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Ola FCO tl NECTICUT
DOCKET NO. UWY CV-18-6041232S SUPERIOR GOURT OR COURT
KATHERINEE C. MANTILLA so. on gyaTeReuRe PT 4 4S
V. AT WATERBURYCIAL DISTRICT
F WATERBURY
DREW R. MENCIO, ET AL JANUARY 3, 2 019
MEMORANDUM OF DECISION
MOTION TO DISMISS # 111
INTRODUCTION
The plaintiff brought this action by way ofa writ, summons and complaint dated June 4, 2018.
The defendant has filed a motion to dismiss the complaint dated August 7, 2018 with a supplemental
memorandum on August 9, 2018 arguing that the doctrine of forum non conveniens and the failure to
satisfy the requirement of serious injury pursuant to New York threshold law controls. The plaintifffiled
a memorandum in opposition dated September 26, 2018. The matter was on the short calendar for
argument on October 22, 2018.
FACTUAL BACKROUND
On July 18, 2016, the plaintiff was the driver of a motor vehicle being operated on I-684 in the Town
of Southeast, State of New York. At the same time, the defendant, Drew Mencio (“Mencio”), was
driving a motor vehicle behind the plaintiff. The vehicle driven by Mencio was owned by the co-
defendant Tri Star Service Inc. Mencio while operating the TriStar vehicle on 1-684 struck the rear of the
plaintiff's car in the Town of Southeast, State of New York. The plaintiff contends that the defendant
Mencio was negligent in a number of ways and that the negligence of the defendant Mencio caused a
number of injuries as specified in her complaint. The defendant Drew R. Mencio is a resident of the
State of Connecticut in the city of Waterbury. The co-defendant Tri State Service is doing business
in Woodbury, Connecticut and has a resident agent address of Bethel, Connecticut. The plaintiff is a
resident of the State of New York.
DISCUSSION
“Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of
uy
subject matter jurisdiction.” St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). “Subject
matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy
presented by the action before it. . . [A] court lacks discretion to consider the merits of a case over which
it is without jurisdiction. . . The requirement of subject matter jurisdiction cannot be waived by any
party and can be raised at any stage in the proceedings.” (Internal quotation marks omitted.) Burton v.
Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009).
The defendants contend the court lacks subject matter jurisdiction because of the doctrine of forum
non conveniens and the lack of sufficient basis to satisfy the threshold injury requirement in accordance
with the law of New York.
A. Forum non conveniens
The defendant argues that because the motor vehicle accident occurred in New York with some of
the witnesses and the plaintiff residing in New York the forum should appropriately be New York.’ The
plaintiff contends that the case is appropriately filed in Connecticut because the defendant is a resident.
of Connecticut. Therefore, the question before the court on this argument is whether the forum chosen
by the plaintiff is inconvenient, a hardship to the parties, or has any other basis to dismiss the action
which the plaintiff chose to bring to Connecticut. In examining the issue raised by the defendants, the
court is cognizant of the emphasis and strong presumption in favor of the plaintiff's choice of forum. As
stated in Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839 (1947), “[U]nless the balance is
strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.” In the
instant action the defendant discusses the possible witnesses and the police officer who responded to
the accident as the inconvenience or hardship. The defendants then rely upon the case of Durkin v.
Intevac, 258 Conn. 454 (2001) to support their position that the court should grant the motion. The
difficulties that were raised in Durkin of obtaining evidence form a helicopter crash in Australia along
+The defendant alleges the treating physicians are in New York, however the plaintiff, denies that all treaters are
in New York and states that the orthopedic physician (Connecticut Family Orthopedic) and the pain management
doctor (Dr. David Kloth) are located in Connecticut.
with the inability to access the necessary witnesses through process or otherwise were substantial
factors in determining that Australiawas the proper forum and not Connecticut. The four step process
for examining forum non conveniens claims in Durkin, supra weighed heavily on the public and private
interests consideration to find that the proper forum was Australia and not Connecticut. In viewing
the private and public interests in the instant action there is no comparison to the difficulties that were
specifically identified in Durkin or in Gulf Oil Corporation which would lead this court to dismiss the
action in Connecticut. The private interests factors as noted by the court significantly weigh in favor of
the plaintiff. Here, the action is based upon a motor vehicle accident which occurred within
close proximity to the borders of Connecticut. In this case, the defendant lives in Waterbury and thus
residency of the defendant has established jurisdiction In addition, to the residency, the plaintiff argues
that the orthopedic group that has provided treatment to her is located in Connecticut as well as the
pain management physician. The applicable factors for the access to the evidence and documentation
for proof or defense of the action have not been shown to be inaccessible. Simply surmising that the
access may be more difficult does not satisfy the burden of the defendant to grant the motion.
Obviously both plaintiff and defendant will be available as well as the treating physicians. The distance
for purposes of witnesses may be closer than if the residency was in outlining Connecticut towns where
the court oftentimes enters orders to permit access for depositions or other inquiry. Therefore, there is
no argument nor has the defendant been able to successfully Provide affidavits or other admissible
evidence that there will be difficulty in obtaining the necessary testimony or evidence to assist the
defense.
,
The public interest aspect of the analysis is not significant given the facts and proof required for this
action. However, the court notes that in this matter it will establish a very bad precedent
for the many cases in this jurisdiction which are based upon motor vehicle accidents that physically
occur in New York because of the close proximity of the state line and a driver or passenger who lives in
Connecticut and thus will preclude many cases from being filed. Such a precedent should be excluded
by following the analysis in Gulf Oil relating to the private interests and requirements of hardship or
inability to properly prosecute.
Therefore, the court does not find the defendants have supported their position from a factual or
legal perspective to grant the motion to dismiss because of forum non conveniens.
B. Failure to meet burden of serious injury
In the memorandum submitted by the parties they agree that the controlling law in this action is the
New York law which includes the New York threshold law. The defendants argue that the plaintiff has
failed to satisfy her burden of demonstrating that the damages in this action are a serious injury and
meet the $50,000 threshold. The law in New York which applies states in relevant part: “Serious injury’
means a personal injury which results in death, dismemberment; disfigurement; a fracture; loss ofa
fetus’ permanent loss of use of a body organ, member, function or system; permanent consequential
limitation of use of abody organ or member; significant limitation of use of a body function or system;
ora medically determined injury or impairment of a non-permanent nature which prevents the injured
person from performing substantially all of the material acts which constitute such person’s usual and
customary daily activities for not less than ninety days during the one hundred eighty days immediately
following the occurrence of the injury or impairment.”
The plaintiff argues in opposition to the defendant’s position that the injuries in the instant action do
not satisfy the “serious injury” requirement of New York law, that the motion to dismiss is improper and
it should be raised as a motion for summary judgment or be supported by admissible evidence
supporting the position. The court agrees with the plaintiff's argument. The defendants have done little
more than set forth the claimed injuries with no medical support as to the impact of the injuries. The
defendants surmise that the claims by the plaintiff are not serious and thus without more do not satisfy
the law in New York. The burden is on the defendants. Toure v. Avis Rent a Car Sys., 98 N.Y.2d 345
’
(20012), Alvarez v. Prospect Hosp., 68 N.Y.2d 320, (1986). The defendants have provided no support
other than define serious injury. Based upon the lack of evidence and support for the argument, the
court denies the motion to dismiss on this basis.”
CONCLUSION
Based upon the above, the court denies the motion to dismiss as to the claim of forum non
conveniens and failure to satisfy a serious injury threshold pursuant to New York Law.’
THE COURT
An-
Brazzel-Massaro, J.
JONG Sent +0:
Vertu Law
Lowy Obives of MeMan, Raloerts Turret & hosenloovm
Eat Warr TH
Ta}19
This is not to say that after the discovery process including depositions or the disclosure of medical record,
reports or expert disclosures that the defendants cannot raise this issue on a summary judgment motion.
3 The court does not address the argument concerning the timeliness of the motion to dismiss since it has
addressed the particular substantive arguments.
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Ola FCO tl NECTICUT DOCKET NO. UWY CV-18-6041232S SUPERIOR GOURT OR COURT KATHERINEE C. MANTILLA so. on gyaTeReuRe PT 4 4S V. AT WATERBURYCIAL DISTRICT F WATERBURY DREW R. MENCIO, ET AL JANUARY 3, 2 019 MEMORANDUM OF DECISION MOTION TO DISMISS # 111 INTRODUCTION The plaintiff brought this action by way ofa writ, summons and complaint dated June 4, 2018. The defendant has filed a motion to dismiss the complaint dated August 7, 2018 with a supplemental memorandum on August 9, 2018 arguing that the doctrine of forum non conveniens and the failure to satisfy the requirement of serious injury pursuant to New York threshold law controls. The plaintifffiled a memorandum in opposition dated September 26, 2018. The matter was on the short calendar for argument on October 22, 2018. FACTUAL BACKROUND On July 18, 2016, the plaintiff was the driver of a motor vehicle being operated on I-684 in the Town of Southeast, State of New York. At the same time, the defendant, Drew Mencio (“Mencio”), was driving a motor vehicle behind the plaintiff. The vehicle driven by Mencio was owned by the co- defendant Tri Star Service Inc. Mencio while operating the TriStar vehicle on 1-684 struck the rear of the plaintiff's car in the Town of Southeast, State of New York. The plaintiff contends that the defendant Mencio was negligent in a number of ways and that the negligence of the defendant Mencio caused a number of injuries as specified in her complaint. The defendant Drew R. Mencio is a resident of the State of Connecticut in the city of Waterbury. The co-defendant Tri State Service is doing business in Woodbury, Connecticut and has a resident agent address of Bethel, Connecticut. The plaintiff is a resident of the State of New York. DISCUSSION “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of uy subject matter jurisdiction.” St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003). “Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it. . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction. . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.” (Internal quotation marks omitted.) Burton v. Commissioner of Environmental Protection, 291 Conn. 789, 802, 970 A.2d 640 (2009). The defendants contend the court lacks subject matter jurisdiction because of the doctrine of forum non conveniens and the lack of sufficient basis to satisfy the threshold injury requirement in accordance with the law of New York. A. Forum non conveniens The defendant argues that because the motor vehicle accident occurred in New York with some of the witnesses and the plaintiff residing in New York the forum should appropriately be New York.’ The plaintiff contends that the case is appropriately filed in Connecticut because the defendant is a resident. of Connecticut. Therefore, the question before the court on this argument is whether the forum chosen by the plaintiff is inconvenient, a hardship to the parties, or has any other basis to dismiss the action which the plaintiff chose to bring to Connecticut. In examining the issue raised by the defendants, the court is cognizant of the emphasis and strong presumption in favor of the plaintiff's choice of forum. As stated in Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839 (1947), “[U]nless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.” In the instant action the defendant discusses the possible witnesses and the police officer who responded to the accident as the inconvenience or hardship. The defendants then rely upon the case of Durkin v. Intevac, 258 Conn. 454 (2001) to support their position that the court should grant the motion. The difficulties that were raised in Durkin of obtaining evidence form a helicopter crash in Australia along +The defendant alleges the treating physicians are in New York, however the plaintiff, denies that all treaters are in New York and states that the orthopedic physician (Connecticut Family Orthopedic) and the pain management doctor (Dr. David Kloth) are located in Connecticut. with the inability to access the necessary witnesses through process or otherwise were substantial factors in determining that Australiawas the proper forum and not Connecticut. The four step process for examining forum non conveniens claims in Durkin, supra weighed heavily on the public and private interests consideration to find that the proper forum was Australia and not Connecticut. In viewing the private and public interests in the instant action there is no comparison to the difficulties that were specifically identified in Durkin or in Gulf Oil Corporation which would lead this court to dismiss the action in Connecticut. The private interests factors as noted by the court significantly weigh in favor of the plaintiff. Here, the action is based upon a motor vehicle accident which occurred within close proximity to the borders of Connecticut. In this case, the defendant lives in Waterbury and thus residency of the defendant has established jurisdiction In addition, to the residency, the plaintiff argues that the orthopedic group that has provided treatment to her is located in Connecticut as well as the pain management physician. The applicable factors for the access to the evidence and documentation for proof or defense of the action have not been shown to be inaccessible. Simply surmising that the access may be more difficult does not satisfy the burden of the defendant to grant the motion. Obviously both plaintiff and defendant will be available as well as the treating physicians. The distance for purposes of witnesses may be closer than if the residency was in outlining Connecticut towns where the court oftentimes enters orders to permit access for depositions or other inquiry. Therefore, there is no argument nor has the defendant been able to successfully Provide affidavits or other admissible evidence that there will be difficulty in obtaining the necessary testimony or evidence to assist the defense. , The public interest aspect of the analysis is not significant given the facts and proof required for this action. However, the court notes that in this matter it will establish a very bad precedent for the many cases in this jurisdiction which are based upon motor vehicle accidents that physically occur in New York because of the close proximity of the state line and a driver or passenger who lives in Connecticut and thus will preclude many cases from being filed. Such a precedent should be excluded by following the analysis in Gulf Oil relating to the private interests and requirements of hardship or inability to properly prosecute. Therefore, the court does not find the defendants have supported their position from a factual or legal perspective to grant the motion to dismiss because of forum non conveniens. B. Failure to meet burden of serious injury In the memorandum submitted by the parties they agree that the controlling law in this action is the New York law which includes the New York threshold law. The defendants argue that the plaintiff has failed to satisfy her burden of demonstrating that the damages in this action are a serious injury and meet the $50,000 threshold. The law in New York which applies states in relevant part: “Serious injury’ means a personal injury which results in death, dismemberment; disfigurement; a fracture; loss ofa fetus’ permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of abody organ or member; significant limitation of use of a body function or system; ora medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.” The plaintiff argues in opposition to the defendant’s position that the injuries in the instant action do not satisfy the “serious injury” requirement of New York law, that the motion to dismiss is improper and it should be raised as a motion for summary judgment or be supported by admissible evidence supporting the position. The court agrees with the plaintiff's argument. The defendants have done little more than set forth the claimed injuries with no medical support as to the impact of the injuries. The defendants surmise that the claims by the plaintiff are not serious and thus without more do not satisfy the law in New York. The burden is on the defendants. Toure v. Avis Rent a Car Sys., 98 N.Y.2d 345 ’ (20012), Alvarez v. Prospect Hosp., 68 N.Y.2d 320, (1986). The defendants have provided no support other than define serious injury. Based upon the lack of evidence and support for the argument, the court denies the motion to dismiss on this basis.” CONCLUSION Based upon the above, the court denies the motion to dismiss as to the claim of forum non conveniens and failure to satisfy a serious injury threshold pursuant to New York Law.’ THE COURT An- Brazzel-Massaro, J. JONG Sent +0: Vertu Law Lowy Obives of MeMan, Raloerts Turret & hosenloovm Eat Warr TH Ta}19 This is not to say that after the discovery process including depositions or the disclosure of medical record, reports or expert disclosures that the defendants cannot raise this issue on a summary judgment motion. 3 The court does not address the argument concerning the timeliness of the motion to dismiss since it has addressed the particular substantive arguments.