Dispute Involving Mostly Israeli Residents Dismissed on Forum Non-Conveniens GroundsPrint Article
- Posted on: Sep 27 2023
By: Jeffrey M. Haber
“The doctrine of forum non conveniens permits a US court to decline to exercise its judicial jurisdiction if the court would be a seriously inconvenient forum and if an adequate alternative forum exists.”1 The doctrine presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them.2 “The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion.”3
Under CPLR § 327, which codified the common law doctrine of forum non conveniens, a court may dismiss an action where “in the interest of substantial justice the action should be heard in another forum.” “The doctrine is based upon justice, fairness and convenience . . . and the burden is on the party challenging the forum to demonstrate that the action would be best adjudicated elsewhere.”4
Among the factors to be considered are the residence of the parties, the location of the transaction giving rise to the cause of action, the applicability of the laws of another state or country, the location of the witnesses and any pending discovery, the burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum where the plaintiff may bring suit.5 “No one factor is controlling,” since the doctrine is flexible in application and “based on the facts and circumstances of each case.”6
In Brandwein v. Hartig, 2023 N.Y. Slip Op. 04711 (1st Dept. Sept. 26, 2023) (here), the Appellate Division, First Department applied the foregoing principles in affirming the dismissal of an action involving Israeli defendants.
Brandwein v. Hartig
[Eds. Note: the background facts come from the parties’ briefing on appeal.]
Brandwein concerned alleged financial wrongdoing by defendants. Plaintiffs are New York residents, who claimed to be the “Personal Representatives” of the Estate of Zehava Greenberg (“Greenberg” or “Decedent”). At the time of her death in Israel in December 2019, Greenberg was an Israeli citizen, who resided in Jerusalem for several years.
Defendant Michael Hartig (“Defendant”) is the nephew of the Decedent and of Sheldon Greenberg (“Sheldon”), who predeceased the Decedent in Israel. He died in September 2019. Hartig resides in Pennsylvania, though plaintiffs maintained that he was a New York resident. Defendant Koatz is an attorney residing in New York.
Plaintiffs alleged that while Sheldon was alive, Defendant manipulated him to use marital assets to purchase an apartment in Jerusalem, without Decedent’s permission, allegedly in violation of Israeli law. According to Plaintiffs, following the purchase of the apartment by Sheldon, Defendant put the apartment in his name. Thereafter, Sheldon and Decedent moved into the Jerusalem apartment.
Plaintiffs claimed that after the purchase of the apartment, while Sheldon was still alive, Defendants allegedly created a fake power of attorney from Decedent to Defendant in order to steal Decedent’s money.
Plaintiffs also alleged that, beginning in August 2019, Defendant improperly obtained funds from a joint bank account maintained by Sheldon and the Decedent, as well as an account in Sheldon’s name. The accounts were maintained by a bank in New York. According to Plaintiffs, Defendant obtained control of the marital bank account and Sheldon’s bank account, while they were both alive, and purportedly stole money from them.
Plaintiffs initially filed a complaint against Defendants in the Southern District of New York on October 16, 2020. Among other things, Plaintiffs alleged causes of action for fraud, financial abuse, theft, conversion, and unjust enrichment. Plaintiffs later withdrew the federal action.
Thereafter, Plaintiffs filed an action in state court, asserting similar allegations and causes of action. Defendants moved to dismiss the complaint, pursuant to CPLR §§ 3211(a)(1)(2)(3) and (7) and CPLR § 327(a).
On July 12, 2022, the motion court granted defendants’ motion on the grounds that New York was an inconvenient forum for the action.
The First Department’s Decision
As noted, the First Department affirmed the motion court’s order, dismissing the action on forum non-conveniens grounds.
The Court noted that “[m]ost of the factors considered by New York courts in deciding whether to retain jurisdiction – the burden on the New York court, the potential hardship on the defendant, the unavailability of an alternative forum in which the plaintiff may bring suit, and whether the transaction out of which the cause of action arose occurred primarily in a foreign jurisdiction — favor[ed] a finding that Israel ha[d] a greater stake in, and [was] the proper forum for, th[e] action.”7 The Court explained that “[m]ost of the relevant actions occurred in Israel while the decedent and defendant Hartig resided there, the relevant medical records and other documents are written in Hebrew and located in Israel, and the decedent’s heirs almost entirely reside in Israel, as do most of the witnesses and the decedent’s guardian.”8 As such, concluded the Court, “New York’s retention of jurisdiction would impose a heavy, undue burden upon the court, requiring translation of the Hebrew documents into English and nuanced application of Israeli tort and inheritance law.9
The Court also noted that because “defendants have consented to Israel’s jurisdiction,” they “would suffer no significant hardship from litigating there.”10
Finally, the Court rejected plaintiffs’ argument that because they and the bank, as well as some witnesses, were located in New York, New York was the most convenient forum.11 “The deposition of the New York witnesses and production of the New York Community Bank records,” said the Court, “can be conducted via the internet.”12
The forum non conveniens doctrine permits a court to dismiss an action when “in the interest of substantial justice the action should be heard in another forum.” CPLR § 327(a). It is based upon “justice, fairness and convenience”,13 in which the party challenging the forum bears the burden of demonstrating that the action would be better adjudicated in a different forum. It is a flexible doctrine that is based upon the facts and circumstances of each case. Only “when it plainly appears that New York is an inconvenient forum and that another is available which will best serve the ends of justice and the convenience of the parties” should a case be dismissed on forum non conveniens grounds.14 As shown in Brandwein, defendants were able to satisfy the burden reflected in the principles discussed above.
- U.S. Department of State, The Doctrine of Forum Non Conveniens in the United States (1997-2001) (here) (quoting Gary B. Born & David Westin, International Civil Litigation in United States Courts 275 (2d ed. 1994)).
- Id. (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-507 (1947)).
- Id. (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981)).
- Grizzle v. Hertz Corp., 305 A.D.2d 311, 312 (1st Dept. 2003) (citations and internal quotation marks omitted); Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 479 (1984), cert. denied, 469 U.S. 1108 (1985).
- Grizzle, 305 A.D.2d at 312; Pahlavi, 62 N.Y.2d at 479; Daly v. Metro. Life Ins. Co., 4 Misc. 3d 887, 894 (Sup. Ct., N.Y. County 2004).
- Pahlavi, 62 N.Y.2d at 479.
- Slip Op. at *1 (citing Pahlavi, 62 N.Y.2d at 479).
- Id. (citing Estate of Kainer v. UBS AG, 175 A.D.3d 403, 405 (1st Dept. 2019), aff’d, 37 N.Y.3d 460 (2021) (applicability of foreign law is an important factor in forum non conveniens analysis weighing in favor of dismissal)).
- Pahlavi, 62 N.Y.2d at 479.
- Silver v. Great Am. Ins. Co., 29 N.Y.2d 356, 361 (1972).
Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP.
This article is for informational purposes and is not intended to be and should not be taken as legal advice.