Opinion
2003-03140
Submitted September 24, 2003.
October 27, 2003.
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated January 24, 2003, as denied their motion to change venue from Kings County to Sullivan County.
Smith Mazure Director Wilkins Young Yagerman, P.C., New York, N.Y. (Steven M. Pivovar of counsel), for appellants.
Percy A. Randall, Kew Gardens, N.Y., for respondent.
Before: DAVID S. RITTER, J.P., NANCY E. SMITH, WILLIAM D. FRIEDMANN, HOWARD MILLER, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the Clerk of the Supreme Court, Kings County, is directed to deliver to the Clerk of the Supreme Court, Sullivan County, all papers filed in this action and certified copies of all minutes and entries ( see CPLR 511[d]).
The plaintiff entered into an agreement with the defendants, inter alia, to rent canoes, which contained a clause providing that "[t]he Venue of any dispute that may arise out of this agreement or otherwise between the parties * * * shall be either the Town of Tusten, N.Y. Justice Court or the County or State Supreme Court in Sullivan County."
"[F]orum selection clauses are prima facie valid. To set aside such a clause, a party must show either that enforcement would be unreasonable and unjust or that the clause is invalid because of fraud or overreaching, such that a trial in the forum set in the contract would be so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of his or her day in court" ( Hirschman v. National Textbook Co., 184 A.D.2d 494, 495; see Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12-18). Absent a showing that it should be set aside, a forum selection clause will control ( Hirschman v. National Textbook Co., supra; see Bremen v. Zapata Off-Shore Co., supra at 12, 15). The plaintiff failed to make a sufficient showing that the clause was the product of overreaching or was unreasonable, or that its enforcement would be unjust ( see Di Ruocco v. Flamingo Beach Hotel Casino, 163 A.D.2d 270, 272). The plaintiff offered no valid ground for setting aside the forum selection clause. Accordingly, the defendants' motion to transfer venue from Kings County to Sullivan County should have been granted.
RITTER, J.P., SMITH, FRIEDMANN, H. MILLER and CRANE, JJ., concur.