A.D.2d 196, 198, 626 N.Y.S. 664, 666 (L" Dep't. 1995); Pentifallo, et. al., v. Hilton of Panama, S.A., 86 A.D.2d 583,584,447 N.Y.S. 2d 1,2 (1 st Dep't. 1982) (applying Greek law relating to an accident occurring in Greece); Animalfeeds Int'l. Inc. v. Banco Espirito Santo E Comercial De Lisboa, 101 Misc. 2d 379, 420 N.Y.S. 2d 954 (Sup. Ct. N.Y.Co. 1979) (involving a Panamanian incorporation suing two Portuguese banks over the sale of a Norwegian built barge in Angolan waters to the Republic of Yemen). Unlike the Pahlavi case, 62 N.Y. 2d at 423, 1278 N.Y.S.2d at 602, where there was no New York nexus, here, Defendant is a New York resident, the Complaint sets forth, in detail, significant conduct occurring in New York, and none of this has been disputed by Defendant. 33 Based on the foregoing and a review of the Record, it is clear that the Court abused its discretion and erred as a matter of law in granting Defendant's forum non conveniens motion to dismiss pursuant to CPLR 327(a). The Court improperly shifted Defendant's "heavy burden" to Plaintiffs, and failed to consider and balance the relevant private and public interest factors. Had the Court conducted a fair analysis of these factors, it would have found that, on the balance, all support that Plaintiffs' choice of a New York forum was appropriate, and the Court's retention of the matter is "in the interest of substantial justice." Accordingly, respectfully, the Court's Dismissal Decision should be reversed and the matter remanded. POINT II THE COURT ERRED BY FAILING TO CONDITION ITS DISMISSAL UPON DEFENDANT SUBMITTING TO THE JURISDICION OF THE APPROPRIATE COURT IN THE UNITED ARAB EMIRATES, THE UNITED KINGDOM AND/OR FRANCE Presumably to induce the Court to grant its forum non conveniens motion to dismiss, Defendant, in the Conclusion section of its memorandum of law supporting its motion, 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 Emirates, United Kingdom and/or France." Despite this concession by Defendant, the Court did not make its dismissal subject to Defendant's consent to foreign jurisdiction. See Mirian Ramirez de Arellano v. 34 Starwood Hotels & Resorts Worldwide, Inc., 448 Supp.2d 520, 531-32 (S.D.N.Y. 2006) (denying forum non motion without prejudice, and stating: "I would decline to grant a motion to dismiss a motion to dismiss on forum non conveniens grounds unless the moving defendants were either amenable to suit in [foreign jurisdiction] or expressed a willingness to be sued there."); See also, Payne v. Jumeirah Hospitality & Leisure (USA) Inc., 808 F.Supp.2d 604, 605-06 (S.D.N.Y. 2011) (conditioning dismissal of action filed within weeks of Appellate Division's dismissal of plaintiff's state court litigation for forum non conveniens upon defendants' agreement consenting to the jurisdiction of the appropriate courts in Dubai and Great Britain for the litigation of the action, and to accept service of process if sued by plaintiff in either of those forums in connection with this action). Although the above-discussion establishes that the Court erroneously granted Defendant's motion to dismiss for forum non conveniens because Defendant failed to show any, much less the balance, of the relevant factors supported such a decision, should this Panel nevertheless decide to affirm the lower Court' dismissal onforum non conveniens grounds, respectfully, Defendants consent to submit to the jurisdiction of foreign courts must be made a condition of such a dismissal. Plaintiffs' experts on foreign-law explained that Plaintiffs would be precluded and/or time-barred from commencing actions in France and England as a result of, among other things, Plaintiffs commencing this action in New York 35 first. Moreover, because there ostensibly is no single country where all of the witnesses and documents are present, the issues Defendant raised in its motion to dismiss for forum non-conveniens can be equally raised to support dismissal in each of the other three countries discussed by the Court. Consequently, by failing to expressly condition its dismissal on Defendant submitting to the jurisdiction of the foreign courts, the Court effectively foreclosed Plaintiffs' already limited ability to bring a claim in one of the other identified forums. This failure by the Court also constitutes reversible error. CONCLUSION For the reasons set forth herein, Plaintiffs respectfully request this Court reverse the Dismissal Decision and reinstate the Complaint. New York, New York May 16,2012 BALLON STOLL BADER & NADLER, P.C. I BY:_Z 7/-=~"='="';;;~""""';£...&.....I....-=e=:;..._..;...M/~..........___ Vano Haroutunian ~ Michael H. DuBoff 729 Seventh Avenue - 1 ih Floor New York, New York 10019 212-575-7900 Attorneys for Plaintiffs, Thomas Boyle, Catherine Boyle and Elodie Nogues 36 PRINTING SPECIFICATIONS STATEMENT PURSUANT TO 22 NYCRR § 670.10.3(1) 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 hearings 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 8,490. 37