Emp. Ret. Sys. for City of Providence v. Rohner

205 N.Y.S.3d 19

EMPLOYEES RETIREMENT SYSTEM FOR the CITY OF PROVIDENCE, etc., Plaintiff–Respondent,

v.Urs ROHNER et al., Defendants,Eric Varvel et al., Defendants–Appellants,Credit Suisse Group AG, Nominal Defendant.

Supreme Court, Appellate Division, First Department, New York.

Entered: February 8, 2024

Cahill Gordon & Reindel LLP, New York (Jason M. Hall of counsel), for appellants.

Bernstein Litowitz Berger & Grossmann LLP, New York (Jeroen van Kwawegen of counsel), for respondent.

Manzanet–Daniels, J.P., Kern, Friedman, O’Neill Levy, Michael, JJ.

Order, Supreme Court, New York County (Andrea Masley, J.), entered January 31, 2023, which denied the motion of defendants Eric Varvel, Brian Chin, and Radhka Venkatraman to dismiss the complaint pursuant to CPLR 327 and 3211(a)(7), unanimously affirmed, with costs.

[1, 2] The doctrine of forum non conveniens, codified in CPLR 327, permits a court to stay or dismiss an action where it finds "that in the interest of substantial justice the action should be heard in another forum." CPLR 327 requires that "balancing of many factors," and the decision to retain jurisdiction over a dispute is within the motion court’s discretion (Al Rushaid v. Pictet & Cie, 28 N.Y.3d 316, 332, 45 N.Y.S.3d 276, 68 N.E.3d 1 [2016]; see Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, -479, 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]). Here, defendants have not met their "heavy burden" of establishing that the complaint should have been dismissed on forum non conveniens grounds (see Elmaliach v. Bank of China Ltd., 110 A.D.3d 192, 208, 971 N.Y.S.2d 504 [1st Dept. 2013]).

There is no credible argument that a substantial nexus between this action and New York is lacking (Islamic Republic of Iran, 62 N.Y.2d at 478–479, 478 N.Y.S.2d 597, 467 N.E.2d 245). Virtually every aspect of the subject matter underlying this action occurred in New York, and this Court has found a substantial nexus to exist in New York under less compelling circumstances (see e.g. Elmaliach, 110 A.D.3d at 208–209, 971 N.Y.S.2d 504).

The court also properly found that New York, as a preeminent commercial center, has a significant interest in adjudicating this dispute. While Switzerland also has an interest in adjudicating this action and regulating its banks, this is only "one factor to be weighed," and does not compel dismissal (id. at 209, 971 N.Y.S.2d 504 [internal quotation marks omitted]). Nor is there any parallel litigation pending in Switzerland that might weigh in favor of adjudicating the dispute there.

Defendants also failed to meet their heavy...