Berkrot v. National Car Rental

— Order of the Supreme Court, New York County (Shirley Fingerhood, J.), entered April 4, 1990, which denied the motion of defendant National Car Rental for summary judgment and conditionally granted the motion of all defendants to dismiss the action on the grounds of forum non conveniens, modified, upon [81] the law, the facts and in the exercise of discretion, to the extent of denying the motion to dismiss on the grounds of forum non conveniens, and otherwise affirmed, without costs. This action arises out of a motor vehicle accident which occurred on March 30, 1985 in Jamaica, West Indies. Plaintiff Allayne Berkrot was a passenger in a rental vehicle being operated by Catherine Kalmanoff. Said driver Kalmanoff died as a result of the accident. Berkrot is seeking damages for her injuries and her husband, plaintiff Mervin Berkrot, is suing for loss of services. Defendant Herbert Kalmanoff is a physician and the husband of the decedent. The vehicle had been leased by Herbert Kalmanoff from Green Light Car Rental ("Green Light”), a West Indies company, and licensee of National Car Rental Systems International ("National-International”). National-International is a licensee of defendant National Car Rental ("NCR”). NCR is a Delaware corporation doing business in the State of New York. The Berkrots and Kalmanoff are long-time friends and New York residents. The driver of the other vehicle involved is a Jamaican resident, as is the owner of that vehicle. These individuals, as well as National-International and Green Light, are not parties to this litigation. Plaintiffs contend that NCR and Kalmanoff were negligent in the ownership, operation and maintenance of the rental vehicle. As to NCR, it is alleged, inter alia, that Green Light was one of NCR’s world-wide rental outlets, which Herbert Kalmanoff believed was owned and operated by NCR, and that its relationship with Green Light was such that it cannot disclaim liability herein. With respect to Kalmanoff, it is alleged, inter alia, that his wife was under his medical care, that he knew or should have known that she was unable to operate a vehicle safely, and that nevertheless he permitted plaintiff Allayne Berkrot to be a passenger in a vehicle operated by his wife. As such, it is alleged there existed a special relationship creating a duty owed by Kalmanoff to the plaintiffs. Discovery in this action has consisted of two bills of particulars and an answer to combined demands. No depositions have been held. NCR sought summary judgment on the grounds that Green Light was the owner of the rental vehicle and that neither National-International nor NCR controlled Green Light. In the alternative, NCR argued for dismissal on grounds of forum non conveniens, asserting that Jamaica was the appropriate forum. [82] The IAS court denied the motion for summary judgment and conditionally granted dismissal on the grounds of forum non conveniens. We find that the IAS court abused its discretion in dismissing on grounds of forum non conveniens and modify its order to that extent only. This litigation has a substantial nexus to New York. The parties and several non-party witnesses are resident in this State. (See, CPLR 327 [a]; Silver v Great Am. Ins. Co., 29 NY2d 356 [1972].) The plaintiff’s physicians, for the most part, are in New York. Consequently, we are not persuaded that defendants have carried their "onerous burden of proof’ that proceeding with this litigation in New York would be inconvenient or that trial in Jamaica would best serve the ends of justice. (Kronengold v Hilton Hotels Corp., 166 AD2d 325, 326 [1990]; Sullivan v McNicholas Transfer Co., 93 AD2d 527 [1983].) We affirm the denial of summary judgment in favor of NCR because factual issues exist with respect to its relationship with Green Light. (See, Fogel v Hertz Intl., 141 AD2d 375 [1988]; Fried v Seippel, 170 AD2d 303 [1991].) Specifically, a NCR logo appears on the rental agreement between Green Light and Kalmanoff. It is alleged that Kalmanoff initiated the arrangements which culminated in the rental by calling a NCR telephone number. The license agreement between Green Light and National-International, inter alia, (1) identifies National-International as a licensee of NCR (preamble), (2) requires Green Light to obtain insurance coverage to protect NCR and National-International (para 2.06), and (3) requires Green Light to indemnify and hold NCR and National-International harmless from any claims arising out of its business (para 2.19). The license agreement also requires Green Light, inter alia, to provide National-International with "vehicle and system reports, and such further information relating to [its] Vehicle Renting Business carried on under this License” (para 2.09), to conduct its business in accord with policies and procedures set forth by National-International (para 2.07), to use current model vehicles (para 2.08), and to grant access to its records at any time to National-International (para 2.10).* Finally, we also find that the complaint together with the bills of particulars and the plaintiffs’ affidavits sufficiently indicate that factual issues exist as to the possible special relationship and duty owed by defendant Kalmanoff to plain [83] tiffs (see, Purdy v Public Adm’r of County of Westchester, 72 NY2d 1 [1988]). Concur — Rosenberger, Wallach, Kupferman and Smith, JJ. Footnotes [*] Significantly, the license agreement between NCR and National-International is not contained in this record.