Chapter 5 VENUE, FORUM NON CONVENIENS AND REMOVAL

Transcription

1 0001 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST 1 Chapter 5 VENUE, FORUM NON CONVENIENS AND REMOVAL Synopsis PART A: PROCEDURAL CONTEXT 5.01 Procedural Context Venue, Forum Non Conveniens and Removal PART B: DETERMINING VENUE 5.02 Checklist for Determining Venue 5.03 Determining Venue in Various Actions [1] Determining Venue in Transitory Actions [2] Determining Venue in Real Property Actions [3] Determining Venue in Actions to Recover Chattel [4] Determining Venue in Actions Based on Consumer Credit Transactions [5] Chart: Determining Residence of Certain Entities and Fiduciaries for Purposes of Venue [6] Chart: Determining Venue in Actions Involving Governmental Entities and Authorities [7] Chart: Determining Venue in Special Proceedings 5.04 Enforcing Written Agreements Fixing Venue PART C: CHANGING OR RETAINING VENUE 5.05 Checklist for Moving for Change of Venue 5.06 Moving for Change of Venue [1] Demanding Change of Venue; Moving for Change of Venue Based on Designation of Improper County [2] Moving for Change of Venue Based on Inability to Obtain Impartial Trial [3] Moving for Change of Venue Based on Convenience of Witnesses and Ends of Justice 5.07 Cross-Moving to Retain Venue 5.08 Appealing from Order Changing Venue 5 1

2 0002 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST 30 NEW YORK CIVIL LITIGATION 5 2 PART D: FORUM NON CONVENIENS 5.09 Checklist for Moving for Stay or Dismissal Based on Forum Non Conveniens 5.10 Moving for Stay or Dismissal Based on Forum Non Conveniens [1] Determining Basis for Moving for Stay or Dismissal Based on Forum Non Conveniens [2] Evaluating Forum Non Conveniens Motion [a] Standards for Grant of Forum Non Conveniens Motion [b] Transactions and Agreements Not Subject to Forum non Conveniens Motions [c] Effect of Forum Selection Clause PART E: REMOVAL TO ANOTHER NEW YORK COURT 5.11 Checklist for Moving for Removal to Another New York Court 5.12 Moving for Removal to Another New York Court [1] Moving for Removal Based on Mistake [2] Moving for Removal Based on Request for Additional Relief 5.13 Removal by Court [1] Removal Downward by Court on Consent [2] Removal Downward by Court Without Consent

3 0003 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST VENUE, FORUM NON CONVENIENS AND REMOVAL PART A: PROCEDURAL CONTEXT Procedural Context Venue, Forum Non Conveniens and Removal Venue concerns the county in which an action should be commenced. It does not concern the power of a court to hear a dispute or jurisdiction over the parties. The general venue provisions are contained in CPLR Article 5. The proper venue for a particular action depends on a variety of factors including the nature of the action and where the parties reside. Certain courts present advantages or disadvantages to a particular party. For example, a review of jury verdicts in personal injury or medical malpractice actions reveals that Bronx County and Kings County juries generally return much larger verdicts than do Nassau County or Suffolk County juries. Selecting the venue can have a significant impact on the outcome of the case. A successful motion to change venue results in the transfer of the action to another county. Failure to object to venue will result in a waiver. The court cannot change venue sua sponte. A motion for change of venue of an action should not be confused with a motion to dismiss or stay an action on forum non conveniens grounds (inconvenient forum). If a court finds that an action should be heard in another forum, it can stay or dismiss the action in whole or in part on any conditions that may be just in the interest of substantial justice. CPLR 327. This codification of the common law doctrine of forum non conveniens is invoked in cases that have no significant contacts with New York, although there is jurisdiction over the defendant. The term removal as used in this chapter should not be confused with removal of a state court action to federal court. Rather, it refers to removing an action from one New York state court to another. CPLR 325.

4 0004 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST NEW YORK CIVIL LITIGATION PART B: DETERMINING VENUE Checklist for Determining Venue Bring transitory actions in county in which any party resided when action is commenced. CPLR 503(a). See 5.03[1] below. Bring local actions (actions involving title or injury to real property) in county in which any part of property is located. CPLR 507. See 5.03[2] below. Bring action to recover chattel (replevin) in county in which any part of chattel is located. CPLR 508. See 5.03[3] below. If case is brought under specific act or statute, check act or statute for specific venue provisions. For example, actions based on consumer obligations are subject to venue provisions of that statute. CPLR 503(f). See 5.03[4] below. Determine whether the type of party suing or being sued controls or affects venue. Actions subject to specific venue rules include the following: Actions involving governmental entities and authorities. CPLR 504, 505. See 5.03[6] below. Actions against executors, trustees, administrators, committees, conservators, or receivers in representative capacities. CPLR 503(b). See 5.03[5] below. Actions against corporations, railroads, unincorporated associations, partnerships, or assignees. CPLR 503(c), (d), (e). See 5.03[6] below. Prepare complaint containing allegations sufficient to establish venue. See 5.03[1] below. If action is based on consumer credit transaction, prepare proof of service to file with summons. See 5.03[4] below. File summons and notice in proper court. See 5.03[4] below.

5 0005 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST VENUE, FORUM NON CONVENIENS AND REMOVAL 5.03[1] Search Advisor: Civil Procedure > Venue > General Venue Investigate Parties on lexis.com. See Intro.09 above Determining Venue in Various Actions [1] Determining Venue in Transitory Actions A transitory action is one in which venue is determined by residence, as opposed to real property actions (CPLR 507), actions to recover a chattel (CPLR 508), or instances where there has been a prior agreement fixing venue (CPLR 501)). Venue in a transitory action lies in the county in which one of the parties resided when the action was commenced. If none of the parties resides in the state, the plaintiff may designate the venue. A party who resides in more than one county is deemed a resident of each county. CPLR 503(a). But see 5.03[7] below (special proceedings). z Strategic Point: The dispositive date for determining residency is the date on which the action was commenced. Frequently, however, the allegations in a complaint begin with the words: At all times hereinafter mentioned, and may not provide the residence of the parties at the time the action was commenced. A defendant is well advised to determine early on, by written or oral disclosure, the residence of the plaintiff at the time the action was commenced. See 5.06[1] below (moving for change of venue on the ground that the designated county is improper). The type of party suing or being sued may also affect venue. See 5.03[5] below (determining the residence of certain parties, for example, partnerships, corporations). See also 5.03[6] below (determining the proper venue of actions involving governmental entities and authorities) and 5.03[7] below (determining venue in special proceedings). Frequently, the plaintiff can select from several available venues. Plaintiffs should be aware, however, that a judge who detects forum shopping will be more likely to grant a motion for change

6 0006 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST [2] NEW YORK CIVIL LITIGATION 5 6 of venue. See 5.06 below. Moreover, losing a motion for change of venue will be time consuming and potentially costly if the court orders payment fees and costs or imposes sanctions. z Strategic Point: Consider witness availability, jury pool, costs, time, availability of records, and potential judges, all of which play a role in making an effective venue choice. Ch CPLR Manual NYCRR (coordination of related actions pending in more than one judicial district). [2] Determining Venue in Real Property Actions The proper venue of an action in which the judgment would affect the title to, or the possession, use or enjoyment of, real property is any county in which a part of the property is located. CPLR 507. A real property action is a local action, as opposed to a transitory action. Common types of real property actions include ejectment, partition, dower, mortgage foreclosure, waste, nuisance, trespass, breach of contract for the sale of real property and actions affecting a leasehold interest. Ch CPLR Manual [3] Determining Venue in Actions to Recover Chattel An action to recover chattel, sometimes called a replevin action, may be brought in the county in which any part of the chattel is located at the time the action is commenced. CPLR 508. The statute

7 0007 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST VENUE, FORUM NON CONVENIENS AND REMOVAL 5.03[4] uses non-mandatory language, that is, may, hence the plaintiff may also use the venue provisions applicable to a transitory action. See CPLR 503(a) and 5.03[1] above. If the replevin action concerns a consumer credit transaction, then CPLR 503(f) applies. See 5.03[4] below. Ch CPLR Manual [4] Determining Venue in Actions Based on Consumer Credit Transactions If the defendant is a purchaser, borrower, or debtor in an action arising out of a consumer credit transaction, venue is in the county where the defendant resides if within New York, or where the transaction took place if within New York. CPLR 503(f). If the defendant is a non-resident and the transaction occurred outside New York, CPLR 503(a) (venue in transitory actions) applies. See 5.03[1] above. t Warning: In an action arising out of a consumer credit transaction, the words "Consumer Credit Transaction" are to be displayed prominently at the top of the summons. The clerk will not accept a summons for filing if it appears on the face of the summons that the proper venue is another county. CPLR 513(a). If the rejected summons is thereafter filed in the proper county, service is complete 10 days after filing. Together with the summons, the plaintiff must also file the following: 1. Proof of service of the summons; and 2. Proof of service by registered or certified mail of a notice setting forth: a. Proper county;

8 0008 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST [5] NEW YORK CIVIL LITIGATION 5 8 CPLR 513(c). b. Date of filing of the summons; c. Date when the answer or notice of appearance must be filed; and d. Address at which it must be filed. In practice, most consumer credit transaction cases are filed in the inferior civil courts, that is, Civil Court or District Court. The practitioner should refer to the rules of those courts for the appropriate venue and filing requirements. Ch CPLR Manual Bender s Forms for the Civil Practice Form No. CPLR 513:1, Form No. CPLR 513:2. CPLR 105(f) (definition of consumer credit transaction). CPLR 305(a) (summons in actions arising out of consumer credit transactions and the general requirements in Supreme Court and County Court actions that the summons bear the index number assigned and the date of filing with the clerk of the court ). [5] Chart: Determining Residence of Certain Entities and Fiduciaries for Purposes of Venue PARTY Executor, Trustee, Administrator, Committee, Conservator, General Guardian, Testamentary Guardian, Receiver RESIDENCE County of appointment or where he or she actually resides. CPLR 503(b). Corporation (domestic or foreign corporation authorized to transact business) Principal office. CPLR 503(c).

9 0009 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST PARTY VENUE, FORUM NON CONVENIENS AND REMOVAL RESIDENCE 5.03[6] Railroad or Common Carrier Unincorporated Association Partnership or Individually Owned Business Assignee Principal office or where cause of action arose. CPLR 503(c). Where president or treasurer suing or being sued on its behalf actually resides or principal office of association. CPLR 503(d). Principal office or where partner or individual owner suing or being sued actually resides. CPLR 503(d). In action for sum of money only brought by assignee, assignee s residence is deemed the same as the original assignor at the time of original assignment (exception: assignee for benefit of creditors or holder in due course of negotiable instrument). CPLR 503(e) , , , , , , , CPLR Manual Bender s Form for the Civil Practice Form No. CPLR 503:4, Form No. CPLR 510:9. [6] Chart: Determining Venue in Actions Involving Governmental Entities and Authorities ACTIONS AGAINST VENUE County In county. CPLR 504(1). City (except NYC) In county where city is situated. CPLR 504(2). Town In county where town is situated. CPLR 504(2). Village School District or District Corporation In county where village is situated. CPLR 504(2). In county where school district or district corporation is situated; if situated in more than one county, then in each. CPLR 504(2).

10 0010 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST [7] NEW YORK CIVIL LITIGATION 5 10 ACTIONS AGAINST VENUE New York City Public Authority (by or against) New York City Transit Authority In county where claim arose or if it arose outside of city, then in New York County. CPLR 504(3). County of principal office or where facilities involved in action are located. CPLR 505(a). In county within New York City in which cause of action arose; if cause of action arose outside of city, then in New York County. CPLR 505(b). Chs. 504, 505. CPLR Manual [7] Chart: Determining Venue in Special Proceedings PROCEEDINGS AGAINST Generally VENUE Any county within judicial district where proceeding is triable, except as set forth below in CPLR 506(b) or law authorizing the proceeding. CPLR 506(a). Body, Officer Justice or Judge In county within judicial district where determination or refusal made or where proceedings brought or taken or where material events took place or where principal office of respondent is located, except as set forth below. CPLR 506(b). See CPLR In Appellate Division in Judicial Department where action is triable; if not in session, then in adjoining department. CPLR 506(b)(1).

11 0011 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST VENUE, FORUM NON CONVENIENS AND REMOVAL 5.04 PROCEEDINGS AGAINST Regents of University of New York State, the Commissioner of Education, the Commissioner of Taxation and Finance, the Tax Appeals Tribunal (but see Tax Law 2016), the Public Service Commission, the Commissioner or the Department of Transportation (relating to particular articles in the Transportation Law or the Railroad Law), the Water Resources Board, the Comptroller, or Department of Agriculture and Markets Commissioner of Education concerning children with handicapping conditions New York City Tax Appeals Tribunal VENUE Supreme Court, Albany County, except as set forth below. CPLR 506(b)(2). In the Supreme Court in the petitioner s county of residence, or in Albany County as set forth above. CPLR 506(b)(3). Appellate Division, First Department. CPLR 506(b)(4). Chs. 504, 506. CPLR Manual Written Agreements Fixing Venue Written agreements fixing venue made before the action is commenced may be enforced by bringing a motion to change venue. The motion will be successful unless the court is convinced that an impartial trial in the selected venue cannot be had. CPLR 501, 510(2).

12 0012 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST NEW YORK CIVIL LITIGATION 5 12 Ch CPLR Manual 5.03.

13 0013 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST VENUE, FORUM NON CONVENIENS AND REMOVAL 5.06[1] PART C: CHANGING OR RETAINING VENUE 5.05 Checklist for Moving for Change of Venue Determine whether change of venue is necessary or would benefit client. See 5.03, 5.04 above. Determine whether venue was proper when and where case was filed by analyzing applicable venue statutes. CPLR 501, 503, 507, 508. See 5.03, 5.04 above. Ascertain whether any of the following grounds for change of venue apply: CPLR 510. Action not filed in proper court. See 5.06[1] below. Impartial trial cannot be had. See 5.06[2] below. Convenience of witnesses and ends of justice require change of venue. See 5.06[3] below. Draft motion for change of venue, supporting affidavits and proposed order. See 7.02 below. Serve and file motion following standard procedures for noticed motions. See 7.02 below. Search Advisor: Civil Procedure > Venue > Change of Venue Generally 5.06 Moving for Change of Venue [1] Demanding Change of Venue; Moving for Change of Venue Based on Designation of Improper County If plaintiff designates venue in the wrong county, it is imperative that the defendant act quickly. s Timing: Defendant must serve a demand for change of venue, specifying the proper county, before or with the answer. CPLR 511(a). If within five days after service of the demand, the plaintiff does not consent to the change, the defendant may move within 15 days

14 0014 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST [2] NEW YORK CIVIL LITIGATION 5 14 of service of the demand to change venue. The defendant may notice the motion in the county defendant specifies as proper, or in the county in which the action was commenced. However, if the plaintiff, within five days of service of the demand, serves an affidavit showing either that the county specified by the defendant is improper or that the county designated by the plaintiff is proper, the defendant must bring the motion in the county in which the action is pending. CPLR 511(b). The motion for change of venue will be granted unless the plaintiff can show via a cross-motion that an impartial trial cannot be had in the county designated by defendant or the convenience of witnesses and the interests of justice will not be served by the change. After the answer is filed, the court has discretion to reject a motion for change of venue on the basis that the county designated is improper. Chs. 510, 511. CPLR Manual Bender s Form for the Civil Practice Form No. CPLR 503:1, Form No. CPLR 503:2, Form No. CPLR 503:5. [2] Moving for Change of Venue Based on Inability to Obtain Impartial Trial A motion for change of venue may also be based on a party s inability to obtain an impartial trial in the pending venue. CPLR 510(2). The motion should be made within a reasonable time after commencement of the action. CPLR 511(a). A motion on these grounds must be made in the county in which the action is pending CPLR Manual 5.06.

15 0015 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST VENUE, FORUM NON CONVENIENS AND REMOVAL 5.06[3] [3] Moving for Change of Venue Based on Convenience of Witnesses and Ends of Justice The most prevalent ground for a motion for change of venue is the convenience of witnesses. The motion should be made within a reasonable time after commencement of the action. CPLR 571(a). Generally, the courts are more concerned with the convenience of certain witnesses as opposed to others; for example, the convenience of non-parties as opposed to parties, and fact witnesses as opposed to expert witnesses. z Strategic Point: If a motion for change of venue is based on the convenience of witnesses, the movant should include an affidavit setting forth the identity, addresses, and occupations of the proposed witnesses, their expected testimony, the need for their testimony, and the actual inconvenience the witnesses will experience. Ideally, the witnesses should submit affidavits. If that is not practical, the practitioner should consider hiring an investigator to conduct interviews of the witnesses and submit the investigator s affidavit detailing the interviews. If neither of these options is feasible, the practitioner should prepare an affidavit or affirmation with as much detail as possible. Ch CPLR Manual Feldman v. North Shore Univ. Hosp., 157 A.D.2d 831, 550 N.Y.S.2d 420 (2d Dep t 1990) (motion to change venue denied because defendant failed to demonstrate that nonparty witnesses would be inconvenienced by having trial in adjacent county). Wecht v. Glen Distribs. Co., 112 A.D.2d 891, 493 N.Y.S.2d 313 (1st Dep t 1985) (convenience of parties and their employees not considered on change of venue motion).

16 0016 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST NEW YORK CIVIL LITIGATION Cross-Moving to Retain Venue In opposing a motion to change venue, the plaintiff should serve a notice of cross-motion to retain venue with the opposition papers. Bender s Form for the Civil Practice Form No. CPLR 503:3, Form No. CPLR 503:4, Form No. CPLR 503: Appealing from Order Changing Venue An appeal from an order changing venue must be taken in the department in which the motion for change of venue was heard and determined. CPLR 511(d) , CPLR Manual 5.06.

17 0017 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST VENUE, FORUM NON CONVENIENS AND REMOVAL PART D: FORUM NON CONVENIENS Checklist for Moving for Stay or Dismissal Based on Forum Non Conveniens Determine if defendant should move to stay or dismiss action on grounds of inconvenient forum. CPLR 327. See 5.10[1] below. Consider whether action may be more appropriately and justly tried elsewhere. See 5.10[2] below. Factors to consider include the following: Residence of parties. Place where transaction occurred. Burden on New York courts. Potential hardship to defendant. Availability of alternative forum. Location and convenience of material witnesses. Location of material documents and evidence. Plaintiff s interests. Assignee status of plaintiff. Applicability of foreign law. Foreign forum having substantial interest in adjudicating action. Determine whether alternative forum is suitable place for trial. See 5.10[2] below. Weigh advantage of plaintiff s choice of forum. Weigh advantage of alternate forum. Prepare notice of motion to stay or dismiss the action and accompanying papers. See 7.02 below. Search Advisor: Civil Procedure > Venue > Forum Non Conveniens

18 0018 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST [1] NEW YORK CIVIL LITIGATION Moving for Stay or Dismissal Based on Forum Non Conveniens [1] Determining Basis for Moving for Stay or Dismissal Based on Forum Non Conveniens Forum non conveniens, like venue, affects neither subject matter jurisdiction nor personal jurisdiction. It is invoked in those instances in which the case has no significant contact with New York, for example, if jurisdiction was obtained over the defendant through tagging. See 2.03[2] above. Unlike a motion for change of venue, a motion relating to forum non conveniens can result in the dismissal or stay of the action. CPLR 327. A forum non conveniens motion must be made promptly. The court cannot, sua sponte, dismiss or stay the action on forum non conveniens grounds CPLR Manual [2] Evaluating Forum Non Conveniens Motion [a] Standards for Grant of Forum Non Conveniens Motion The standards that apply to the grant of a forum non conveniens motion are vague. Nevertheless, in ruling on a forum non conveniens motion, the court will consider the following factors, among others: 1. Residence of the parties. See Silver v. Great Am. Ins. Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398, 278 N.E.2d 619 (1972) (party s residence in New York is merely a factor to be considered; plaintiff s residence is a significant factor). See CPLR 327(a). 2. Place where the transaction out of which the cause of action arose occurred. 3. Burden on New York courts. 4. Potential hardship to the defendant.

19 0019 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST VENUE, FORUM NON CONVENIENS AND REMOVAL 5.10[2][b] 5. Availability of an alternative forum. See Varkonyi v. S.A. Empresa de Viacao A.R.G. (Varig), 22 N.Y.2d 333, 292 N.Y.S.2d 670, 239 N.E.2d 542 (1968) (absence of any other forum in which both defendants could be joined was factor to be considered). See also Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478 N.Y.S.2d 597, 467 N.E.2d 245 (1984), cert. denied, 469 U.S. 1108, 105 S. Ct. 783, 83 L. Ed. 2d 778 (1985) (not an abuse of discretion as a matter of law to grant motion even though no other forum might be available). 6. Location and convenience of material witnesses. 7. Location of material documents and evidence. 8. Plaintiff s interests. 9. Assignee status of the plaintiff. 10. Applicability of foreign law. See Shin-Etsu Chem. Co., Ltd. v. ICIC Bank Ltd., 9 A.D.3d 171, 178, 777 N.Y.S.2d 69, 74 (1st Dep t 2004) ( The applicability of foreign law is an important consideration in determining a forum non conveniens motion and weighs in favor of dismissal. ) 11. Foreign forum having substantial interest in adjudicating action. See Shin-Etsu Chem. Co., Ltd. v. ICIC Bank Ltd., 9 A.D.3d 171, 178, 777 N.Y.S.2d 69, (1st Dep t 2004). The court can deny the motion, or grant the motion and either stay or dismiss the action with or without conditions, such as the waiver of a defense of statute of limitations or the acceptance of service of process in another jurisdiction. [b] Transactions and Agreements Not Subject to Forum non Conveniens Motions If the action relates to a contract, agreement, or undertaking that is covered by GOL , a forum non conveniens motion cannot be granted. CPLR 327(b). GOL covers the following: 1. Transactions involving more than $1,000,000;

20 0020 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST [2][c] NEW YORK CIVIL LITIGATION Contracts, agreements, or undertakings that have a New York forum selection clause; and 3. Contracts, agreements, or undertakings that specify that New York law should govern (choice of law provision). [c] Effect of Forum Selection Clause t Warning: The practitioner should be careful to distinguish between mandatory forum selection clauses and permissive forum selection clauses or service of suit clauses. Generally, mandatory forum selection clauses will be enforced to defeat a forum non conveniens motion, regardless of the presence or absence of the factors enumerated above. See 5.10[2][b] above. See, e.g., Arthur Young & Co. v. Leong, 53 A.D.2d 515, 383 N.Y.S.2d 618 (1st Dep t 1976), appeal dismissed, 40 N.Y.2d 984, 390 N.Y.S.2d 927, 359 N.E.2d 435 (1976) (trial court abused its discretion by failing to consider agreement between parties as to the forum in which disputes had to be adjudicated). A permissive forum selection clause, on the other hand, does not manifest an intention to limit jurisdiction to a particular forum. See Brooke Group Ltd. v. JCH Syndicate 488, 87 N.Y.2d 530, , 640 N.Y.S.2d 479, 482, 663 N.E.2d 635 (1996) (service of suit clause obligating defendant to submit to the jurisdiction of a Court of competent jurisdiction within the United States did not preclude dismissal on forum non conveniens grounds). Ch CPLR Manual Bender s Form for the Civil Practice Form No. CPLR 327:1 et seq. Martin v. Mieth, 35 N.Y.2d 414, 362 N.Y.S.2d 853, 321 N.E.2d 777 (1974) (imposing conditions on grant of motion

21 0021 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST VENUE, FORUM NON CONVENIENS AND REMOVAL 5.10[2][c] to dismiss on forum non conveniens grounds, including defendant s agreement to accept service and appear in Canadian action and not to plead statute of limitations defense). Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S. Ct. 1522, 113 L. Ed. 2d 622 (1991) (evaluating enforceability of forum selection clause).

22 0022 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST NEW YORK CIVIL LITIGATION 5 22 PART E: REMOVAL TO ANOTHER NEW YORK COURT 5.11 Checklist for Moving for Removal to Another New York Court Consider whether action should be removed to another New York court. CPLR 325. See 5.12 below. Determine if mistake was made in selecting court in which to commence action. CPLR 325(a). See 5.12[1] below. Evaluate whether party is entitled to additional relief beyond court s jurisdiction. CPLR 325(b). See 5.12[2] below. Make motion in court that has jurisdiction. See 7.02 below. Prepare notice of motion to remove and accompanying papers. File affidavits describing changes in circumstances justifying demand for additional relief. Determine whether damages appear to be less than those demanded in the complaint and are within the jurisdiction of lower court. See 5.13[1] below. Reduce amount of damages demanded to amount within jurisdiction of lower court. Obtain consent of parties to removal to lower court. CPLR 325(c). If consent cannot be obtained, court may remove case down without consent. CPLR 325(d). See 5.13[2] below. Search Advisor: Civil Procedure > Venue > Generally

23 0023 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) J:\VRS\DAT\01282\5.GML --- AG_NY.sty --CTP READY-- v2.8 10/ POST VENUE, FORUM NON CONVENIENS AND REMOVAL 5.12[2] 5.12 Moving for Removal to Another New York Court [1] Moving for Removal Based on Mistake If a mistake was made in choosing a particular court in which to commence the action, the Supreme Court can remove the action to the proper court, on motion, on such terms as may be just. CPLR 325(a). For example, if the plaintiff sues in an amount that exceeds the jurisdictional limits of the court in which the action was commenced, on motion the case can be removed to a higher court. Ch CPLR 325(e) (removal from Supreme Court to Surrogate s Court); CPLR 325(f) (removal from County Court to Supreme Court); CPLR 325(g) (transfer from one local court to another). [2] Moving for Removal Based on Request for Additional Relief If the court where the action was commenced lacks jurisdiction to grant the relief that the parties are entitled to, the case can be removed to a court having jurisdiction. The motion is made to the court that has jurisdiction. If a jury trial is waived in the first court, it has no effect after removal. CPLR 325(b). For example, if the plaintiff brings an action in a lower court believing the damages to be less than the jurisdictional limit of the lower court but later discovers that the case is more serious, plaintiff may move for removal. Such a motion, typically in personal injury actions, should be made promptly and should include affidavits describing the apparent change in the plaintiff s condition. Ch. 325.

24 0024 VERSACOMP (4.2 ) COMPOSE2 (4.43) 10/21/05 (14:59) COMPOSITION RUN COMPLETED --- ERRORS: NONE --- PAGES: [1] NEW YORK CIVIL LITIGATION Removal by Court [1] Removal Downward by Court on Consent If it appears that the damages sustained are less than those originally demanded in the complaint and are within the jurisdictional limits of a lower court, the court where the action is pending can remove the case to the lower court. If all of the parties consent to the removal, any subsequent award will be limited to the jurisdictional limits of the lower court. CPLR 325(c). Consent is not required of a defendant who did not assert a counterclaim and over whom the lower court would have had jurisdiction if the action had originally been commenced there. CPLR 325(c). If a jury trial was waived in the first court, it has no effect after removal. Ch [2] Removal Downward by Court Without Consent A court may remove a case down to a lower court without the consent of the parties if it appears that the amount of damages sustained may be less than demanded. CPLR 325(d). In such a circumstance, the jurisdictional limits of the higher court remain in effect and the verdict or judgment can exceed the jurisdictional limits of the lower court. If a jury trial was waived in the first court, it has no effect after removal. Ch Offner v. Rothschild, 87 Misc.2d 565, 386 N.Y.S.2d 188 (Sup. Ct. Kings County 1976) (court has inherent power to send case down without consent and limit damages to jurisdictional limits of lower court).