| Tatko Stone Prods., Inc. v Davis-Giovinzazzo Constr. Co.,Inc. |
| 2009 NY Slip Op 06210 [65 AD3d 778] |
| August 13, 2009 |
| Appellate Division, Third Department |
| Tatko Stone Products, Inc., Appellant, v Davis-GiovinzazzoConstruction Company, Inc., et al., Defendants, and Great American Insurance Company,Respondent. |
—[*1] Neil B. Connelly, P.L.L.C., White Plains (Aaron A. Mitchell of counsel), forrespondent.
McCarthy, J. Appeal from an order of the Supreme Court (Krogmann, J.), entered May 22,2008 in Washington County, which granted a motion by defendant Great American InsuranceCompany to dismiss the complaint.
Defendant Great American Insurance Company issued a surety bond for masonry workperformed by defendant Davis-Giovinzazzo Construction Company, Inc. on a constructionproject located in New Jersey. Plaintiff contracted to supply material to Davis for the project andnow seeks payment under the surety bond for unpaid invoices. The bond, however, contains aforum selection clause which requires that any suit or action on it be brought in the state wherethe project was located, i.e., New Jersey. At issue is an order of Supreme Court granting amotion by Great American to dismiss the complaint on the ground of improper venue.[*2]
We note first that, having raised the issue of impropervenue as an affirmative defense in the answer, Great American did not waive the issue and couldthereafter rely upon this defense in seeking dismissal of the action (see Lischinskaya v Carnival Corp., 56AD3d 116, 118 [2008], lv denied 12 NY3d 716 [2009]). In addition, as GreatAmerican did not follow the precise statutory procedures outlined under CPLR 511 (seeCPLR 511 [a], [b]), the relief sought in its application became a discretionary matter (seeCallanan Indus. v Sovereign Constr. Co., 44 AD2d 292, 295 [1974]).[FN*]While Supreme Court may have erred in deciding the matter on subject matter jurisdictiongrounds (see Matter of Lucchese v Rotella, 97 AD2d 645, 646 [1983], affd 60NY2d 815 [1983]), we find that dismissal of the complaint was nevertheless warranted based onthe venue provision of the bond (see CPLR 501; see also Dogmoch Intl. Corp. vDresdner Bank, 304 AD2d 396, 397 [2003]; Premium Risk Group v Legion Ins. Co.,294 AD2d 345, 345-346 [2002]; B&H Interior Contr. v Yonkers Contr. Co., 234 AD2d44, 45 [1996]; Alwinseal, Inc. v Travelers Indem. Co., 61 AD2d 803, 803-804 [1978]).
"It is well established that forum selection clauses are valid absent a showing thatenforcement would be unreasonable and unjust or that the clause is invalid because of fraud oroverreaching" (VOR Assoc. v Ontario Aircraft Sales & Leasing, 198 AD2d 638, 639[1993] [citations omitted]; see Brooke Group v JCH Syndicate 488, 87 NY2d 530, 534[1996]; Harry Casper, Inc. v PinesAssoc., L.P., 53 AD3d 764, 764-765 [2008]). Here, in seeking to enforce the bond as athird-party beneficiary of it, plaintiff, in absence of any evidence of unreasonableness, fraud oroverreaching (compare 3H Enters. v Bennett, 276 AD2d 965, 966 [2000], lvdenied 96 NY2d 710 [2001]), is bound by its forum selection provision (see B & HInterior Contr. v Yonkers Contr. Co., 234 AD2d at 45; Buhler v French Woods Festivalof Performing Arts, 154 AD2d 303, 305 [1989]; Alwinseal, Inc. v Travelers Indem.Co., 61 AD2d at 803-804; Callanan Indus. v Sovereign Constr. Co., 44 AD2d at294; Khan Enter. Constr., Inc. v P & KContr., Inc., 13 Misc 3d 1207[A], 2009 NY Slip Op 51714[U] [2006]; Flush MetalPartition Corp. v Nuovo Corp., 57 Misc 2d 900, 901 [1968]; Frontier Excavating v St.Paul Fire & Mar. Ins. Co., 50 Misc 2d 232, 233 [1966]; see generally Harry Casper, Inc.v Pines Assoc., L.P., 53 AD3d at 765). As plaintiff has advanced unpersuasive grounds uponwhich this Court might disregard the forum selection provision in the bond, we affirm dismissalof the action (see e.g. Dogmoch Intl. Corp. v Dresdner Bank, 304 AD2d at 397;Premium Risk Group v Legion Ins. Co., 294 AD2d at 346; British W. Indies Guar.Trust Co. v Banque Internationale A Luxembourg, 172 AD2d 234 [1991]; Di Ruocco vFlamingo Beach Hotel & Casino, 163 AD2d 270, 271-272 [1990]).
Particularly unpersuasive is plaintiff's claim that dismissal is improper because GreatAmerican failed to demonstrate that the subject bond was "properly authenticated." While itwould have been preferable for Great American to include the entire, properly executed bondagreement in its moving papers, we are unpersuaded that this omission was fatal to the requestedrelief. First, there can be no real dispute that a valid and enforceable surety bond exists; indeed,plaintiff is relying upon it for relief in the first instance. More importantly, Great Americansubmitted an affidavit of a senior claims analyst who averred that the subject bond contained a"venue provision" which requires that this action be venued in New Jersey. The analyst attachedthe relevant excerpt from a copy of the bond to his affidavit. This evidence was sufficient forGreat American to establish the precise language of the subject forum selection clause.[*3]
Peters, J.P., Spain, Lahtinen and Kavanagh, JJ., concur.Ordered that the order is affirmed, with costs.
Footnote *: Great American moved todismiss the action on venue grounds 17 days after an improperly-entered default judgment wasvacated.