balance factors in New York

2013Defendant’s challenge to the voluntariness of his plea and his argument that he was denied the effective assistance of counsel are unpreserved for our review inasmuch as the record does not reflect that he moved to withdraw his plea or vacate the judgment of conviction (see People v Sylvan, 107 AD3d 1044, 1045-1046 [2013]; People v Ladieu, 105 AD3d 1265, 1265-1266 [2013], lv denied 21 NY3d 1017 [2013]).

2013Defendant’s challenge to the voluntariness of his plea and his argument that he was denied the effective assistance of counsel are unpreserved for our review inasmuch as the record does not reflect that he moved to withdraw his plea or vacate the judgment of conviction (see People v Sylvan, 107 AD3d 1044, 1045-1046 [2013]; People v Ladieu, 105 AD3d 1265, 1265-1266 [2013], lv denied 21 NY3d 1017 [2013]).

2013Defendant’s challenge to the voluntariness of his plea and his argument that he was denied the effective assistance of counsel are unpreserved for our review inasmuch as the record does not reflect that he moved to withdraw his plea or vacate the judgment of conviction (see People v Sylvan, 107 AD3d 1044, 1045-1046 [2013]; People v Ladieu, 105 AD3d 1265, 1265-1266 [2013], lv denied 21 NY3d 1017 [2013]).

2013Defendant’s challenge to the voluntariness of his plea and his argument that he was denied the effective assistance of counsel are unpreserved for our review inasmuch as the record does not reflect that he moved to withdraw his plea or vacate the judgment of conviction (see People v Sylvan, 107 AD3d 1044, 1045-1046 [2013]; People v Ladieu, 105 AD3d 1265, 1265-1266 [2013], lv denied 21 NY3d 1017 [2013]).

2013To the extent that the waiver encompassed any nonwaivable issues, they are simply excluded from its scope and the balance of the waiver remains valid (see People v Gruber, 108 AD3d 877, 878 [2013]; People v Neal, 56 AD3d 1211 , 1211 [2008], lv denied 12 NY3d 761 [2009]).

2013To the extent that the waiver encompassed any nonwaivable issues, they are simply excluded from its scope and the balance of the waiver remains valid (see People v Gruber, 108 AD3d 877, 878 [2013]; People v Neal, 56 AD3d 1211 , 1211 [2008], lv denied 12 NY3d 761 [2009]).

2013Although we hold that New York’s interest is not sufficient to require the application of New York law herein, nonetheless New York has a sufficient interest and nexus with the claims, because New York banking facilities were allegedly used to process the wire transfers (see Georgia-Pacific Corp. v Multimark’s Inti., 265 AD2d 109, 112 [1st Dept 2000]; cf. Chawafaty v Chase Manhattan Bank, 288 AD2d 58 [1st Dept 2001], lv denied 98 NY2d 607 [2002] [incidental use of a New York bank insufficient to create a nexus]; and see Lied v Lebanese Can.

2013Although we hold that New York’s interest is not sufficient to require the application of New York law herein, nonetheless New York has a sufficient interest and nexus with the claims, because New York banking facilities were allegedly used to process the wire transfers (see Georgia-Pacific Corp. v Multimark’s Inti., 265 AD2d 109, 112 [1st Dept 2000]; cf. Chawafaty v Chase Manhattan Bank, 288 AD2d 58 [1st Dept 2001], lv denied 98 NY2d 607 [2002] [incidental use of a New York bank insufficient to create a nexus]; and see Lied v Lebanese Can.

2026Defendants had the "heavy burden" of establishing that the balance of these factors points "strongly in [their] favor" ( Elmaliach v Bank of China Ltd. , 110 AD3d 192 , 208 [1st Dept 2013] [internal quotation marks omitted]), and the court providently concluded that they did not meet that burden.

2026Defendants had the "heavy burden" of establishing that the balance of these factors points "strongly in [their] favor" ( Elmaliach v Bank of China Ltd. , 110 AD3d 192, 208 [1st Dept 2013] [internal quotation marks omitted]), and the court providently concluded that they did not meet that burden.

2026Although plaintiff is a resident of Pennsylvania and her slip and fall accident occurred in the Bahamas, where some of the nonparty witnesses and documents are likely to be located, these facts did not require disturbing plaintiff's choice of New York as the forum ( see Mionis v Bank Julius Baer & Co., Ltd. , 9 AD3d 280, 282 [1st Dept 2004]; Amlon Metals v Liu , 292 AD2d 163, 164 [1st Dept 2002]).

2026Although plaintiff is a resident of Pennsylvania and her slip and fall accident occurred in the Bahamas, where some of the nonparty witnesses and documents are likely to be located, these facts did not require disturbing plaintiff's choice of New York as the forum ( see Mionis v Bank Julius Baer & Co., Ltd. , 9 AD3d 280, 282 [1st Dept 2004]; Amlon Metals v Liu , 292 AD2d 163, 164 [1st Dept 2002]).

2026Although plaintiff is a resident of Pennsylvania and her slip and fall accident occurred in the Bahamas, where some of the nonparty witnesses and documents are likely to be located, these facts did not require disturbing plaintiff's choice of New York as the forum ( see Mionis v Bank Julius Baer & Co., Ltd. , 9 AD3d 280, 282 [1st Dept 2004]; Amlon Metals v Liu , 292 AD2d 163, 164 [1st Dept 2002]).

2026Although plaintiff is a resident of Pennsylvania and her slip and fall accident occurred in the Bahamas, where some of the nonparty witnesses and documents are likely to be located, these facts did not require disturbing plaintiff's choice of New York as the forum ( see Mionis v Bank Julius Baer & Co., Ltd. , 9 AD3d 280, 282 [1st Dept 2004]; Amlon Metals v Liu , 292 AD2d 163, 164 [1st Dept 2002]).

2025The plaintiff’s lack of reasonable diligence in serving the complaint tips the balance of the factors in defendants’ favor, and an extension of time is not warranted (see Cassini v Advance Publications, Inc., 125 AD3d 467, 468 [1st Dept 2015]; Khedouri v Equinox, 73 AD3d 532, 532-33 [1st Dept 2010]).

2025The plaintiff’s lack of reasonable diligence in serving the complaint tips the balance of the factors in defendants’ favor, and an extension of time is not warranted (see Cassini v Advance Publications, Inc., 125 AD3d 467, 468 [1st Dept 2015]; Khedouri v Equinox, 73 AD3d 532, 532-33 [1st Dept 2010]).

2020The court properly balanced the forum non conveniens factors set forth in Islamic Republic of Iran v Pahlavi ( 62 NY2d 474, 479 [1984], cert denied 469 US 1108 [1985]), including the nonresidency of all but one of the parties, and the allegations concerning the location of the events giving rise to the action and of the potential witnesses and documents, which center largely in Brazil, and correctly found that the balance of factors supports the conclusion that defendants met their heavy burden of establishing that New York is an inconvenient forum lacking a substantial nexus with the action (

2019While any nonwaivable issues purportedly encompassed by a waiver will be excluded from its scope, the balance of the waiver remains valid and enforceable (see People v Henion, 110 AD3d 1349, 1350 [3d Dept 2013]; People v Neal, 56 AD3d 1211 , 1211 [4th Dept 2008]; see also Callahan, 80 NY2d at 282 [holding that “a bargained-for waiver of the right to appeal is ineffective to the extent it impairs the defendant’s ability to obtain appellate review” of unwaivable claims] [emphasis added]).

2019While any nonwaivable issues purportedly encompassed by a waiver will be excluded from its scope, the balance of the waiver remains valid and enforceable (see People v Henion, 110 AD3d 1349, 1350 [3d Dept 2013]; People v Neal, 56 AD3d 1211 , 1211 [4th Dept 2008]; see also Callahan, 80 NY2d at 282 [holding that “a bargained-for waiver of the right to appeal is ineffective to the extent it impairs the defendant’s ability to obtain appellate review” of unwaivable claims] [emphasis added]).

2018Were the issue properly before us, we would find it to be lacking in merit given that counsel secured a very favorable plea bargain and nothing in the record casts doubt on the apparent effectiveness of counsel ( see People v Caban , 5 NY3d 143, 152 [2005]; People v London , 153 AD3d 1032, 1033 [2017]; People v Saylor , 132 AD3d 1018, 1018-1019 [2015]).

2018Were the issue properly before us, we would find it to be lacking in merit given that counsel secured a very favorable plea bargain and nothing in the record casts doubt on the apparent effectiveness of counsel ( see People v Caban , 5 NY3d 143, 152 [2005]; People v London , 153 AD3d 1032, 1033 [2017]; People v Saylor , 132 AD3d 1018, 1018-1019 [2015]).

2018Were the issue properly before us, we would find it to be lacking in merit given that counsel secured a very favorable plea bargain and nothing in the record casts doubt on the apparent effectiveness of counsel ( see People v Caban , 5 NY3d 143, 152 [2005]; People v London , 153 AD3d 1032, 1033 [2017]; People v Saylor , 132 AD3d 1018, 1018-1019 [2015]).

2017To the extent that the balance of this claim impacts upon the voluntariness of defendant’s plea, “such claim survives his valid appeal waiver but is unpreserved for our review in the absence of an appropriate postallocution motion” (People v Lewis, 143 AD3d 1183, 1185 [2016]).

2017Finally, in light of defendant’s valid appeal waiver, his challenge to the severity of his sentence is precluded (see People v Lambert, 151 AD3d 1119, 1120 [2017], lv denied 29 NY3d 1092 [2017]; People v Caldwell, 148 AD3d 1468, 1468 [2017]).

2017Finally, in light of defendant’s valid appeal waiver, his challenge to the severity of his sentence is precluded (see People v Lambert, 151 AD3d 1119, 1120 [2017], lv denied 29 NY3d 1092 [2017]; People v Caldwell, 148 AD3d 1468, 1468 [2017]).