Summary
finding dismissal was proper based on forum selection clause
Summary of this case from Whitehurst v. LuskOpinion
02-14-2017
LANDMARK VENTURES, INC., Plaintiff–Appellant, v. Doron BIRGER, Defendant–Respondent.
McCabe & Flynn LLP, Rockville Centre (William B. Flynn of counsel), for appellant. Beys Liston Mobargha & Berland LLP, New York (Nader Mobargha of counsel), for respondent.
McCabe & Flynn LLP, Rockville Centre (William B. Flynn of counsel), for appellant.
Beys Liston Mobargha & Berland LLP, New York (Nader Mobargha of counsel), for respondent.
TOM, J.P., SWEENY, RENWICK, MOSKOWITZ, KAPNICK, JJ.
Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered July 20, 2015, dismissing the amended verified complaint, unanimously affirmed, with costs.
"[A] contractual forum selection clause is documentary evidence that may provide a proper basis for dismissal pursuant to CPLR 3211(a)(1)" (Lischinskaya v. Carnival Corp., 56 A.D.3d 116, 123, 865 N.Y.S.2d 334 [2d Dept.2008] [internal citations omitted], lv. denied 12 N.Y.3d 716, 2009 WL 1851758 [2009] ; see also Sydney
Attractions Group Pty Ltd. v. Schulman, 74 A.D.3d 476, 902 N.Y.S.2d 82 [1st Dept.2010] ).
The forum selection clause in the 2012 supplement to the parties' 2010 agreement states, "Any disputes between the Parties with relation to or arising out of this Supplement or the [2010] Agreement or breach of any part thereto [sic], or to any matter stemming thereof [sic] will be brought to the suitable jurisdiction of Tel Aviv district." The instant dispute has "relation to" and arises out of the Confidentiality and Intellectual Property Agreement (CIPA), which is part of the 2010 Agreement. Thus, at a minimum, the court properly dismissed the first cause of action, which alleges breach of the CIPA.
Plaintiff contends that it should be allowed to litigate its breach of contract claim in New York because the CIPA chooses New York law. However, a choice of law clause is different from a choice of forum clause (see Boss v. American Express Fin. Advisors, Inc., 6 N.Y.3d 242, 811 N.Y.S.2d 620, 844 N.E.2d 1142 [2006] ).
Plaintiff also contends that the supplement's forum selection clause does not apply to its tort claims. This argument is unavailing (see e.g. Couvertier v. Concourse Rehabilitation & Nursing, Inc., 117 A.D.3d 772, 773, 985 N.Y.S.2d 683 [2d Dept.2014] ; Erie Ins. Co. of N.Y. v. AE Design, Inc., 104 A.D.3d 1319, 1320, 961 N.Y.S.2d 710 [4th Dept.2013], lv. denied 21 N.Y.3d 859, 2013 WL 3197665 [2013] ).
Since dismissal was proper based on the forum selection clause, we need not reach plaintiff's arguments regarding forum non conveniens (see Sydney, 74 A.D.3d at 477, 902 N.Y.S.2d 82 ; see also Lischinskaya, 56 A.D.3d at 123–124, 865 N.Y.S.2d 334 ).
Defendant's argument that plaintiff should be sanctioned for bringing a frivolous appeal is unavailing. Even though the 2012 supplement to the parties' 2010 agreement chose Israel as the forum, plaintiff's commencement of this action in New York was not frivolous (see Sydney, 74 A.D.3d at 476–477, 902 N.Y.S.2d 82 ).
In light of the foregoing we need not reach the other claims.