In this personal injury action, the infant plaintiff, a resident of New Jersey, and a student in the Fair Lawn Public Schools, was hurt while on an outing at defendant Happiness is Camping, Inc.s (HIC) campground in New Jersey. The Fair Lawn Board of Education arranged the school outing.

Defendant HIC commenced a third-party action against Fair Lawn Board of Education, seeking indemnification and/or contribution. The plaintiff is a New Jersey domiciliary who was injured in the state of New Jersey, on property owned by HIC, a charitable corporation domiciled in New York.

HIC moved to dismiss based upon forum non conveniens. Granting the motion, the court stated, CPLR 327 (a) states: When the court finds that, in the interest of substantial justice, the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action, in whole or in part, on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action.

Witnesses, Site of Accident All in N.J.

Here, defendant alleges that the site of the accident as well as the residence of all of the potential witnesses, including other students, teachers, and emergency responders, is in New Jersey. It is further alleged that, as a result of the accident, plaintiff initially received treatment for his injuries from providers located in New Jersey, and it is undisputed that plaintiff himself, as well as Fair Lawn, are domiciled in New Jersey.

Plaintiff has not identified a single witness, including himself, who does not reside in New Jersey, or would be inconvenienced by having this case heard in New Jersey (see Bewers v. American Home Products Corp., 99 AD2d 949). Thus, forum non conveniens relief should be granted when it plainly appears that New York is an inconvenient forum and that another is available which will best serve the ends of justice and the convenience of the parties (Economos v. Zizikas, 18 AD3d 392, at 393).

Applying Foreign Law

Additionally, the need to apply foreign law is an appropriate concern on a forum non conveniens motion. Here defendants, Fair Lawn and HIC, argue that the application of the doctrine of charitable immunity pursuant to N.J.S.A. 2A:53A-7-11, provides an alternate basis for dismissal of this action. Whether or not defendants are correct that New Jersey law requires the dismissal of this action, if, under a choice of law analysis, this court would have to apply New Jersey law, that would provide a further basis for dismissal pursuant to CPLR 327 (a).

In Babcock v. Jackson, 12 NY2d 473, the Court of Appeals abandoned the traditional law of the place of the tort (ex loci delicti) approach to choice of law problems arising in tort, and adopted a more flexible approach to give controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation.

Thus, Babcock has generated an interest analysis rule that gives effect to the law of the jurisdiction having the greatest interest in resolving the particular issue involved. An evaluation of the facts or contacts which relate to the purpose of the particular law in conflict determines the greater interest (Schultz v. Boy Scouts of America, Inc., 65 NY2d 189, quoting Miller v. Miller, 22 NY2d 12).

Under this formulation, the significant contacts are, almost exclusively, the parties domiciles and the locus of the tort.

Conduct Regulating vs. Loss Allocating

In weighing the various interests, New York courts distinguish between conduct regulating and loss allocating rules. An immediate distinction was drawn between laws that regulate primary conduct, such as standards of care, and those that allocate losses after the tort occurs (such as vicarious liability rules). (Cooney v. Osgood Machinery, Inc., supra, 81 NY2d 66).

If conduct regulating rules conflict, New York courts usually apply the law of the place where the tort occurred because that jurisdiction has the greatest interest in regulating behavior that takes place within its borders. If loss allocating rules conflict, the three so-called Neumeier rules adopted in Neumeier v. Kuehner, 31 NY2d 121, govern the choice of law analysis.

The parties agree that the third rule articulated in Neumeier is controlling. In Neumeier, a domiciliary of Ontario, Canada was killed when the automobile in which he was riding, owned and driven by a New York resident, collided with a train in Ontario. Ontario had a guest statute, providing for defendants liability only in cases involving gross negligence. The primary question posed therein was whether in that action, brought by the Ontario passengers estate, Ontario law should be applied and the New York defendant be permitted to rely on its guest statute as a defense.

Writing for the court, Chief Judge Fuld, quoting from his prior concurrence in Tooker v. Lopez, 24 NY2d 569, stated, The law to be applied is that of the jurisdiction where the accident happened unless it appears that displacing [the] normally applicable rule will advance the relevant substantive law purposes of the jurisdictions involved.

Certainly, ignoring Ontarios policy requiring proof of gross negligence in a case which involves an Ontario-domiciled guest at the expense of a New Yorker does not further the substantive law purposes of New York. In point of fact, application of New York law would result in the exposure of this states domiciliaries to a greater liability than that imposed upon resident users of Ontarios highways.

Conversely, the failure to apply Ontarios law would impair " to cull from the rule set out above " the smooth working of the multi-state system [and] produce great uncertainty for litigants by sanctioning forum shopping and thereby allowing a party to select a forum which could give him a larger recovery than the court of his own domicile. In short, the plaintiff has failed to show that this states connection with the controversy was sufficient to justify displacing the rule of lex loci delictus.

Similar Circumstances

The instant case is indistinguishable from Neumeier. The state of New York has no interest in exposing its resident charitable corporations to lawsuits brought by New Jersey residents stemming from accidents occurring in New Jersey. The state of New Jersey clearly has an interest in encouraging out-of-state charities to provide services to its residents in New Jersey, granting them the same immunity provided to its own charities. There is simply no basis to sanction the forum shopping engaged in by the plaintiff, providing him with a recovery he could not obtain in a court of his own domicile.

As the court in Schultz, noted The state of New Jersey is intimately interested in seeing that the parties associational interests are respected and its own loss-distributing rules are enforced so that the underlying policy, which is undoubtedly to encourage the growth of charitable work within its borders, is effectuated.

Therefore, New Jersey law governing charitable immunity must be applied to this case. The court expresses no opinion as to whether application of that law requires dismissal as to either or both defendants. That decision is best left to the New Jersey courts.

Based upon the fact that the accident occurred in New Jersey, all relevant witnesses and documents concerning the accident are located in New Jersey, as well as the need to apply New Jersey law, this action is dismissed pursuant to CPLR 327. As such, the court does not reach defendant Fair Lawns argument that, as a non-resident, it is not subject to long-arm jurisdiction in New York pursuant to CPLR 302.

Gillenson v. Happiness Is Camping, Inc., 2006 NY Slip Op 26449 (Supreme Court, Bronx County) (Walker, j) (Index no. 15375/2004)