Plaintiff, acting in his capacity as the executor of an estate probated in New Jersey, seeks restitution of a portion of funds he alleges was mistakenly distributed to defendant. The distribution was allegedly to have been governed, in part, by Qualified Domestic Relations Orders entered in Bergen County Superior Court.
Forum non conveniens is a rule whose flexibility is based on the facts and circumstances of each particular case ( see Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 479, cert denied 469 U.S. 1108). Here, no great hardship for either party would be presented in trying this case in Bergen County, the locus of both the QDROs and the probate proceeding. Moreover, the need to apply foreign law is an appropriate concern on a forum non conveniens motion ( Brown v. Dataw Is. Realty, 151 A.D.2d 1044); see 2 Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 327.02). Plaintiff's claim and defendant's counterclaims raise legal issues in which New Jersey has the greater interest, outweighing any nexus the matter has with New York ( Silver v. Great Am. Ins. Co., 29 N.Y.2d 356, 361). Under the unusual circumstances of this case, we impose the additional condition upon defendant as indicated.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.