Opinion
2014-09-4
Tanner Ross BHONLAY, etc., et al., Plaintiffs–Appellants, v. RAQUETTE LAKE CAMPS, INC., et al., Defendants–Respondents.
Weisfuse & Weisfuse, LLP, New York (Martin H. Weisfuse of counsel), for appellants. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Glen S. Feinberg of counsel), for respondents.
Weisfuse & Weisfuse, LLP, New York (Martin H. Weisfuse of counsel), for appellants.Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Glen S. Feinberg of counsel), for respondents.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered July 16, 2013, which granted defendants' motion to change the venue of this action from New York County to Hamilton County, and denied plaintiffs' cross motion to retain venue in New York County, unanimously affirmed, without costs.
We are constrained by this Court's holdings in Medina v. Gold Crest Care Ctr., Inc., 117 A.D.3d 633, 988 N.Y.S.2d 578 (1st Dept.2014) and Hendrickson v. Birchwood Nursing Home Partnership, 26 A.D.3d 187, 807 N.Y.S.2d 876 (1st Dept.2006). In any event, whether the motion to change venue was analyzed as one based on “improper” venue or not, the agreement would control. In other words, even if we deemed a demand necessary, we would still exercise our discretion to enforce the agreement ( see Pittman v. Maher, 202 A.D.2d 172, 175, 608 N.Y.S.2d 199 [1st Dept.1994] [existence of venue agreement is one of the “limited situations” in which the court may disregard strict compliance with the statute]; Callanan Indus. v. Sovereign Constr. Co., 44 A.D.2d 292, 294–295, 354 N.Y.S.2d 486 [3d Dept.1974] ).
There is no basis for disregarding the venue agreement. Plaintiff has not demonstrated that enforcement of the venue clause would be unjust or would contravene public policy, or that the clause was rendered invalid by fraud or overreaching ( see Molino v. Sagamore, 105 A.D.3d 922, 963 N.Y.S.2d 355 [2d Dept.2013] [enforcing against Queens resident venue clause in rental agreement requiring litigation of disputes in Warren County] ). This case has been transferred to Fulton County, because there are no Supreme Court sessions held in the parties' selected venue of Hamilton County. While there is evidence that it would be inconvenient for plaintiff and his witnesses to travel to Fulton County for trial, it cannot be said that “the selected forum would be so gravely difficult that [plaintiff] would, for all practical purposes, be deprived of [his] day in court” (LSPA Enter., Inc. v. Jani–King of N.Y., Inc., 31 A.D.3d 394, 395, 817 N.Y.S.2d 657 (2d Dept.2006); see also Horton v. Concerns of Police Survivors, Inc., 62 A.D.3d 836, 878 N.Y.S.2d 793 (2d Dept.2009), lv. denied 13 N.Y.3d 706, 2009 WL 2959671 (2009). MAZZARELLI, J.P., RENWICK, FEINMAN, GISCHE, KAPNICK, JJ., concur.