| KMK Safety Consulting, LLC v Jeffrey M. Brown Assoc.,Inc. |
| 2010 NY Slip Op 02927 [72 AD3d 650] |
| April 6, 2010 |
| Appellate Division, Second Department |
| KMK Safety Consulting, LLC, Appellant, v Jeffrey M.Brown Associates, Inc., et al., Respondents. |
—[*1] Rivelis, Pawa & Blum, LLP, New York, N.Y. (Howard Blum and Jonathan Samter ofcounsel), for respondents.
In an action, inter alia, to recover damages for breach of contract and unjust enrichment, theplaintiff appeals from an order of the Supreme Court, Richmond County (Maltese, J.), dated May4, 2009, which granted that branch of the defendants' motion which was pursuant to CPLR 3211(a) (1) to dismiss the complaint on the basis of a forum selection agreement.
Ordered that the order is affirmed, with costs.
On a motion pursuant to CPLR 3211 to dismiss a pleading, the factual allegations containedtherein will be presumed to be true and will be construed in the light most favorable to theopponent of the motion (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Moreover,where the motion to dismiss is founded upon documentary evidence under CPLR 3211 (a) (1),the movant will only be entitled to dismissal if the documentary evidence submitted"conclusively establishes a defense to the asserted claims as a matter of law" (Leon vMartinez, 84 NY2d at 88; see ArkerCos. v New York State Urban Dev. Corp., 47 AD3d 739, 740 [2008]).
In the present action, arising out of a contractual dispute and commenced in the SupremeCourt, Richmond County, the defendants produced a copy of the subject contract in support oftheir motion. That contract recited, inter alia, that the defendant Jeffrey M. Brown Associates,Inc., was a Pennsylvania corporation, and it further provided, in relevant part, that "[a]ny disputebetween the parties related to this Contract shall be determined by the Pennsylvania Court ofCommon Pleas, Philadelphia County." Contrary to the plaintiff's contention, the Supreme Courtproperly granted the defendants' motion to dismiss the complaint on the basis of documentaryevidence containing this unambiguous forum selection clause.
"A contractual forum selection clause is prima facie valid and enforceable unless it is shownby the challenging party to be unreasonable, unjust, in contravention of public policy, invaliddue to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravelydifficult that the challenging party would, for all practical purposes, be deprived of its day incourt" (LSPA Enter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394, 395 [2006]; see Boss v American Express Fin.Advisors, Inc., 6 NY3d 242, 246 [2006]; Brooke Group v JCH Syndicate 488,87 NY2d 530, 534 [1996]; Trump vDeutsche Bank Trust Co. Ams., 65 AD3d 1329, 1331 [2009]; W.J. Deutsch & Sons, Ltd. v CharbautAm., Inc., 57 AD3d 529 [2008]; Koob v IDS Fin. Servs., 213 AD2d 26, 33[1995]). The plaintiff's vague and conclusory assertions that the forum selection clause isunconscionable and unreasonable are inadequate to defeat the defendants' motion (see Tatko Stone Prods., Inc. vDavis-Giovinzazzo Constr. Co., Inc., 65 AD3d 778, 779 [2009]; Horton v Concerns of Police Survivors,Inc., 62 AD3d 836, 836-837 [2009]; Harry Casper, Inc. v Pines Assoc., L.P., 53 AD3d 764, 765 [2008];Stravalle v Land Cargo, Inc., 39AD3d 735, 736 [2007]; LSPA Enter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394,395 [2006]). Similarly, the plaintiff's contentions that its president did not read the contract andwas unaware of its terms prior to signing it are patently unavailing (see Gillman v ChaseManhattan Bank, 73 NY2d 1, 11 [1988]; British W. Indies Guar. Trust Co. v BanqueInternationale A Luxembourg, 172 AD2d 234 [1991]). Skelos, J.P., Santucci, Angiolillo andChambers, JJ., concur. [Prior Case History: 2009 NY Slip Op 31140(U).]