Substantial Justice is Driving Factor in Decision to Transfer Mesothelioma Case to Colorado Supreme Court of New York, May 24, 2019
NEW YORK – The plaintiff, Carl Lanz, filed suit in New York against the defendants alleging he developed mesothelioma as a result of his occupational exposure to asbestos. Specifically, Carl Lanz alleged he had been exposed to asbestos while working as an electrician apprentice and electrician for the Public Service Company of Colorado from 1969 -2008. Carl Lanz had never been to New York despite having filed his complaint in New York.
General Electric and Union Carbide moved to dismiss the complaint on the basis of forum non-coveniens. The plaintiff opposed and took the position that there was a “sufficient basis for retaining jurisdiction” in New York. The plaintiff also took the position that both the defendants called New York home based on incorporation.
The court that CPLR Rule 327(a) allowed a dismissal when the court finds that in the “interest of substantial justice” the case should be heard elsewhere. The initial burden was on the moving party, according to the court. Factors weighing in favor of transfer included:
- Residency of the parties
- The potential hardship to proposed witnesses
- The location of the evidence
- The burden upon New York courts
Hardship upon non-party witnesses was also a significant factor. The court quickly concluded that:
- The plaintiffs had been living in Colorado for the majority of their lives,
- all exposure took place in Colorado,
- All of the plaintiffs’ employers and unions were in Colorado.
- His medical providers were in Colorado.
The court also concluded that its trial calendar was filled primarily with in extremis cases and that “retention of this case” would cause additional delay. Satisfied that the elements of CPLR Rule 327(a) were met, the court dismissed the case.
Read the case decision here.