Opinion
2012-07-11
CREATIVE MOBILE TECHNOLOGIES, LLC, appellant, v. SMART MODULAR TECHNOLOGIES, INC., respondent.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, N.Y. (William J. Kelly of counsel), for appellant. Davis Polk & Wardwell, LLP, New York, N.Y. (Neal A. Potischman and Lawrence Jacobs of counsel), for respondent.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, N.Y. (William J. Kelly of counsel), for appellant. Davis Polk & Wardwell, LLP, New York, N.Y. (Neal A. Potischman and Lawrence Jacobs of counsel), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and SHERI S. ROMAN, JJ.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated May 10, 2011, which granted that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211 (a)(1).
ORDERED that the order is affirmed, with costs.
“Although once disfavored by the courts, it is now recognized that parties to a contract may freely select a forum which will resolve any disputes over the interpretation or performance of the contract” ( Brooke Group v. JCH Syndicate 488, 87 N.Y.2d 530, 534, 640 N.Y.S.2d 479, 663 N.E.2d 635). “A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its 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;see Adler v. 20/20 Cos., 82 A.D.3d 918, 919, 919 N.Y.S.2d 38;Bernstein v. Wysoki, 77 A.D.3d 241, 248–249, 907 N.Y.S.2d 49). Here, the forum selection clause contained in the defendant's standard “Terms and Conditions” was expressly and fully incorporated into the parties' settlement agreement, and the plaintiff's general allegations of fraud relating to the settlement agreement are insufficient to render the clause unenforceable for the purpose of this action ( see Harry Casper, Inc. v. Pines Assoc., L.P., 53 A.D.3d 764, 765, 861 N.Y.S.2d 820;LSPA Enter., Inc. v. Jani–King of N.Y., Inc., 31 A.D.3d at 395, 817 N.Y.S.2d 657;Rokeby–Johnson v. Kentucky Agric. Energy Corp., 108 A.D.2d 336, 341, 489 N.Y.S.2d 69;cf. DeSola Group v. Coors Brewing Co., 199 A.D.2d 141, 141–142, 605 N.Y.S.2d 83). Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1) on the basis that the forum selection clause precluded commencement of the action in New York ( see Lischinskaya v. Carnival Corp., 56 A.D.3d 116, 123, 865 N.Y.S.2d 334).