Demenus v. Sylvester

— In an action, inter alia, for an accounting, the plaintiffs appeal from an order of the Supreme Court, Nassau County (O’Shaughnessy, J.), dated June 17, 1988, which, inter alia, granted the defendants’ motion to dismiss the action on the ground of forum non conveniens, and denied their cross motion for a preliminary injunction. Ordered that the order is affirmed, without costs or disbursements, on condition that within 20 days of the service upon them of a copy of this decision and order, with notice of entry, the defendants Herbert Sylvester and Colette Speyer stipulate to submit to the jurisdiction of the United States District Court for the District of New Jersey in the action in that court entitled Demenus v Sylvester bearing index No. 87-3428; and it is further, Ordered that in the event the condition is not complied with, then the order is modified by deleting therefrom the provision granting that branch of the defendants’ motion which was to dismiss the action as against the defendants on the ground of forum non conveniens, and substituting therefor a provision denying that branch of the defendants’ motion; as so modified, the order is affirmed, with costs to the plaintiffs. New York courts are not compelled to retain jurisdiction in any case which has no substantial nexus to New York (see, e.g., Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65, 73; Silver v Great Am. Ins. Co., 29 NY2d 356, 361) and the mere fact that one or more of the parties may be residents of this State does not preclude the court from exercising its [669] discretion to dismiss in an appropriate case (CPLR 327 [a]; Moezinia v Moezinia, 124 AD2d 571, 572). Here, both the instant action and the action commenced in the United States District Court for the District of New Jersey by some of the plaintiffs in the instant action shortly after the commencement of the instant action principally concern the rights of the plaintiffs vis-á-vis all of the defendants in certain properties located in New Jersey, which is also the only State which has jurisdiction over all of the parties and the nonparty witnesses. Under the circumstances, therefore, we find that the Supreme Court properly exercised its discretion under both CPLR 3211 (a) (4) and 327 in dismissing this action. We find, however, that in fairness to the plaintiffs, that branch of the defendants’ motion which was to dismiss the action on the ground of forum non conveniens should be granted only upon condition that the individual defendants in this action, if they are not now named defendants in the action pending in the United States District Court for the District of New Jersey, stipulate to submit to the jurisdiction of that court in the action entitled Demenus v Sylvester bearing index No. 87-3428 (see, Meritum Corp. v Lawyers Tit. Ins. Corp., 88 AD2d 828). The court’s denial of the plaintiffs’ cross motion for a preliminary injunction was not error. Bracken, J. P., Rubin, Sullivan and Harwood, JJ., concur.