Sexual Harassment Case Survives Dismissal on Venue, Forum Non Conveniens Grounds

In Hernandez v. Encuentro Restaurant, 2018 WL 343905 (N.Y.Sup. Ct. Index 153385/2017, Jan. 9, 2018) – a sexual harassment, hostile work environment, and employment discrimination case – the court denied defendants’ motion to dismiss on the grounds of failure to state a claim, “forum non conveniens”, and improper venue.

Failure to State a Claim

Initially, the court denied defendants’ motion to dismiss for failure to state a claim, finding that “plaintiff’s claims of sexual harassment, hostile work environment and discrimination are minimally adequate to satisfy the pleading requirements for such claims.” Unfortunately, the court’s decision does not explain the facts of the case. For reference, here is a copy of plaintiff’s complaint.

Forum Non Conveniens

Next, the court turned to the issue of defendants’ forum non conveniens argument. It summarized the law as follows:

CPLR 327(a) codifies the doctrine of forum non conveniens. It states that ‘when the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action‘ (CPLR 327[a]). The movant seeking dismissal has a heavy burden of establishing ‘that New York is an inconvenient forum and that a substantial nexus between New York and the action is lacking‘ (see Kuwaiti Eng’g Group v. Consortium of Intl. Consultants, LLC, 50 AD3d 599, 600).

Among the factors to be considered are the burden on the New York courts, potential hardship to the defendant, the unavailability of an alternate forum, the residence of the parties, and the location of the events giving rise to the transactions at issue in the litigation (see Islamic Republic of Iran v. Pahlavi, 62 NY2d 474, 479, cert. denied 469 U.S. 1108). Other factors include the location of potential witnesses and documents and the potential applicability of foreign law (see Shin—Etsu Chem. Co., Ltd. v. ICICI Bank Ltd., 9 AD3d 171, 176-177). Under New York law, the availability of an alternative forum, though a ‘most important factor to be considered in ruling on a motion to dismiss, is not an absolute precondition for dismissal on forum non conveniens grounds‘ (Islamic Republic of Iran, supra, at 481). Application of the doctrine is a matter of discretion

The court held that defendants failed to satisfy any of the relevant factors, and thus denied their motion to dismiss on this ground.


Finally, the court denied defendants’ motion to dismiss on the ground of improper venue. It explained:

Venue, as codified in CPLR 503(a), states that ‘except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; the county in which a substantial part of the events or omissions giving rise to the claim occurred; or, if none of the parties then resided in the state, in any county designated by the plaintiff.‘ (CPLR 503 [a]). The appropriate remedy for improper venue would be transferring the case to a proper venue, not an outright dismissal of the complaint, as defendants have moved for here (see, e.g., Weingarten v. Board of Educ. of City School Dist. of City of New York, 776 NYS 2d 701). Even still, a change of venue requires compliance with CPLR 510 and 511, which defendants have not satisfied in this case.

The court did, however, deny this motion “without prejudice to any possible resubmission of a motion for change of venue, should defendants be able to establish a reasonable basis for their delay in seeking such relief.”

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