Opinion
14437 Index No. 656949/19 Case No. 2021–01170
10-21-2021
EXPRESS TRADE CAPITAL, INC., Plaintiff–Respondent, v. Brian HOROWITZ, et al., Defendants–Appellants.
Law Offices of Michael J. Langer, P.C., Mineola (Michael J. Langer of counsel), for appellants. Express Trade Capital, Inc., New York (Benjamin M. Ellis of counsel), for respondent.
Law Offices of Michael J. Langer, P.C., Mineola (Michael J. Langer of counsel), for appellants.
Express Trade Capital, Inc., New York (Benjamin M. Ellis of counsel), for respondent.
Acosta, P.J., Manzanet–Daniels, Kern, Oing, Kennedy, JJ.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered on or about October 1, 2020, as amended, which denied defendants’ motion to vacate their default, unanimously affirmed, with costs.
Defendants failed to proffer either a reasonable excuse for their default or a meritorious defense (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ). They admitted that they had received various "papers" from plaintiff, including the motion, and invoked the pandemic, but did not explain how it interfered with their ability to respond.
The forum selection clause in the settlement agreement between the parties is a sound basis for the exercise by the court of personal jurisdiction over defendants, and, since there is no evidence that the clause is the product of fraud or overreaching or is unfair or unreasonable, is enforceable (see National Union Fire Ins. Co. of Pittsburgh, Pa. v. Williams, 223 A.D.2d 395, 398, 637 N.Y.S.2d 36 [1st Dept. 1996] ). Having agreed by contract to submit to the jurisdiction of the court, defendants are precluded from attacking the court's jurisdiction on forum non conveniens grounds (see Sterling Natl. Bank v. Eastern Shipping Worldwide, Inc., 35 A.D.3d 222, 223, 826 N.Y.S.2d 235 [1st Dept. 2006] ). Moreover, defendants’ confessions of judgment admitted that they were doing business in New York.
The 2019 amendment to CPLR 3218(a)(1) is inapplicable. It concerns entry of a judgment against a nonresident without an action. Plaintiff filed an action under CPLR 3213, which the court correctly concluded was appropriate based on the settlement agreement and confessions of judgment.
We have considered defendants’ remaining arguments and find them unavailing.