Borden Chemical, Inc. v. Growth Products, Inc.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about April 4, 2005, which denied plaintiff’s cross motion to dismiss the complaint pursuant to CPLR 3211 (a) (4) or CPLR 327, unanimously affirmed, with costs.

Although plaintiff, after having commenced this action in New York, now contends that the action should be litigated in Nebraska where another action involving the parties is pending, it has made no showing warranting the action’s dismissal on forum non conveniens grounds or by reason of the pendency of the Nebraska action. Both parties are New York residents (see Yoshida Print. Co. v Aiba, 213 AD2d 275 [1995]), and most of the relevant contractual transactions occurred here (see Seneca Ins. Co. v Lincolnshire Mgt., 269 AD2d 274, 275 [2000]). While plaintiff states that its witnesses are not from New York, it has made no showing that litigating the matter here as opposed to Nebraska will result in witness hardship or unavailability (see *338Holness v Maritime Overseas Corp., 251 AD2d 220, 225 [1998]). Nor does the pendency of the Nebraska action constitute a viable alternative ground for the relief plaintiff seeks since each action involves causes of action and damage claims which differ significantly from the other (see CPLR 3211 [a] [4]). Concur— Tom, J.P., Friedman, Sullivan, Gonzalez and McGuire, JJ.