Summary
holding that no close relationship existed where a non-party seeking to enforce a forum selection clause had no relationship with one party to the contract at issue and "only an arm's-length" relationship with the other
Summary of this case from Bonanno v. VTB Holdings, Inc.Opinion
542
March 20, 2003.
Order, Supreme Court, New York County (Marilyn Shafer, J.), entered on or about August 28, 2002, which, inter alia, granted defendants' motion to dismiss the complaint for lack of jurisdiction, unanimously affirmed, with costs.
William P. Laino, for plaintiff-appellant.
Michael S. Meisel, for defendants-respondents.
Before: Mazzarelli, J.P., Sullivan, Ellerin, Friedman, Gonzalez, JJ.
Plaintiff concedes that there is no jurisdictional basis for this action unless it can enforce the forum selection clauses of certain loan or pledge agreements. Although plaintiff is not a party to those agreements, it claims it may enforce them as a third-party beneficiary. Plaintiff, however, is, at most, an incidental beneficiary of those agreements (see Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 66 N.Y.2d 38, 43-46), and thus may not enforce their forum selection clauses. Nor are the management agreements, to which plaintiff is a party, part of a single "global transaction" including the agreements containing the forum selection clauses upon which plaintiff seeks to rely. The various agreements said to constitute the "global transaction" were entered into by different parties for different purposes, and contain only passing reference to each other (cf. Indosuez Intl. Fin. B.V. v. Natl. Reserve Bank, 98 N.Y.2d 238, 246-248). Finally, because plaintiff has only an arm's-length relationship with defendants, and no relationship with the bank, it cannot enforce the forum selection clauses in the loan or pledge agreements on the ground that it is "closely related" to a signatory (cf. Direct Mail Prod. Servs. Ltd. v. MBNA Corp., 2000 U.S. Dist LEXIS 12945, *7-*14 (S.D. NY, Sept. 7, 2000)].
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.