The following e-filed documents, listed by NYSCEF document number (Motion 009) 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172 were read on this motion to/for DISMISS ACTION/INCONVENIENT FORUM DECISION + ORDER ON MOTION In motion sequence number 009, defendants Covecastles Development Corporation (CDC) and Covecastles Limited (CL, together with CDC, Covecastles) move pursuant to CPLR 327(a) to dismiss the complaint of plaintiffs JG and CG (collectively the Parents), individually and on behalf of the minor CG (CG, together with the Parents, the Family) on the basis that New York is an inconvenient forum to litigate the Family’s claims. Factual and Procedural Background Briefly, this action arises out of the tragic attempted rape of CG while at a Covecastles resort in Anguilla (the Resort). CG was attacked by an employee of the resort and suffered serious injuries as a result. In February 2016, the Family commenced this action against the defendants asserting a single cause of action for negligence alleging that defendants were negligent and breached their duty of reasonable care by: (1) failing to implement adequate security procedures and policies necessary to protect their guests and residents, and (2) failing to adequately screen its employees for prior criminal conduct. A full recitation of the facts may be found in this Court’s prior decision, dated February 6, 2017 (the 2/6/17 Decision) (NYSCEF Doc. No. 87). The Family are all individuals and residents of New York. CDC is a Delaware corporation and owner of certain parcels of real estate within the Resort’s premises. Myron Goldfinger and June Goldfinger (the Goldfingers) are two of the three shareholders of CDC. CL is an Anguillan corporation, established to operate and manage the Resort. CL was granted a license by the Anguillan government to operate the Resort. CL contends that it has been inoperative since 2017 as a result the hurricanes that occurred that year. CDC and the Goldfingers are three of the five shareholders of CL. Procedural History In the 2/6/17 Decision, this Court dismissed the complaint against all defendants on the basis that the laws of New York “do not provide recompense for [CG's] injuries as against defendants” (id. at p. 13). Plaintiffs subsequently filed a notice of appeal from the 2/16/17 Decision. On May 24, 2018, the Appellate Division, First Department issued a decision modifying the 2/6/17 Decision. The First Department denied the motion to dismiss and reinstated the complaint as to Covecastles (the First Department Decision), finding that Covecastles “failed to conclusively establish either that no part of the attack occurred on [its] property or that [it] had no responsibility for that area” or offer sufficient evidence to defeat the allegation that “the assailant had a criminal history that made the attack foreseeable to defendants” (JG v. Goldfinger, 161 AD3d 640, 640 [1st Dept 2018]). The First Department Decision did not modify this Court’s dismissal of the complaint against the Goldfingers, finding that “the allegation regarding their involvement in the security and hiring at the resort are insufficient” to state a cognizable claim (id.). On July 2, 2018, Covecastles filed the instant motion seeking dismissal of the complaint on the basis that New York is an inconvenient forum. Forum Non Conveniens Covecastles argues that New York is an inconvenient forum because: (1) Anguilla is an adequate forum to litigate these issues, (2) the relevant witnesses and evidence reside in Anguilla, and (3) the Family’s residence is the only connection to New York. In opposition, the Family argues that: (1) JG booked the trip from New York and the payment went to a New York bank account, (2) all decision making related to the management of the Resort occurred in New York, (3) in a prior litigation, Covecastles has represented that its principal place of business is in New York, and (4) CG’s medical providers are located in New York. “The doctrine of forum non conveniens 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” (Boyle v. Starwood Hotels & Resorts Worldwide, Inc., 110 AD3d 938, 939 [2d Dept 2013], affd, 23 NY3d 1012 [2014] [internal quotation marks and citations omitted]). Covecastles bears the burden of establishing that there are relevant private or public interests that would be served by having this litigation commenced in Anguilla (id.). A court must “weigh the parties’ residencies, the location of the witnesses and any hardship caused by the choice of forum, the availability of an alternative forum, the situs of the action, and the burden on the New York court system” in rendering its determination (id. [internal quotation marks and citations omitted]). No one factor is dispositive (id. [internal quotation marks and citations omitted]). “[G]enerally, a plaintiff must be able to show more than its own convenience for selecting the forum when the choice imposes a heavy burden on the court and the defendant” (Islamic Republic of Iran v. Pahlavi, 62 NY2d 474, 482 [1984] [internal citations omitted]). “It is well established law that unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed” (Waterways Ltd. v. Barclays Bank PLC, 174 AD2d 324, 327 [1st Dept 1991] [internal quotation marks and citations omitted]) Here, Covecastles has met its burden by establishing that Anguilla is the appropriate forum for adjudicating these claims. The Family’s single cause of action for negligence arises from Covecastles alleged negligence in failing to implement adequate security procedures and policies necessary to protect their guests and residents of the Resort, and failing to adequately screen the Resort’s employees for prior criminal conduct during the hiring process. It is undisputed that the Family are all New York residents, but “[t]he application of the doctrine of forum non conveniens should turn on considerations of justice, fairness and convenience and not solely on the residence of one of the parties.” (Fertel v. Resorts Intl., 35 NY2d 895, 897 [1974] [internal quotation marks and citations omitted]) “Although such residence is, of course, an important factor to be considered” (id. [internal quotation marks and citations omitted])). Similarly, the fact that the Goldfingers are residents of New York is an insufficient basis for New York to retain the litigation. The Family attempts to characterize the subject of the litigation as only pertaining to the decisions made by the managers of Covecastles, but the Family’s sole cause of action-for negligence goes beyond just the decisions of management and asserts that Covecastles had various lapses in its duty to properly provide security for the Resort and its guests. The execution of any management directives would have occurred in Anguilla by the staff and employees that were present at the Resort daily (Krellenstein aff, exhibit 3, 9). It is unclear how the Anguillan witnesses, who are not subject to New York jurisdiction as Anguillan residents, can be compelled to testify in New York. “Availability of witnesses is consideration in deciding a forum non conveniens motion” (World Point Trading PTE. v. Credito Italiano, 225 AD2d 153, 161 [1st Dept 1996]). In addition, Covecastles submits an affidavit from Eustella Fontaine (Fontaine), an Anguillan solicitor and barrister affirming that: (1) the attacker was arrested and incarcerated by the Anguillan authorities pursuant to the Anguillan criminal justice system (Krellenstein aff, exhibit 3, 5); (2) the former staff and employees were responsible for the day-to-day operations and management of the Resort (id.); (3) the attacker’s employment screening and hiring occurred in Anguilla (id. at 14); and (4) all records, evidence, and witnesses related to the attack reside in Anguilla (id. at 10). Furthermore, CG’s medical providers in New York are not critical witnesses considering that Covecastles maintains that it is not liable for CG’s injuries, since the attack occurred on a beach outside of the Resort’s premises, the attacker was acting outside the scope of his employment, and Covecastles is not obligated to provide security outside of the Resort premises because it is owned and controlled by the Anguillan government, necessitating a determination as to Covecastles’ obligations of securing the beach under Anguillan law (id. at 4). Fontaine further affirms that Anguilla has a “mature system of jurisprudence based on English law and practices by an established bar of attorneys and counselors” and that Anguilla has a substantial interest in adjudicating claims involving its beaches and tourism industry (id. at
