News Ltd. v. Australis Holdings Pty. Ltd. , 728 N.Y.S.2d 667 ( 2001 )

Order, Supreme Court, New York County (Ira Gammerman, J.), entered December 22, 2000, which, to the extent appealed from as limited by the brief, denied the News parties’ cross motion pursuant to CPLR 327 to dismiss the existing and proposed counterclaims and third-party claims on grounds of forum non conveniens, unanimously affirmed, with costs.

The motion court properly exercised its discretion in declining to dismiss the existing and proposed counterclaims and third-party claims on the grounds of forum non conveniens. Since News Limited commenced the initial breach of indenture action in New York, the News parties should not be permitted to use the doctrine of forum non conveniens as a shield (Kissimmee Mem. Hosp. v Wilson, 188 AD2d 802). We are not persuaded by the claim that a New York court will be unduly burdened by interpreting Australian law in this matter. We also note that the parties have acknowledged that each will bear its own expenses in producing any needed witnesses for testimony in New York. Concur — Nardelli, J. P., Mazzarelli, Wallach, Lerner and Friedman, JJ.