The following papers on this motion by defendants Qupqing Guan (Guan), Xidong Fang (Fang), and Jianyun Guan to dismiss plaintiff’s complaint pursuant to CPLR 3211(a)(1) based on a contractual forum selection clause listing a forum outside New York and on the ground of forum non conveniens; or in the alternative, to dismiss the third cause of action for fraudulent conveyance as moot and the second cause of action for unjust enrichment as duplicative of plaintiff’s breach of contract cause of action; and to cancel the notice of pendency filed against real property owned by defendants pursuant to CPLR 6501 or, in the alternative, pursuant to CPLR 6514(a) for failure to timely effect service.Papers NumberedNotice of Motion — Affidavits — Exhibits EF 13-26Answering Affidavits — Exhibits EF 43-52Reply Affidavits EF 53-54 Upon the foregoing papers it is ordered that this motion is determined as follows:In this action sounding in breach of contract and unjust enrichment, plaintiff alleges that Guan entered a loan agreement (the Loan), dated August 9, 2017, executed in Chinese and translated into English for the purpose of this lawsuit, in favor of plaintiff, a domicile of the People’s Republic of China. After executing the Loan, plaintiff transferred 20 million Chinese RMB to Guan, which the latter was obligated to repay by February 2018 under the terms of the Loan. The Loan was extended by a Loan Extension Agreement dated February 12, 2018, which provided that Guan would repay the Loan by May 8, 2018, which to date is unpaid. Plaintiff’s complaint alleges, among other things, that Guan and Fang transferred certain real property located at 58-06 203rd Street in Queens, New York to their daughter, Jianyun Guan, without consideration or payment, in contemplation of the impending incurrence of debts and with the intention of defrauding future creditors.In moving for summary judgment, movants argue that the forum clause in the Loan Contract should be enforced, as it is not “unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching” or because a “trial in the selected forum would be so gravely difficult that the challenging party would…be deprived of its day in court.” Further, movants contend that the matter should be adjudicated elsewhere in a more convenient forum, namely the People’s Republic of China, as the underlying events for this matter transpired in China, and because all witnesses and documentation are located there as well. Therefore, they contend, this New York action should be dismissed accordingly.Alternatively, movants argue that the third cause of action for fraudulent conveyance should be dismissed as moot, given the reconveyance of the aforementioned real property from their daughter, Jianyun Guan, back to Guan and Fang. They additionally assert that the second cause of action for unjust enrichment should be dismissed as duplicative of the breach of contract claim. Finally, they argue that the notice of pendency against the property should be cancelled upon dismissal of the action under CPLR 6501 or upon dismissal of the fraudulent conveyance claim, as the remaining breach of contract cause of action would not affect title to, possession of, or use or enjoyment of the property, or because plaintiff failed to serve the summons within the thirty-day deadline under CPLR 6512.The court turns to the branch of defendants’ motion seeking to dismiss the action on grounds of forum non conveniens, a doctrine which permits a court to stay or dismiss an action when, although it may have jurisdiction over a claim, the court determines that “in the interest of substantial justice the action should be heard in another forum” (CPLR 327[a]; see Koskar v. Ford Motor Co. , 84 AD3d 1317, 1317 — 1318 [2011]). A defendant bears the burden on a motion to dismiss on the ground of forum non conveniens to “demonstrate relevant private or public interest factors which militate against accepting the litigation” (id ., citing Islamic Republic of Iran v. Pahlavi , 62 NY2d 474, 479 [1990]). On such a motion, the court must weigh (1) the residence of the parties; (2) the location of the witnesses and any potential hardship caused to them; (3) the availability of an alternative forum; (4) the situs of the actionable events; and (5) the burden on the New York court system (see Chang Jin Park v. Cho , 153 AD3d 1311, 1312 [2017]; Boyle v. Starwood Hotels & Resorts Worldwide, Inc. , 110 AD3d 938, 939 [2013]). No one factor is dispositive, and the trial court’s determination should not be disturbed unless the court improvidently exercised its discretion or failed to consider the relevant factors (see Koskar , 84 AD3d at 1318; Tiger Sourcing (HK) Ltd. v. GMAC Commercial Fin. Corporation-Can. , 66 AD3d 1002, 1003 [2009]). Moreover, public policy dictates that, even where no prohibition exists against maintaining a particular action in New York, our courts should not be obligated to accept jurisdiction of a cause of action having no “substantial nexus with New York” (Wild v. University of Pa. , 115 AD3d 944, 946 [2014]; Smolik v. Turner Constr. Co. , 48 AD3d 452, 455 [2008]).Here, the plaintiff is a citizen of China and resident of Zhuhai City in Guangdong Province. Defendants are Chinese citizens residing in the United States in Queens, New York. Although defendants would not be burdened by maintaining this action in New York, as they assert, all evidence and potential witnesses for discovery are located in China, including owners of construction projects for which the loan proceeds were used by Guan’s company. Additionally, the fact that the events giving rise to the cause of action in this matter occurred in another nation “obviously is an important factor weighing in favor of dismissal” (Practice Commentaries, CPLR 327:2[c]). Indeed, the Loan, guarantee contract, and extension agreement were all negotiated and executed in China, the Loan was processed by a Chinese bank located in China, and the Loan proceeds were used by Guan’s construction company for constructing and completing projects in China. The court also notes that the Loan itself requires the application of Chinese law, and lists China as the forum negotiated and bargained for by the parties to the agreement (which plaintiff contests, but the court declines to resolve this issue on the merits given the determination rendered herein under principles of forum non conveniens).To wit, the only nexus that this action has to New York is, as plaintiff avers, is that Guan was “likely in New York when the contract was breached” and was unjustly enriched, “potentially transferring the funds to [] New York.” Moreover, the availability of an alternative forum is “a most important factor to be considered,” but it is not a prerequisite to applying the doctrine of forum non conveniens (Islamic Republic of Iran , 62 NY2d at 481). Plaintiff maintains that defendants have fled the proposed alternative forum of the People’s Republic of China, cannot be served, and that plaintiff will not be able to seek relief under its law. However, the burden of demonstrating that no alternative forum exists nevertheless belongs to plaintiff (id .), who has insufficiently proffered only vague statements that Guan will be discharged of personal liability under Chinese law, and that a foreign judgment cannot be enforced in New York in any event (cf. Boyle , 110 AD3d at 943-946 [affidavits and other evidence submitted by plaintiff to show the unavailability of alternative forums]).Finally, although New York courts may entertain and determine matters by applying the law of foreign jurisdictions, the necessity of interpreting foreign law is another factor that militates against maintaining the instant matter in this court (see Islamic Republic of Iran , 62 NY2d at 480 ["likely applicability of Iranian law" supports dismissal on forum non conveniens grounds]).Given the totality of circumstances presented herein, the court finds that defendants have met their burden of demonstrating that New York is an inconvenient forum for the adjudication of this matter, and that the interest of substantial justice would be best served by dismissing this action upon the condition that defendants consent to jurisdiction before the appropriate forum, namely, within the People’s Republic of China, by accepting service of process of a new action brought on the same causes of action as those asserted herein (CPLR 327[a]; Chang Jin Park v. Cho , 153 AD3d 1311; see also Wild , 115 AD3d at 945).Accordingly, defendants’ motion to dismiss on the ground of forum non conveniens is granted on the following conditions:(1) Within ten (10) days of the date of entry of this order, defendants shall serve upon plaintiff and the appropriate Clerk of this Court, Queens County, Civil Term, a duly executed stipulation consenting to the jurisdiction of the People’s Republic of China as the forum designated by plaintiff, together with a copy of this order with notice of entry. Upon receipt, the Clerk of the Court shall cancel the notice of pendency filed May 14, 2018. Should defendants fail to serve a stipulation agreeing to the conditions and deadlines set forth herein, defendants’ motion to dismiss is deemed denied, and this court shall retain jurisdiction over the instant matter.(2) Within twenty (20) days of service of a copy of this order with notice of entry and the aforementioned stipulation, plaintiff shall designate the appropriate court or forum in the People’s Republic of China, and notify defendants of such designation.(3) Within sixty (60) days of service of the aforementioned stipulation, plaintiff shall prepare and serve the necessary pleadings to commence a new action in the designated court or forum in the People’s Republic of China.The court need not address the merits of the remaining grounds for dismissal advanced by defendants, as they are rendered academic by this order’s resolution based on principles of forum non conveniens (see Carr v. Integon Gen. Ins. Corp. , 185 AD2d 831, 832 [1992]).Accordingly, defendants’ motion to dismiss is granted conditionally, on grounds on forum non conveniens, only, to the extent discussed herein; all other requests for relief are denied.
