Opinion
Index No. 107201/11
12-02-2011
SAYDA VILLON, Plaintiff, v. TOWN SPORT5 INTERNATIONAL LLC, TSI CLUB LLC, NEW YORK SPORTS CLUBS, LAWN GUARD INCORPORATED and BROADWAY-HAWTHORNE LLC, Defendants.
D, J.:
This action arises out of a personal injury matter brought by plaintiff, Sayda Villon, to recover damages for the alleged negligence of the defendants. Defendants Town Sports International, LLC, TSI Club LLC, and New York Sports Clubs (hereinafter "TSI") submit this motion to change the place of trial of this action from New York County to Westchester County, pursuant to CPLR §§ 501 and 511(b), in accordance with a written agreement, or alternatively, pursuant to CPLR §§ 501(3) and 511(a), for the convenience of material witnesses. Defendant Broadway-Hawthorne LLC, supports the motion to change the venue. Plaintiff opposes said motion on the grounds that change of venue is not mandated by the CPLR.
Plaintiff, Sayda Villon, alleged that on January 7, 2011, she was caused to fall in the parking lot adjacent to defendant TSI's premises, located at 24 Saw Mill River Road in Mt. Pleasant, New York. Plaintiff commenced this action in New York County, Supreme Court, the county of TSI's principal place of business, by the filing and service of a summons and complaint. Before the commencement of this action, plaintiff and TSI entered into a written health club membership agreement, dated September 2, 2009. The terms and conditions of the membership agreement between plaintiff and defendant TSI, contains the following clause:
4.5 Governing Law; Jurisdiction. These terms and conditions shall be governed in all respects by the substantive laws of the state in which the cause of action arises, without regard for conflict of law principles of such state. With respect to personal jurisdiction, you hereby irrevocably submit to personal jurisdiction in any action brought in any court, federal or state having subject matter jurisdiction arising under this contract within the location set forth below, and you hereby waive, to the fullest extent permitted by law, the defenses of lack of personal jurisdiction, inconvenient forum, and improper venue to the maintenance of any action You hereby waive your right to a trial by jury. State of Where Cause of Action Arises Venue/Jurisdiction
New York County of Westchester
Defendants contend that this clause in the agreement is a forum selection clause whereby venue should be changed to Westchester County in accordance with the written agreement. Forum selection clauses are prima facie valid (see Brooke Group v JCH Syndicate 488, 87 NY2d 530, 534 [1996]) and will not be set aside unless the party opposing the clause demonstrates that the enforcement of such " 'would be unreasonable and unjust or that the clause is invalid because of fraud or overreaching, such that a trial in the contractual forum would be so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of his or her day in court'" (Sterling Natl. Bank v Eastern Shipping Worldwide. Inc., 35 AD3d 222, 222 [2006], quoting British W. Indies Guar. Trust Co. v Banque Internationale A Luxembourg, 172 AD2d 234 [1991]).
Plaintiff argues that section 4.5 of the agreement is ambiguous and/or is not a forum selection clause at all, but is instead something akin to a permissive "service of suit clause," pursuant to which the plaintiff merely consents to jurisdiction. On its face, section 4.5 could be construed, that if plaintiff is sued by TSI, in Westchester County (regarding a matter arising out of the agreement), plaintiff will not raise improper venue as a defense to the action. This Court finds that the subject agreement does contain ambiguous language, susceptible of differing interpretations, and as such, must be construed against the drafter, TSI, and in favor of the plaintiff's selected forum, New York County (see 67 Wall Street Co. v Franklin National Bank, 37 NY2d 245 [1975]).
Additionally, the provision in dispute here is markedly different from that found in the Buhler case, which specifically provided that the venue of any dispute between the parties must be commenced in either the Village of Hancock, N.Y. Justice Court or the County or State Supreme Court in Delaware County (see Buhler v French Woods Festival of Reforming Arts. Inc., 154 AD2d 303, 304 [1st Dept 1989]). The present clause constrains no such mandatory language binding the parties to a particular forum, but provides only theat the plaintiff will submit to the jurisdiction of the State Supreme Court in Westchester County. The words and phrases used by the parties must, as in all cases involving contract interpretation, be given their plain meaning (Levine v Shell Oil Co., 28 NY2d 205, 211), and the plain meaning of the words used by the parties to this contract do not manifest an intention to limit jurisdiction to a particular forum.
TSI also contend that venue should be changed to Westchester County because the convenience of material witnesses and the ends of justice will be promoted by the change. It is undisputed that the plaintiff is a resident of Westchester County and that the site of the accident occurred in Westchester County. TCI also argues that witnesses to the alleged accident will also reside in Westchester County and therefore the most convenient forum for the material witnesses will be Westchester County.
A party seeking a discretionary change of venue based on CPLR § 510(3) must satisfy four requirements for proper entertainment of the application. First, the affidavit of the movant must list the names, addresses and occupations of the nonparty witnesses who are expected to be called. Second, the movant must disclose the facts to which such witnesses will testify so that the court may determine whether the testimony of the proposed witnesses is necessary and material. Third, the movant must demonstrate the witnesses are actually willing to testify. Fourth, the movant must show that the witnesses would actually be inconvenienced in the absence of a change of venue (O'Brien v. Vassar Brothers Hospital, 207 A.D.2d 169, 172-173 and 175 [2nd Dept., 1995]).
In the instant motion, defendants have failed to provide the names, addresses and occupations of any of the prospective witnesses. O Brien makes it clear that a party moving under CPLR § 510(3) must do more than assert the mere existential reality of material witnesses in the desired county.
Accordingly, it is
ORDERED that defendants' motion to change venue is denied; and it is further
ORDERED that counsel are directed to appear for a preliminary conference in Room 574, 111 Centre Street, on __ 2011, at __ AM.
ENTER:
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J.S.C.