| Adler v 20/20 Cos. |
| 2011 NY Slip Op 01963 [82 AD3d 918] |
| March 15, 2011 |
| Appellate Division, Second Department |
| Marla Adler et al., Appellants-Respondents, and StephenBausenwein et al., Appellants, v 20/20 Companies et al., Defendants, and 20/20Communications, Inc., Respondent-Appellant. |
—[*1] Farrell Fritz, P.C., Uniondale, N.Y. (Domenique Camacho Moran and Steven N. Davi ofcounsel), for respondent-appellant.
In an action, inter alia, to recover damages for violation of Labor Law § 215, theplaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court,Suffolk County (Emerson, J.), dated January 5, 2010, as granted those branches of the motion ofthe defendant 20/20 Communications, Inc., pursuant to CPLR 3211 (a) (1) and (7) which were todismiss the amended complaint insofar as asserted against it by the plaintiffs Marla Adler, ErikMalagon, Ed Halpin, Mike Frost, and Kevin Kelly, and the defendant 20/20 Communications,Inc., cross-appeals from so much of the same order as denied those branches of its motion whichwere to dismiss the amended complaint insofar as asserted against it by the plaintiffs StephenBausenwein, Arthur Landsman, Al Deichler, Rich Herbst, Joe O'Brien, and Dan Watts.
Ordered that the appeal by the plaintiffs Stephen Bausenwein, Arthur Landsman, AlDeichler, Rich Herbst, Joe O'Brien, and Dan Watts is dismissed, as those plaintiffs are notaggrieved by the order appealed from (see CPLR 5511); and it is further,
Ordered that the order is affirmed, without costs or disbursements.
"Although once disfavored by the courts, it is now recognized that parties to a contract mayfreely select a forum which will resolve any disputes over the interpretation or performance ofthe contract" (Brooke Group v JCH Syndicate 488, 87 NY2d 530, 534 [1996]). "Such aforum selection clause is prima facie valid and enforceable 'unless it is shown by the challengingparty to be unreasonable, unjust, in contravention of public policy, invalid due to fraud oroverreaching, or it is shown that a trial in the selected forum would be so gravely difficult thatthe [*2]challenging party would, for all practical purposes, bedeprived of its day in court' (LSPA Enter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394,395 [2006]; see Harry Casper, Inc. vPines Assoc., L.P., 53 AD3d 764, 765 [2008]; Stravalle v Land Cargo, Inc., 39 AD3d 735 [2007]; Fleet Capital Leasing/Global Vendor Fin. vAngiuli Motors, Inc., 15 AD3d 535 [2005]). 'Absent a strong showing that it should beset aside, a forum selection agreement will control' (Di Ruocco v Flamingo Beach Hotel &Casino, 163 AD2d 270, 272 [1990])" (Horton v Concerns of Police Survivors, Inc., 62 AD3d 836, 836[2009]).
In support of its motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the amendedcomplaint insofar as asserted against it, the defendant 20/20 Communications, Inc. (hereinafter20/20), submitted copies of employment contracts physically signed by the plaintiffs MarlaAdler, Erik Malagon, Ed Halpin, Mike Frost, and Kevin Kelly, which contained a forumselection clause consenting to confer exclusive jurisdiction upon any federal or state courtlocated in Dallas or Tarrant county in the state of Texas over any action to enforce any provisionof, or based on a matter arising out of or in connection with, the agreement. In opposition thereto,the plaintiffs failed to make the necessary showing to set aside the forum selection clause (see Boss v American Express Fin.Advisors, Inc., 6 NY3d 242 [2006]; KMK Safety Consulting, LLC v Jeffrey M. Brown Assoc., Inc., 72AD3d 650 [2010]). Therefore, the amended complaint was properly dismissed insofar asasserted against 20/20 by Marla Adler, Erik Malagon, Ed Halpin, Mike Frost, and Kevin Kelly.
In support of those branches of the motion which were to dismiss the amended complaintinsofar as asserted against it by the plaintiffs Stephen Bausenwein, Arthur Landsman, AlDeichler, Rich Herbst, Joe O'Brien, and Dan Watts, 20/20 submitted copies of the employmentagreements containing the forum selection clause which purported to be electronically signed bythose plaintiffs. 20/20 is correct that an electronic signature "may be used by a person in lieu of asignature affixed by hand," and "shall have the same validity and effect as the use of a signatureaffixed by hand" (State Technology Law § 304 [2]). However, in this case, the plaintiffscame forward with evidence which raised a factual dispute as to whether those plaintiffs actuallyelectronically signed the employment agreements, or whether the agreements were electronicallysigned on their behalf by a representative of 20/20, without giving those plaintiffs an opportunityto review the agreements and assent to their terms, including the forum selection clause. Underthe circumstances, the documentary evidence submitted by 20/20 did not resolve all of the factualissues as a matter of law, and the motion to dismiss the amended complaint was properly deniedinsofar as asserted against 20/20 by the plaintiffs Stephen Bausenwein, Arthur Landsman, AlDeichler, Rich Herbst, Joe O'Brien, and Dan Watts (see Siddiqui v Nationwide Mut. Ins.Co., 255 AD2d 30 [1999]). Mastro, J.P., Chambers, Lott and Cohen, JJ., concur. [PriorCase History: 2010 NY Slip Op 30042(U).]