Choice of Law

• Author: International Law Group
• Pages: 222-223

Page 222

In 2002, K.T. (Plaintiff), a female New York resident, attended a New Year's Eve party on an island offthe coast of Brazil. There she met Damon Dash, a well-known music entrepreneur and hip hop music producer in New York. According to news reports, Dash drives a $400,000 car and owns 1,300 pairs of sneakers.

Plaintiffalleges that Defendant made several sexual advances which she rejected. She left the party around 4.30 a.m. and returned to a guest house where she passed out. Plaintiffbrought action in state court upon her return to New York, contending that Dash raped her while she was unconscious, and seeking money damages. Defendant moved to dismiss based on forum non conveniens, or for a ruling that Brazilian substantive law apply to this action. The court denied the forum non conveniens motion and refused to rule on the choice of law issue. Defendant appealed.

The New York Supreme Court, Appellate Division, affirms with modifications.

First, the Court reviews the issue of forum non conveniens. It notes that both parties, as well as many witnesses, live and work in New York. This case involves a personal interaction between New York residents that occurred in a foreign locale. The Brazilian law enforcement and hospital personnel did not gain any first-hand knowledge of the events but only heard Plaintiff's statements. Their records have been translated and made part of this record.

It is unlikely that they have knowledge beyond their written reports. Considering the Defendant's fi nancial resources, it should not be a problem to transport any relevant witnesses from Brazil to New York. Therefore, Defendant did not carry his burden of proof to warrant dismissal based on forum non conveniens.

The Court then turns to the choice of law issue. With Babcock v. Jackson, 12 N.Y.2d. 473, 477 (1963), New York adopted a fl exible approach in this regard, giving "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. 12 N.Y.2d at 481." "The first step in choice of law analysis is determining whether an actual confl ict exists between the jurisdictions involved (see Matter of Allstate Ins. Co. [Stolarz], 81 NY2d 219, 223 [1993]). Once an actual conflict is established, the court must turn to consideration of which jurisdiction, 'because of its relationship or contact with the occurrence or...