In 2002, K.T. (Plaintiff), a female New York resident, attended a New Year's Eve party on an island off the coast of Brazil. There she met Damon Dash, a well-known music entrepreneur and hip hop music producer in New York. According to news reports, Dash drives a $400,000 car and owns 1,300 pairs

Plaintiff alleges that Defendant made several sexual advances which she rejected. She left the party around 4.30 a.m. and returned to a guest house where she passed out. Plaintiff brought action in state court upon her return to New York, contending that Dash raped her while she was unconscious, and seeking money damages. Defendant moved to dismiss based on forum non conveniens, or for a ruling that Brazilian substantive law apply to this action. The court denied the forum non conveniens motion and refused to rule on the choice of law issue. Defendant appealed.

The New York Supreme Court, Appellate Division, affirms with modifications.

First, the Court reviews the issue of forum non conveniens. It notes that both parties, as well as many witnesses, live and work in New York. This case involves a personal interaction between New York residents that occurred in a foreign locale. The Brazilian law enforcement and hospital personnel did not gain any first-hand knowledge of the events but only heard Plaintiff's statements. Their records have been translated and made part of this record. It is unlikely that they have knowledge beyond their written reports. Considering the Defendant's financial resources, it should not be a problem to transport any relevant witnesses from Brazil to New York. Therefore, Defendant did not carry his burden of proof to warrant dismissal based on forum non conveniens.

The Court then turns to the choice of law issue. With Babcock v. Jackson, 12 N.Y.2d. 473, 477 (1963), New York adopted a flexible approach in this regard, giving "controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation. 12 N.Y.2d at 481."

"The first step in choice of law analysis is determining whether an actual conflict exists between the jurisdictions involved (see Matter of Allstate Ins. Co. [Stolarz], 81 NY2d 219, 223 [1993]). Once an actual conflict is established, the court must turn to consideration of which jurisdiction, 'because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation' (Babcock v Jackson, supra), an analysis often called 'interest analysis' (see Cooney v Osgood Mach., 81 NY2d 66, 72 [1993]). The framework of this analysis raises two inquiries: '(1) what are the significant contacts and in which jurisdiction are they located; and (2) whether the purpose of the law is to regulate conduct or allocate loss' (see Padula v Lilarn Props. Corp., 84 NY2d 519, 521 [1994] ... If the purpose of the competing laws is to allocate loss and the parties are both New Yorkers, 'there is often little reason to apply another jurisdiction's loss allocation rules' (see Cooney v Osgood Mach., 81 NY2d at 73); if their purpose is to regulate conduct, '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' ..." [Slip op. 4]

Here, to show an actual conflict between Brazilian and New York law, Defendant presented an affidavit from a Brazilian attorney, asserting that Plaintiff would have a cause of action in Brazil and may actually receive money damages. Brazilian law would require Plaintiff to prove that her honor or image was damaged by the assault.

This affidavit does not establish a sufficient conflict of laws. Even if there were a real conflict, it is New York law that should apply. Under the interest analysis, only New York has significant contacts with both parties. The parties essentially have no contacts with Brazil except for a few vacation days. As for loss allocation, where both parties are New Yorkers, there is no compelling reason to apply the foreign jurisdiction's law. The Court's analysis framework is as follows:

"The law of intentional assault applicable here ... includes components of loss allocation as well as of conduct regulation. However, it is not useful in this instance to embark upon what must necessarily be an arbitrary weighing process to decide whether such a rule should be deemed 'primarily' conduct-regulating or loss-allocating ... Even where a law is conduct- regulating, we do not blindly follow the lex loci rule. Rather, we must still decide whether the foreign jurisdiction has the greater interest in addressing the alleged conduct. [...]"

"However, in other types of situations the analysis is less one-sided, and the competing concerns of the two jurisdictions must be considered. When we consider the question of whether the alleged facts establish a tortious and compensable assault by one individual against another, it is apparent that there are other interests at stake besides Brazil's interest in enforcing its standards for the conduct of citizens and non-citizens within its border. New York has a strong interest in seeing that its aggrieved citizens obtain redress for wrongs committed upon them by other citizens of New York, regardless of where the act took place."

"The discussion in [Schultz v. Boy Scouts of Am., Inc., 65 NY2d 189, 197 (1985)], is helpful for framing our analysis here, although the case is not directly analogous to this one and the ruling is not controlling. .... The Schultz Court explained:"

"'[k]ey, however, was New York's interest in requiring a tort-feasor to compensate his guest for injuries caused by his negligence. That concern would have been completely thwarted if [the foreign jurisdiction's] laws were applied to the action, whereas the application of New York's law would not threaten the policy underlying [the foreign jurisdiction's] statute ...'" [...]

"Accordingly, it is useful in our analysis to consider whether the application of the law of Brazil would thwart or threaten an important policy underlying New York's law, or, on the other hand, whether the application of New York law would frustrate any policies underlying Brazil's applicable rule of law." [Slip op. 7-8]

Defendant argues that Brazil has a strong interest in regulating conduct within its borders. The present litigation, however, does not protect anybody in Brazil. In fact, the outcome of this litigation will have no impact upon Brazil or its citizens. Conversely, if Brazil's law applies, requiring victims of sexual assault to show that their "honor" or "image" was damaged, it could thwart New York's strong interest in compensating its resident for sexual assault perpetrated by another resident. Thus, the general rule that the law of the jurisdiction where the tort occurred should apply does not lend itself to this case. New York's interest in addressing the misconduct is stronger than Brazil's. Consequently, New York law must govern this action.

Citation: K.T. v. Dash, No. 9245 (N.Y. App. Div. December 14, 2006).