�
 |
|
 |
|
|
| Justice Kapnick's Preliminary Ruling - |
| View previous topic
:: View next topic |
rohn
 Posted:
Tue Jun 13, 2006 11:50 am |
|
|
|
Justice Kapnick's Preliminary Ruling
SUPREME COURT OF THE STATE OF NEW YORK
IN THE COUNTY OF NEW YORK
-------------------------------------------------------------------
ELIZABETH ANN TWITTY AND DAVID EDWARD
HOLLOWAY Index Number 102254/06 Plaintiffs
O R D E R
- against –
JORAN VAN DER SLOOT and PAULUS VAN DER
SLOOT,
Defendants
This motion, by the Defendants for an order staying the within action in accordance with 3211 of the Civil Practice Laws and Rules (“CPLR”) and dismissing the within action in accordance with CPLR 327(a) was heard by me on May 17, 2006.
Present in court at the hearing were Joseph Tacopina, Esq. counsel for the moving party Defendants and Scott Barber, Esq. and John Q. Kelly, Esq. counsel for the responding Plaintiffs. The Plaintiff, Elizabeth Ann Twitty was also present.
I have read the motion record filed by Mr Tacopina including the affirmation of Mr. Tacpoina, dated March 7, 2006, with attachments, filed. I have also reviewed the responding material filed on behalf of the Plaintiffs including affirmation of Scott Balber, dated April 10, 2006 and the affidavits of Brian Riser, Nancy Laraine Watson, Edward Urban Kissel and Elizabeth Lewis Kain all dated April 6, 2006, the affidavits of Ariel Bitran, Dewi Aryanthi Billano, Katherine Madison Whatley, Elizabeth Haileigh Nicole Uncapher and John Holmes Cantrell all dated April 5, 2006, the affidavit of Katherine Lee Brown, dated April 4, 2006, the affidavit of C. Helen Lejuez, dated March 17, 2006 and the affidavit of Elizabeth Ann Twitty dated March 31, 2006 with the all respective exhibits attached thereto, filed.
I have also reviewed the reply material filed by Mr. Tacopina that included his own affidavit sworn April 25, 2006 with attached exhibits and the affidavits of Karen Martina dated April 22, 2006, Rosemarie Arnold Esq., dated April 22, 2006, the affidavit of Dilma Rends-Geerman, dated April 24, 2006, Julia Renfro dated April 25, 2006 and affidavit of Robin A. Schair, Esq. dated April 24, 2006 all with the exhibits attached thereto, filed
During the course of oral argument, Mr. Kelly sought an order from this court granting leave to for the Plaintiffs to introduce material that had not been served on Mr. Tacopina in accordance with the CPLR. Mr Tacopina objected to the material being introduced as evidence. The court provided Mr. Kelly the opportunity to outline the alleged evidence and the basis upon which he sought leave. Mr. Tacopina was provided the opportunity to respond.
The material sought to be introduced on behalf of the Plaintiffs was an affidavit from C. Helen Lejuez, sworn in response to the aforementioned affidavit of Karen Martina. In the her affidavit of March 17, 2006 Ms Lejuez, an Aruban attorney, deposed that she has spoken with a young woman (identified as “Jane Doe”) residing in Aruba who advised that she has been sexually assaulted by the defendant Joran Van Der Sloot. The affidavit went on to say that the young woman was reluctant to testify in Aruba.
In their reply material, the Defendant’s provided an affidavit sworn by one Karen Martina who deposed that she believed she was the Jane Doe in question, but she denied that she had informed Ms Lejuez that she had been a victim of a sexual assault and further denied her reluctance to testify in Aruba.
The plaintiff wished to introduce a further affidavit from Ms Lejuez, disputing Ms Martina’s affidavit. Following oral argument, the court decided not to exercise its discretion to admit the affidavit as Mr. Tacopina stated he had not seen the document prior to the hearing and had no chance to respond. Mr. Kelly was unable to provide an explanation as to why the affidavit had not been served prior to the date and time of the court hearing. Further, the court is unable to determine on the basis of affidavit evidence alone, which of the affiants was being truthful. Finally, and in any event, the Plaintiff had the material been before the court, the Plaintiffs would have been put in the legally embarrassing position of seeking to impeach one of its own grounds for arguing that New York was the proper jurisdiction.
None of the comments made by Mr. Kelly or Mr. Tacopina during the hearing of this oral motion will be considered in the reasons for the court’s decision.
In addition to the above material, I have also reviewed the memoranda of law filed on behalf of the moving party and the responding party and I wish to commend counsel for their exhaustive review of the relevant case law and their insightful, cogent and helpful written arguments.
The fact situation before this court, although not complex, is somewhat uncommon. It may be that further facts in support of either party’s position might be elicited during the conduct of the action that such facts would greatly assist the court in determining whether or not New York is a forum conveniens for this action. Unfortunately, the rules provide that a motion under CPLR 3211 must be brought promptly and certainly well before depositions and documentary discovery.
Consequently a decision on a motion for a declaration of forum non conveniens must be based only on material properly served and filed and before the court. It is that material alone upon which the court has reached its decision.
This court is acutely aware of the importance of this case to the parties involved. The Plaintiffs, frustrated by the course of the criminal investigation in Aruba into the disappearance of their daughter, Natalee Holloway (“Natalee”) understandably want the Defendants to be held to account for the tortious acts alleged in the original complaint and feel that such accountability is impossible to achieve in Aruba. The Defendants for their part wish to be exonerated, but feel that any determination of the facts in this matter are best and more conveniently left to a court in the jurisdiction where, in their view, a majority of the witness reside and where all the alleged wrongful acts occurred.
None of the parties deserve to have this subject matter of the Defendants’ motion remain in suspension.
This court is also mindful of the intense media interest that has been generated and the public interest that has arisen as a result.
Given the foregoing, this court has decided to issue a preliminary ruling on the motion now and present supplementary written reasons at a future date and by no later than July 22, 2006. The court by its own motion hereby extends the time for appeal or during which a motion for leave to appeal may be brought by ordering that the date of the order that triggers the relevant periods for appealing or seeking leave to appeal shall be considered the date upon which the written reasons of this court are delivered as aforesaid.
The court would now like to issue its ruling on the Defendant’s motion.
It would like to, but it cannot. I have made a ruling, trust me. I know what it is, but I have to keep it quiet for a while, until one or two precedents are confirmed. That should happen by tomorrow. Wednesday by the very, very, absolute latest...and then I’ll tell. I promise. It’s a gangbuster of an order. It will blow the case wide open
Trust me, I know what the order is that I have made, but so many lives have been tainted already that I really must keep this information to myself until these last one or two small pieces of information are confirmed. Please believe me when I say that I know the ruling, but darn it, I just can’t tell you. Oh how I would love to tell you, but…I can’t.
Bye for now.
“Kapnick, J.”
|
|
Joined: 23 Mar 2006
Posts: 1167
Location: Toronto, Ontario
|
|
|
 |
 |
 |
|
| pax
Posted:
Tue Jun 13, 2006 3:01 pm |
|
|
|
Rohn, this one is my favorite of yours so far.
It caused quite a stir. Sort of a message board "War of the World." You being Orson Welles (of course, when he was thin).
Number One hit, worldwide. You kick ass.
|
|
Joined: 23 Mar 2006
Posts: 16326
Location: Wish You Were Here
|
|
|
|
|
|
|
|
|
|
|
|
 |
|
 |
|
You cannot post new topics in this forum
You cannot reply to topics in this forum
You cannot edit your posts in this forum
You cannot delete your posts in this forum
You cannot vote in polls in this forum
|
�
Jasidogdotcom template v.1.0.4 © jasidog.com
Powered by phpBB
© 2001, 2004 phpBB Group
|
