Pan v. Colgan Air, Inc. et al
Filing
306
DECISION AND ORDER GRANTING Plaintiff's 288 Motion for a declaration that New York law applies to the issue of compensatory damages; DENYING Defendants' Cross-Motion for the application of Chinese law to the issue of damages. Signed by William M. Skretny, Chief Judge U.S.D.C. on 11/19/2013. Associated Cases: 1:09-md-02085-WMS, 1:09-cv-00961-WMS (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
IN RE: AIR CRASH NEAR CLARENCE CENTER,
NEW YORK, ON FEBRUARY 12, 2009.
DECISION AND ORDER
09-md-2085
This document relates to:
09-CV-961S
I. INTRODUCTION
On February 12, 2009, while on final approach to the Buffalo Niagara International
Airport, Continental Connection Flight 3407 crashed into a house in Clarence Center, N.Y.,
killing all 45 passengers, the four-person crew, and one person in the house. By order
entered October 6, 2009, the United States Judicial Panel on Multidistrict Litigation
transferred all then-pending actions concerning the crash of Flight 3407 to this Court for
coordinated or consolidated pretrial proceedings, pursuant to 28 U.S.C. § 1407. In Re Air
Crash Near Clarence Ctr., N.Y., on Feb. 12, 2009, 655 F. Supp. 2d 1355, 1356 (J.P.M.L.
2009). Subsequently-filed actions have also been transferred here.
Presently before this Court is Plaintiff Xiaojun Pan’s motion for the application of
New York law to the issue of compensatory damages. (Docket No. 288.1) Defendants
Colgan Air, Inc., Pinnacle Airlines Corp., and Continental Airlines, Inc. have also crossmoved for the application of Chinese law to this issue. (Docket No. 295.) This Court has
reviewed and considered the parties’ motion papers and finds oral argument to be
unnecessary.
For the reasons discussed below, Plaintiff’s motion is granted and
Defendants’ cross-motion is denied.
1
All docket references are to the civil docket in the instant case, 09-CV-961S, unless otherwise
noted.
1
II. DISCUSSION
Plaintiff contends that, pursuant to the relevant choice-of-law rules, New York law
applies to the issue of compensatory damages and this state has a strong interest in
seeing its law applied in the instant case. Defendants assert that Plaintiff and decedent,
his wife, were legally domiciled in China at the time of the accident, therefore Chinese law
should be applied to this damages issue.
Where, as here, a federal court is exercising diversity jurisdiction in a multidistrict
litigation, resolution of a conflict of laws issue applies the choice of law rules of the state
in which the relevant action was commenced. In Re Air Crash Near Clarence Ctr., N.Y., on
Feb. 12, 2009, 798 F. Supp. 2d 481, 486 (W.D.N.Y. 2011); see In re Air Crash Disaster
Near Chicago, Ill. on May 25, 1979, 644 F.2d 594, 610 (7th Cir. 1981). This action was
commenced in the Southern District of New York, therefore the forum state is New York.
Thus, this Court’s task is to determine how New York courts would resolve this issue, even
if it were to find a different resolution better or wiser. In Re Air Crash Near Clarence Ctr.,
N.Y., on Feb. 12, 2009, 798 F. Supp. 2d at 492 (citing In re Air Crash at Belle Harbor, N.Y.
on Nov. 12, 2001, No. MDL 1448(RWS), 2006 WL 1288298, *29 (S.D.N.Y. May 9, 2006)).
The New York Court of Appeals has held that “[t]he first step in any case presenting
a potential choice of law issue is to determine whether there is an actual conflict between
the laws of the jurisdictions involved.” In re Allstate Ins. Co., (Stolarz-N.J. Mfrs. Ins. Co.),
81 N.Y.2d 219, 223, 613 N.E.2d 936, 937 (1993); see GlobalNet Financial.Com, Inc. v.
Frank Crystal & Co., Inc., 449 F.3d 377, 382 (2d Cir. 2006). The law of New Jersey, where
Plaintiff asserts he and decedent were domiciled at the time of the accident, is identical to
that of New York with respect to pecuniary damages in a wrongful death action. Compare
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N.J.S.A. § 2A:31-5, and Thalman v. Owens-Corning Fiberglas Corp., 290 N.J. Super. Ct.
A.D. 676, 683, 676 A.2d 611, 614 (N.J.Super.A.D. 1996), with EPTL § 5-4.3(a), and
Milczarski v. Walaszek, 108 A.D.3d 1190, 969 N.Y.S.2d 685 (N.Y.A.D. 4th Dep’t 2013).
As such, no conflict-of-laws analysis is required if Plaintiff and decedent were in fact legally
domiciled in New Jersey at the time of the accident. See Tronlone v. Lac d'Amiante Du
Quebec, 297 A.D.2d 528, 528, 747 N.Y.S.2d 79, 80 (N.Y.A.D. 1st Dep’t 2002), aff’d, 99
N.Y.2d 647 (2003).
If they were domiciliaries of China, however, the parties do not dispute that an actual
conflict exists between the laws of New York and China for compensatory damages in a
wrongful death action. “[T]he essence of the cause of action for wrongful death in [New
York] State is that the plaintiff’s reasonable expectancy of future assistance or support by
the decedent was frustrated by the decedent’s death.” Gonzalez v. N.Y.C. Hous. Auth., 77
N.Y.2d 663, 668, 572 N.E.2d 598, 601 (1991). The amount of pecuniary damages
recoverable is determined by, among other things, the decedent’s financial status,
including his or her past and potential future income. See Johnson v. Manhattan & Bronx
Surface Tr. Operating Auth., 71 N.Y.2d 198, 204, 519 N.E.2d 326, 328 (1988); see also
Gonzalez, 77 N.Y.2d at 668 (damages may be properly calculated, in part, from a
decedent’s present and future earning potential); Franchell v. Sims, 73 A.D.2d 1, 5-6, 424
N.Y.S.2d 959, 962 (N.Y.A.D. 4th Dep’t 1980) (myriad of factors to be considered in
damages calculation includes decedent’s income and his or her relationship with those
claiming pecuniary loss).
In contrast, the parties’ respective experts agree that under Chinese law, the
equivalent compensatory damages for a wrongful death claim is a “death compensation”
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award. (Decl. of Jacques deLisle ¶ 31, Docket No. 288-2; Decl. of Cui Jianyuan ¶¶ 19-20,
Docket No. 295-9.) This award is calculated based not on a beneficiary’s individual loss,
but by the average per capita disposable income of urban residents or net income of rural
residents in either the forum locality or plaintiff’s “domicile or usual place of residence,”
whichever is higher. (deLisle Decl. ¶¶ 31-33; Cui Decl. ¶¶ 20-35.) The annual average is
generally multiplied by a 20 year time period when the decedent was younger than 60 at
the time of death. (deLisle Decl. ¶ 31; Cui Decl. ¶ 22.) Thus, although both jurisdictions
provide compensation for a wrongful death, there is a material difference in the amount of
recovery permissible that would effect the outcome of a trial. See Curley v. AMR Corp.,
153 F.3d 5, 12 (2d Cir. 1998); Simon v. Philips Morris Inc., 124 F. Supp. 2d 46, 71
(E.D.N.Y. 2000); cf. Anderson v. SAM Airlines, 939 F. Supp. 167, 173 (E.D.N.Y. 1996) (no
conflict in absence of evidence that second jurisdiction would allow a lesser amount of
recovery).
To resolve a conflict of laws in a tort action, New York courts apply an ‘interests
analysis’ to determine which jurisdiction has the greatest interest in the litigation. GlobalNet
Financial.Com, Inc., 449 F.3d at 384; Cooney v. Osgood Mach., 81 N.Y.2d 66, 72, 612
N.E.2d 277 (1993). In making this determination, courts distinguish “between laws that
regulate primary conduct (such as standards of care) and those that allocate losses after
the tort occurs (such as vicarious liability rules).” Cooney, 81 N.Y.2d at 72; GlobalNet
Financial.Com, Inc., 449 F.3d at 384. Significant to either determination is the locus of the
tort and the domiciles of the parties; however, where “the conflict involves allocation of
losses, the site of the tort is less important, and the parties’ domiciles are more important.”
GlobalNet Financial.Com, Inc., 449 F.3d at 384-85; Cooney, 81 N.Y.2d at 72 (citing Schultz
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v. Boy Scouts, 65 N.Y.2d 180, 197-99, 480 N.E.2d 679 (1985)).
The New York Court of Appeals refined the interest analysis in loss allocation cases
in Neumeier v. Kuehner “in order to assure a greater degree of predictability and
uniformity.” Edwards v. Erie Coach Lines Co., 17 N.Y.3d 306, 320, 952 N.E.2d 1033 (2011)
(citing Neumeier, 31 N.Y.2d 121, 127, 286 N.E.2d 454, 457 (1972)). There, the Court of
Appeals approved a three-rule framework for resolving conflicts involving guest statutes
governing automobile accidents, “which by definition allocate losses after the tort occurs
rather than regulate primary conduct.” Edwards, 17 N.Y.3d at 321 (citing Neumeier, 31
N.Y.2d at 128)). “Under the first Neumeier rule, when the driver and passenger are
domiciled in the same state, and the vehicle is registered there, the law of their shared
jurisdiction controls.” Edwards, 17 N.Y.3d at 321 (citing Neumeier, 31 N.Y.2d at 128). “The
second Neumeier principle operates to protect a defendant from exposure to liability under
the law of the plaintiff's domicile where the conduct occurred in the defendant’s state of
domicile, and conversely, to prevent an out-of-state defendant from avoiding liability
imposed under the laws of the plaintiff's state of domicile where the injury occurred in that
state.” Shaw v. Coach, 82 A.D.3d 98, 101-102, 918 N.Y.S.2d 120, 124 (N.Y.A.D. 2d Dep’t
2011); see Edwards, 17 N.Y.3d at 321; Neumeier, 31 N.Y.2d at 128.
The third Neumeier rule applies in all other situations where the parties are
domiciled in separate jurisdictions:
[W]hen the passenger and the driver are domiciled in different states, the
rule is necessarily less categorical. Normally, the applicable rule of decision
will be that of the state where the accident occurred but not if it can be shown
that displacing that normally applicable rule will advance the relevant
substantive law purposes without impairing the smooth working of the multistate system or producing great uncertainty for litigants.
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Neumeier, 31 N.Y.2d at 128 (citation omitted). New York courts “have routinely applied the
Neumeier framework to conflicts in loss-allocation situations not involving guest statutes.”
Edwards, 17 N.Y.3d at 322 (citing Schultz, 65 N.Y.2d 189 (considering doctrine of
charitable immunity conflict)); Burnett v. Columbus McKinnon Corp., 69 A.D.3d 58, 60-61,
887 N.Y.S.2d 405, 408-9 (N.Y.A.D. 4th Dep’t 2009) (conflicting comparative negligence
approaches); Zatuchny v. Doe, 34 A.D.3d 398, 825 N.Y.S.2d 458, 459 (N.Y.A.D. 1st Dept.
2006) (vicarious liability), appeal withdrawn, 9 N.Y.3d 959 (2007).
The parties do not dispute that the compensatory damages laws at issue involve
loss allocation or that the present case falls within the split-domicile scenario of the third
Neumeier rule. (Pl’s Mem of Law at 5, Docket No. 288-5; Defs’ Mem of Law at 18, Docket
No. 296 (filed under seal).) Further, this Court has already ruled that New York constitutes
the locus of the tort in this case: “‘When the defendant’s misconduct and the plaintiff’s
injury occur in different jurisdictions, the place of the tort is the jurisdiction where ‘the last
event necessary’ to make the defendant liable occurred.’ The ‘last event necessary in this
case – the crash of Flight 3407 – obviously occurred in New York.” In re Air Crash near
Clarence Center, New York, on February 12, 2009, 798 F. Supp. 2d at 491 (internal
citations omitted) (quoting In re Sept. 11th Litig., 494 F. Supp. 2d 232, 239 (S.D.N.Y.
2007)); see Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189, 195, 480 N.E.2d 679,
682-83 (1985) (although misconduct occurred in New York, New Jersey was the locus of
the tort because that was where the plaintiffs’ injuries occurred); cf. Pescatore v. Pan
American World Airways, 97 F.3d 1, 13-14 (2d Cir. 1996) (finding Scotland, the location
of the airplane crash, not to be the locus of the tort where the last event necessary to
render defendant liable occurred in Germany). Thus, New York law will apply unless
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Defendants can establish that its displacement in favor of Chinese law “will advance the
relevant substantive law purposes without impairing the smooth working of the multi-state
system or producing great uncertainty for litigants.” Neumeier, 31 N.Y.2d at 128-29 (placing
burden on party asserting exception applies); see Zatuchny, 34 A.D.3d at 398 (same);
Cunningham v. Williams, 28 A.D.3d 1211, 1212, 814 N.Y.S.2d 467, 469 (N.Y.A.D. 4th
Dep’t 2006) (same); Bodea v. Trans Nat Express, Inc., 286 A.D.2d 5, 11, 731 N.Y.S.2d
113, 117 (N.Y.A.D. 4th Dep’t 2001) (same).
Plaintiff argues that the New York Court of Appeals’ 2011 decision in Edwards
strongly supports the application of New York law in the present matter. (Pl’s Mem of Law
at 11-15.) Edwards involved a wrongful death and personal injury action resulting from a
crash in New York between a charter bus and a tractor-trailer. 17 N.Y.3d at 318, 325. The
injured and deceased bus passengers were Ontario domiciliaries, as were the defendant
bus driver, his employer, and the company that leased the bus. Id. at 325. The tractortrailer defendants, including the driver, his employer, and the companies that hired the
trailer, were Pennsylvania domiciliaries. Id. With respect to the plaintiffs’ claims against
the bus defendants, Ontario’s compensatory damages cap was applied based on the
parties’ shared domicile under the first Neumeier rule. Id. at 329. In a separate analysis,
however, the court rejected the Pennsylvanian defendants’ argument that the exception
to the third Neureimer rule should be applied to permit the application of the Ontario cap
to the claims asserted against them as well. The court stated:
[T]he third rule establishes the place of the tort – here, New York – as the
“normally applicable” choice in a conflicts situation such as this one, where
the domicile of plaintiffs, the domicile of the trailer defendants and the place
of the tort are different. Initially, the fact that the trailer defendants declined
to advocate for Pennsylvania law does not permit them to take advantage of
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the Ontario cap. To rule otherwise would only encourage a kind of forum
shopping.
Edwards, 17 N.Y.3d at 330. The court declined to apply the exception to this normally
applicable rule because:
there was no cause to contemplate a jurisdiction other than New York, the
place where the conduct causing injuries and the injuries themselves
occurred. The trailer defendants did not ask Supreme Court to consider the
law of their domicile, Pennsylvania, and they had no contacts whatsoever
with Ontario other than the happenstance that the plaintiffs and the bus
defendants were domiciled there.
Id. at 331.
Defendants argue that Edwards is distinguishable because that case involved an
automobile accident, therefore the entirety of the tortious conduct occurred within New
York. (Defs’ Mem of Law at 27 n. 12.) In contrast, Defendants argue, this Court has
already found in the instant case that the fact the crash occurred in New York was largely
fortuitous and “much of the causative misconduct alleged by Plaintiff . . . occurred outside
New York.” (Defs’ Mem of Law at 28-30); see In re Air Crash near Clarence Center, New
York, on February 12, 2009, 798 F. Supp. 2d at 489. In that decision, however, this Court
went on to expressly conclude that “the fortuitousness of the aircrash alone does not
necessarily warrant departure from the rule of lex loci delicti.” In re Air Crash near Clarence
Center, New York, on February 12, 2009, 798 F. Supp. 2d at 489. It was further
determined that there were significant allegations of misconduct within New York, including
“all of the operational errors and omissions that Plaintiffs contend warrant the imposition
of punitive damages.” Id. at 491.
Further, as noted above, this Court previously concluded that New York was the
locus of the tort in the instant case. Compare Id. at 491, with Pescatore, 97 F.3d at 13-14
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(declining to apply law of jurisdiction of airplane crash because it was not the same as the
locus of the tort), and Datskow v. Teledyne Cont’l Motors Aircraft Prods., 807 F. Supp. 941,
943-44 (W.D.N.Y. 1992) (same). Defendants correctly assert that a conflict of conductregulating laws, specifically punitive damages, was at issue in this prior decision. Contrary
to Defendants’ contention, however, the locus of the tort is not irrelevant to a loss allocation
analysis pursuant to the Neumeier rules. (Defs’ Reply Mem of Law at 6-7.) Its relevance
to the analysis is simply different. In a conflict of conduct-regulating laws, “the law of the
jurisdiction where the tort occurred will generally apply because that jurisdiction has the
greatest interest in regulating behavior within its borders.” In re Air Crash near Clarence
Center, New York, on February 12, 2009, 798 F. Supp. 2d at 488. In contrast, the locus
of the tort is utilized in the third Neumeier rule as a neutral deciding factor because the
parties’ individual domiciles have roughly equal interests in asserting their loss allocation
rules to their own domiciliaries. Cooney, 81 N.Y.2d at 74; Bodea, 286 A.D.2d. at 12. The
locus is therefore used “as a ‘tie breaker’ because that is the only State with which both
parties have purposefully associated themselves in a significant way.” Cooney, 81 N.Y.2d
at 74; see Anderson, 939 F. Supp. at 173.
Thus, the use of the locus of the tort in a loss allocation conflict analysis does not
run afoul of the general rule that where “the conflict involves allocation of losses, the site
of the tort is less important, and the parties’ domiciles are more important.” GlobalNet
Financial.Com, Inc., 449 F.3d at 384-85; Cooney, 81 N.Y.2d at 72. Nor has its use as a
neutral factor been eroded by more recent cases, as asserted by Defendants. Initially, the
argument that the exception to the lex loci delicti rule must apply in every aviation wrongful
death case in favor of the law of decedent’s beneficiaries’ domiciles has already been
9
rejected in this Circuit. See O’Rourke v. Eastern Air Lines, Inc., 730 F.2d 842, 849 (2d Cir.
1984), abrogated on other grounds by Salve Regina Coll. v. Russell, 499 U.S. 225, 230
(1991); see In re Air Crash at Belle Harbor, New York on November 12, 2001, 2006 WL
1288298 at *29; In re Air Crash near Clarence Center, New York, on February 12, 2009,
798 F. Supp. 2d at 489.
Further, although the Second Circuit stated in AroChem International, Inc. v. Buirkle
that, “in the so-called ‘split-domicile’ cases, the law of the domicile of one of the parties
ought to apply,” Plaintiff correctly points out that this generalized statement was dicta. 968
F.2d 266, 270 (2d Cir. 1992). There, the Court did not analyze a loss allocation conflict,
but considered only a conflict in conduct-regulating laws. Id. Further, to interpret AroChem
as precluding consideration of the locus of the tort in all loss allocation cases would be to
reject the third Neumeier rule altogether. There is no basis in New York case law to do so.
See In Re Air Crash Near Clarence Ctr., N.Y., on Feb. 12, 2009, 298 F. Supp. 2d at 492
(resolution depends on how New York state would apply its conflict-of-laws rules); In re Air
Crash at Belle Harbor, N.Y. on Nov. 12, 2001, 2006 WL 1288298, at *29 (same). Indeed,
in support of its statement, the Court in AroChem relied on Neumeier’s application of the
“Ontario guest statute to bar an Ontario plaintiff's action against a New York driver for
injuries sustained in an Ontario automobile accident.” 968 F.2d at 270 (citing Neumeier,
31 N.Y.2d at 125-26). There, however, Ontario’s law was less favorable to its own
domiciliary than that of the defendant’s domicile, therefore the New York Court of Appeals
applied Ontario law pursuant to the third Neumeier rule specifically because it was the
place of the automobile accident. 31 N.Y.2d at 128-29. The Court of Appeals held that to
deviate from the rule of lex loci delicti in that case would impair the smooth working of the
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multi-state system by “allowing a party to select a forum which could give him a larger
recovery than the court of his own domicile.” Id. at 129; see also Burnett v. Columbus
McKinnon Corp., 69 A.D.3d 58, 61-63, 887 N.Y.S.2d 405, 408-10 (N.Y.A.D. 4th Dep’t
2009).
As noted above, Edwards makes explicitly clear that this principle equally applies
to any defendants seeking to apply the law of a plaintiff’s domicile in order to limit the
amount of any recovery against them. 17 N.Y.2d at 330-31; see also Brewster v. Baltimore
& Ohio R. Co., 185 A.D.2d 653, 654, 585 N.Y.S.2d 647, 648-9 (N.Y.A.D. 4th Dep’t 1992).
Such is the case here, where Defendants are not requesting that this Court weigh China’s
interest in the litigation against that of their own domiciles. Instead, as in Edwards,
Defendants are requesting that this Court apply the law of a jurisdiction with which “they
had no contacts whatsoever . . . other than the happenstance that plaintiffs . . . were
domiciled there.” 17 N.Y.3d at 331. Thus, to rule that Chinese law applies in the instant
case would be to permit exactly the type of forum shopping that New York conflict analysis
has been structured to avoid.
Finally, the facts of this case do not warrant application of the exception to the third
Neumeier rule:
While New York employs ‘interest analysis’ rather than ‘grouping of contacts,’
the number and intensity of contacts is relevant when considering whether
to deviate from lex loci deliciti under the third Neumeier rule – i.e., in
determining whether even to analyze if displacing this ‘normally applicable’
choice would ‘advance the relevant substantive law purposes without
impairing the smooth working of the multi-state system or producing great
uncertainty for litigants.
Edwards, 17 N.Y.3d at 331 (quoting Neumeier, 31 N.Y.2d at 128); Walker v. Young Life
Saranac Village, No. 8:10-CV-1578 (GTS/CFH), 2012 WL 5880682, *12 (N.D.N.Y. Nov.
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12, 2012) (number and intensity of contacts is particularly relevant in determining whether
exception applies).
Here, because there are significant contacts evidencing the parties’ purposeful
association with New York, there is no reason to displace the normally applicable rule.
Edwards, 17 N.Y.3d at 331; see also Burnett, 69 A.D.3d at 61-63 (no reason to apply
exception to third Neumeier rule where Plaintiff purposely associated himself with locus
state). Although this Court previously recognized that some of the alleged misconduct
occurred outside New York, that same decision also recognized Defendants’ conduct in
this state:
For example, Colgan interviewed and tested [Captain Marvin] Renslow in
New York. Colgan does business in New York, conducts pilot interviews and
training in New York, maintains bases at LaGuardia and Albany airports in
New York, schedules regular flights to and from New York, and operates its
primary Q400 maintenance base in Albany, New York. In addition, the Q400
aircraft operating as Flight 3407 had its last pre-crash maintenance check in
New York on the day of the crash, including line checks on the ice detector
probes and de-ice boots.
In re Air Crash near Clarence Center, New York, on February 12, 2009, 798 F. Supp. 2d
at 491 (internal citations omitted). Similarly, Plaintiff and decedent both worked in New
York City for approximately two years prior to the crash. (Decl. of Jonathan C. Reiter, Esq.
¶¶ 3, 8, 12, Exs. 8-9, 15; Docket No. 288-1.) Further, “the interrelationship of the parties
was centered in New York” inasmuch as Flight 3407 was intended to land in Buffalo, New
York. Phelan v. Budget Rent A Car Sys., 267 A.D.2d 654, 655, 699 N.Y.S.2d 568
(N.Y.A.D. 3d Dep’t 1999). In contrast, the only contact with China alleged is that Plaintiff
and decedent, although residents of New York and New Jersey for over two years, were
legally domiciled there. (Pl’s Dep at 35, 41-43, Ex. C to Decl. of Jonathan E. DeMay, Esq.,
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Docket No. 295-2); see Edwards, 17 N.Y.3d at 331. Accordingly, whereas the application
of New York law is not likely to take any party by surprise, the application of Chinese law
at Defendants’ behest will likely “impair . . . the smooth working of the multi-state system
and produce great uncertainty for litigants by sanctioning forum shopping.” Neumeier, 31
N.Y.2d at 129 (internal brackets and quotation marks removed); see Edwards, 17 N.Y.3d
at 331; Burnett, 69 A.D.3d at 63; Phelan, 267 A.D.2d at 655; Brewster, 185 A.D.2d at 653.
III. CONCLUSION
Even assuming arguendo that Plaintiff and decedent were domiliciaries of China at
the time of the crash, the law of New York state, as the locus of the tort, applies under the
relevant choice-of-law rules. Plaintiff’s motion is therefore granted and Defendants’ crossmotion is denied.
IV. ORDERS
IT HEREBY IS ORDERED that Plaintiff’s motion for a declaration that New York law
applies to the issue of compensatory damages (Docket No. 288, 09-CV-961) is GRANTED;
FURTHER, that Defendants’ cross-motion for the application of Chinese law to the
issue of damages (Docket No. 295, 09-CV-961) is DENIED.
SO ORDERED.
Dated: November 19, 2013
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court
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