| Kuwaiti Eng'g Group v Consortium of Intl. Consultants, LLC |
| 2008 NY Slip Op 03977 [50 AD3d 599] |
| April 29, 2008 |
| Appellate Division, First Department |
| Kuwaiti Engineering Group, Appellant, v Consortium ofInternational Consultants, LLC, Defendant, and Safege Consulting Engineers,Respondent. |
—[*1] Baker & McKenzie LLP, New York (David Zaslowsky of counsel), for respondent.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered March 19, 2007,which granted the motion of defendant Safege Consulting Engineers (Safege) to dismiss thecomplaint on forum non conveniens grounds, unanimously modified, on the law and the facts, tothe extent of conditioning the order of dismissal upon defendants' consent to jurisdiction of thecourts of Kuwait and France, and otherwise affirmed, with costs in favor of defendants, payableby plaintiff.
Dismissal of the complaint on forum non conveniens grounds (CPLR 327 [a]) was aprovident exercise of discretion in this action where plaintiff, a Kuwaiti corporation, seeks toenforce a contract as a third-party beneficiary, and alleges, inter alia, tortious interference with itscontract rights to act as agent for defendants in performing environmental consulting work inKuwait. The motion court balanced the appropriate factors, including that defendant Consortiumof International Consultants, LLC (CIC) is a Delaware limited liability company headquartered inVirginia, and Safege is a French corporation. The consulting work agreements at issue involvedwork to be wholly performed in Kuwait, and were negotiated, only in part, in New York, andwere otherwise completed and executed outside New York. The conduct underlying the allegedinterference with contractual rights occurred outside New York, and as agent to the consultingfirms, plaintiff was obligated to obtain non-American, non-European union workers to assist theengineers in performing their work in Kuwait. Furthermore, the courts of either Kuwait or Franceprovide viable alternative forums. Under these circumstances, we find that Safege met its heavyburden to establish that New York was an inconvenient forum (see e.g. Creditanstalt Inv. Bank AG vChadbourne & Parke LLP, 14 AD3d 414, 415 [2005]), and that a substantial nexusbetween New York and this action was lacking (see Islamic Republic of Iran v Pahlavi,62 NY2d 474 [1984], cert denied 469 US 1108 [1985]; Shin-Etsu Chem. Co., Ltd. v ICICI BankLtd., 9 AD3d 171 [2004]).
Although we agree with the motion court's dismissal of this action, we do not find [*2]plaintiff's appeal to be frivolous within the meaning of 22 NYCRR130-1.1 (c). Accordingly, Safege's request for sanctions is denied (cf. Timoney v Newmark &Co. Real Estate, 299 AD2d 201, 201-202 [2002], lv dismissed 99 NY2d 610 [2003]).Concur—Tom, J.P., Mazzarelli, Andrias and Williams, JJ. [See 2007 NY Slip Op30676(U).]