| Tourtellot v Harza Architects, Engrs. & Constr. Mgrs. |
| 2008 NY Slip Op 08055 [55 AD3d 1096] |
| October 23, 2008 |
| Appellate Division, Third Department |
| Richard Tourtellot, Plaintiff, v Harza Architects, Engineers andConstruction Managers et al., Defendants, and Daniel Woodhead Company et al., Defendants andThird-Party Plaintiffs-Appellants. Kenall Manufacturing Company, Third-PartyDefendant-Respondent. |
—[*1] Costello, Cooney & Fearon, P.L.L.C., Syracuse (Nicole Marlow-Jones of counsel), forthird-party defendant-respondent.
Carpinello, J. Appeal from an order of the Supreme Court (Reilly, Jr., J.), entered March 10, 2008in Schenectady County, which, among other things, granted third-party defendant's motion to dismissthe third-party complaint.[*2]
At all times relevant to this action, third-party defendant,Kenall Manufacturing Company, provided portable magnetic light fixtures to defendant DanielWoodhead Company and/or defendant Woodhead L.P. (hereafter collectively referred to asWoodhead) pursuant to a private label purchasing agreement. The agreement contained a warrantyclause pursuant to which Kenall warranted that all goods purchased would be free from defects and anindemnification clause whereby Kenall agreed to defend and indemnify Woodhead in the event one ofthese light fixtures caused personal injury to a third party. The agreement also contained the followingforum selection clause: "JURISDICTION: Venue over any dispute arising under or in connection withthis Purchase Order shall reside exclusively in the state and federal courts located in the Counties ofBoone and Cook, in the state of Illinois, and Purchaser and Seller consent to thepersonal jurisdiction of such courts."
After being struck in the head by one of Kenall's falling light fixtures, plaintiff commenced this actionagainst, among other entities, Woodhead sounding in negligence, strict products liability and breach ofwarranty. When Kenall refused to defend and indemnify Woodhead in plaintiff's action, Woodheadcommenced a third-party action against Kenall seeking contribution and/or common-law as well ascontractual indemnification based on allegations of negligence and breach of contract. Kenall thereaftersuccessfully moved to amend its answer to assert an affirmative defense based on the forum selectionclause and won dismissal of the third-party complaint based on this defense. Woodhead now appeals.
Woodhead argues that the forum selection clause in the agreement with Kenall "was never intendedto apply to third-party claims in personal injury and products liability actions such as . . .plaintiff's action here" and, therefore, Supreme Court erred in dismissing the complaint. We areunpersuaded. First, under its broad and unequivocal terms, the applicability of the subject forumselection clause does not turn on the type or nature of the dispute between them; rather, it applies to"any dispute arising under or in connection with" their agreement (see e.g. Roby v Corporation ofLloyd's, 996 F2d 1353, 1361 [1993], cert denied 510 US 945 [1993]; WMWMach., Inc. v Werkzeugmaschinenhandel GmbH IM Aufbau, 960 F Supp 734, 747 [1997]; Triple Z Postal Servs., Inc. v United ParcelServ., Inc., 13 Misc 3d 1241[A], 2006 NY Slip Op 52202[U], *6-9 [2006]). Moreover,and more importantly, there can be no dispute that the third-party action was prompted by Kenall'salleged breach of the agreement when it failed to defend and indemnify Woodhead in this action. Asdescribed in an affidavit of Woodhead's attorney, "[d]espite its contractual obligation to do so,Kenall refused to defend and indemnify Woodhead in this action. . . .Accordingly, on or about April 26, 2007, Woodhead commenced this third-party actionagainst Kenall" (emphasis added). Since the essence of Woodhead's third-party complaint is to seekenforcement of its contractual right to indemnification under the agreement (cf. Armco Inc. v NorthAtl. Ins. Co. Ltd., 68 F Supp 2d 330, 340 [1999]), the complaint does indeed concern a disputearising under or in connection with that agreement such that the forum selection clause is applicable and,once invoked by Kenall, should be enforced (see e.g. Roby v Corporation of Lloyd's, 996 F2dat 1361; Coastal Steel Corp. v Tilghman Wheelabrator Ltd., 709 F2d 190, 203 [1983],cert denied 464 US 938 [1983]; WMW Mach., Inc. v Werkzeugmaschinenhandel GmbHIM Aufbau, 960 F Supp at 747; Weingrad v Telepathy, Inc., 2005 WL 2990645, 2005US Dist LEXIS 26952 [SD NY 2005, Mukasey, J.]; Anselmo v Univision Sta. Group,Inc., 1993 WL 17173, 1993 US Dist LEXIS 428 [SD NY 1993, Carter, J.]; Triple ZPostal Servs., Inc. v United Parcel Serv., Inc., supra). In addition, Woodhead cannot circumventapplication of the forum selection clause by pleading parallel and/or additional related noncontractualclaims (see Roby v Corporation of Lloyd's, 996 [*3]F2d at1360-1361; Coastal Steel Corp. v Tilghman Wheelabrator Ltd., 709 F2d at 203;Weingrad v Telepathy, Inc., supra; Envirolite Enters., Inc. v Glastechnische Industrie PeterLisec Gesellschaft M.B.H., 53 BR 1007, 1009 [1985], affd 788 F2d 5 [1986]).
We have reviewed the cases heavily relied upon by Woodhead in support of its argument that thesubject forum selection clause is inapplicable to its third-party claims against Kenall (i.e. TwinlabCorp. v Paulson, 283 AD2d 570 [2001]; Fantis Foods v Standard Importing Co., 63AD2d 52 [1978], revd on other grounds 49 NY2d 317 [1980]; Hodom v Stearns, 32AD2d 234, 236 [1969], appeal dismissed 25 NY2d 722 [1969]; Armco, Inc. v North Atl.Ins. Co. Ltd., supra) and are unpersuaded that any case squarely controls the precise disputebefore this Court. We are further unpersuaded that Woodhead has demonstrated a compelling andcountervailing reason for excusing enforcement of this bargained-for forum selection clause (see Stravalle v Land Cargo, Inc., 39 AD3d735, 735-736 [2007]; Best CheeseCorp. v All-Ways Forwarding Int'l. Inc., 24 AD3d 580, 580-581 [2005]; see also TheBremen v Zapata Off-Shore Co., 407 US 1, 12 [1972]; Technology Express Inc. v FTF Bus.Sys. Corp., 2000 WL 222628, 2000 US Dist LEXIS 2006 [SD NY 2000, Kaplan, J.]; cf.3H Enters. v Bennett, 276 AD2d 965 [2000], lv denied 96 NY2d 710 [2001]).
Cardona, P.J., Rose, Kane and Kavanagh, JJ., concur. Ordered that the order is affirmed, withcosts.