Opinion
10-04-2016
MADDEN INTERNATIONAL, LTD., Plaintiff–Respondent, v. LEW FOOTWEAR HOLDINGS PTY LTD., Defendant–Appellant.
Dontzin Nagy & Fleissig LLP, New York (Matthew S. Dontzin of counsel), for appellant. Hargraves, McConnell & Costigan, P.C., New York (Daniel A. Hargraves of counsel), for respondent.
Dontzin Nagy & Fleissig LLP, New York (Matthew S. Dontzin of counsel), for appellant.
Hargraves, McConnell & Costigan, P.C., New York (Daniel A. Hargraves of counsel), for respondent.
TOM, J.P., SWEENY, ANDRIAS, WEBBER, GESMER, JJ.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered January 15, 2016, which granted plaintiff's motion for a preliminary injunction, unanimously affirmed, without costs.
Notwithstanding that the parties' agreement contained a choice of law clause providing that the agreement “shall be governed by and construed in accordance” with New York contract law “without regard to conflict of laws provisions” and a forum selection clause providing that “any and all actions or proceedings arising out of or relating to” the agreement “shall be exclusively heard only in ... state or federal court” in certain counties in New York, defendant commenced an action against plaintiff in Australia. The Australian court denied plaintiff's ensuing motion to dismiss or stay the action.
Defendant argues that plaintiff's motion before Supreme Court to enjoin it from further prosecution of the proceeding pending in the Australian court should have been denied as contrary to principles of international comity. We find that the court exercised its discretion providently (see Morgenthau v. Avion Resources Ltd., 11 N.Y.3d 383, 390, 869 N.Y.S.2d 886, 898 N.E.2d 929 [2008] ), in light of New York's long-standing public policy of enforcing forum selection clauses in international agreements (see Brooke Group v. JCH Syndicate 488, 87 N.Y.2d 530, 534, 640 N.Y.S.2d 479, 663 N.E.2d 635 [1996] ; Banco Nacional De Mexico, S.A., Integrante Del Grupo Financiero Banamex v. Societe Generale, 34 A.D.3d 124, 130, 820 N.Y.S.2d 588 [1st Dept.2006] ).
Plaintiff also demonstrated a probability of success on the merits, danger of irreparable injury in the absence of an injunction, and a balance of equities in its favor (see Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840, 800 N.Y.S.2d 48, 833 N.E.2d 191 [2005] ).
We have considered defendant's remaining contentions and find them unavailing.