Ætna Ins. Co. v. Creole Petroleum Corp.

Order, entered on April 7, 1966, denying defendant’s motion to dismiss the complaint on the ground of forum non conveniens, unanimously reversed on the law, on the facts and in the exercise of discretion, without costs or disbursements, motion granted and complaint dismissed, on condition that, within 10 days after the entry of the order hereon, defendant stipulates, as offered by it, to consent to the jurisdiction of the courts of Venezuela, to accept service of process in Venezuela and appear in an action to be commenced in those courts for the same relief demanded in the complaint herein, that in any action commenced in Venezuela it will not challenge plaintiff’s capacity to sue in said courts, that it will not plead the Statute of Limitations as a defense in any such action brought in Venezuela but will waive it and that, in the event of a dismissal of any such action instituted in Venezuela upon any grounds other than those mentioned under the exceptions contained in CPLR 205, the plaintiff may reinstitute suit in the courts of this State within the six-month period of limitations contained in that section. In the event of defendant’s failure to comply with the foregoing condition, the order is affirmed, without costs, with leave to defendant to serve its answer within 30 days from the entry of the order hereon. The action in Venezuela is to be instituted within three months after the ■ entry of the order hereon and compliance by the defendant with the condition imposed. It is the general policy of the courts of this State, in the absence of special circumstances, to reject actions between nonresidents founded on tort, where the cause of action arises outside the State (Wedemann v. United States Trust Co., 258 N. Y. 315, 317; Williams v. Seaboard Air Line R. R. Co., 9 A D 2d 268, 270; Ginsburg v. Hearst Pub. co. 5 A D 2d 200, affd. 5 N Y 2d 894). No such circumstances have been established by plaintiff in this case. Settle order on notice. Concur — Botein, P. J., McNally, Steuer, Capozzoli and Bastow, JJ.