| Hluch v Ski Windham Operating Corp. |
| 2011 NY Slip Op 05231 [85 AD3d 861] |
| June 14, 2011 |
| Appellate Division, Second Department |
| Mario Hluch, Appellant, v Ski Windham Operating Corp.et al., Respondents. |
—[*1] Carol A. Schrager, New York, N.Y. (Beth A. Willensky of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Lane, J.), entered April 8, 2010, which granted that branchof the motion of the defendant Ski Windham Operating Corp. which was for summary judgmentdismissing the complaint insofar as asserted against it based on a forum selection clause anddenied, as academic, his cross motion, in effect, pursuant to CPLR 3211 (b) to dismiss theaffirmative defense of release insofar as asserted by the defendant Ski Windham Operating Corp.
Ordered that the order is reversed, on the law, with costs, that branch of the motion of thedefendant Ski Windham Operating Corp. which was for summary judgment dismissing thecomplaint insofar as asserted against it based on a forum selection clause is denied, and thematter is remitted to the Supreme Court, Queens County, for further proceedings in accordanceherewith.
On or about October 2, 2007, the plaintiff signed an application for membership (hereinafterthe Application) with the U.S. Ski and Snowboard Association (hereinafter USSA) whichincluded an "Assumption of Risk and Release of Liability" agreement (hereinafter the Release).The Release included a forum selection clause providing that lawsuits for personal injury orrelated loss against USSA "must be maintained in state courts sitting in Summit County, Utah orfederal district courts sitting in the District of Utah, Central Division."
Allegedly, on February 3, 2008, the plaintiff was injured at a ski resort operated by thedefendant Ski Windham Operating Corp. (hereinafter Ski Windham) when he was struck by an"unmanned and unsecured" ski patrol sled which was "careening out of control." Thereafter, hecommenced this action against Ski Windham, among others, to recover damages for personalinjuries. In their answer, the defendants asserted various affirmative defenses, including release.
Ski Windham moved for summary judgment dismissing the complaint insofar as assertedagainst it based on the forum selection clause in the Release, and, in effect, based on theaffirmative defense of release. The plaintiff cross-moved, in effect, pursuant to CPLR 3211 (b) todismiss the affirmative defense of release insofar as asserted by Ski Windham. The SupremeCourt granted that branch of Ski Windham's motion which was for summary judgmentdismissing the complaint insofar as asserted against it based on the forum selection clause anddid not reach that [*2]branch of Ski Windham's motion whichwas, in effect, for summary judgment dismissing the complaint insofar as asserted against itbased on the affirmative defense of release. It denied the plaintiff's cross motion as academic. Wereverse, and remit the matter to the Supreme Court, Queens County, for further proceedings inaccordance herewith.
" '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, invalid dueto 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' " (Bernstein v Wysoki, 77AD3d 241, 248-249 [2010], quoting Stravalle v Land Cargo, Inc., 39 AD3d 735, 736 [2007]). " 'Absenta strong showing that it should be set aside, a forum selection agreement will control' "(Bernstein v Wysoki, 77 AD3d at 249, quoting Horton v Concerns of Police Survivors, Inc., 62 AD3d 836, 836[2009]; see Di Ruocco v Flamingo Beach Hotel & Casino, 163 AD2d 270, 272 [1990]).
"As a general rule, 'only parties in privity of contract may enforce terms of the contract suchas a forum selection clause found within the agreement' " (Bernstein v Wysoki, 77 AD3dat 251, quoting Freeford Ltd. vPendleton, 53 AD3d 32, 38 [2008]). "However, 'there are three sets of circumstancesunder which a nonparty may invoke a forum selection clause: First, it is well settled that an entityor individual that is a third-party beneficiary of the agreement may enforce a forum selectionclause found within the agreement. Second, parties to a "global transaction" who are notsignatories to a specific agreement within that transaction may nonetheless benefit from a forumselection clause contained in such agreement if the agreements are executed at the same time, bythe same parties or for the same purpose. Third, a nonparty that is "closely related" to one of thesignatories can enforce a forum selection clause. The relationship between the nonparty and thesignatory in such cases must be sufficiently close so that enforcement of the clause is foreseeableby virtue of the relationship between them' " (Bernstein v Wysoki, 77 AD3d at 251,quoting Freeford Ltd. v Pendleton, 53 AD3d at 38-39).
Here, Ski Windham was not a party to either the Release or the Application, and it failed toestablish, prima facie, that it could enforce the forum selection clause as a third-party beneficiaryor a party to a global transaction (see Bernstein v Wysoki, 77 AD3d at 251; seegenerally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Moreover, Ski Windham'smoving papers did not present evidence that the relationship between Ski Windham and USSAwas sufficiently close so that enforcement of the forum selection clause was foreseeable by virtueof the relationship between them (see Bernstein v Wysoki, 77 AD3d at 251-252). SkiWindham submitted a copy of the Application in support of its motion, and the Release set forththerein defines "USSA" as the "United States Ski & Snowboard Association, its subsidiaries,affiliates, officers, directors, volunteers, employees, coaches, contractors and representatives,local ski clubs, competition organizers and sponsors, and ski and snowboard facilityoperators" (emphasis added). The forum selection clause provides that it applies to "alllawsuits for personal injury or related loss against USSA." Thus, reading the aforementionedprovisions of the Release together establishes that the forum selection clause applies to personalinjury lawsuits against USSA's "ski and snowboard facility operators." However, Ski Windham isnot named as a USSA ski and snowboard facility operator anywhere in the Application, includingin the Release, and Ski Windham did not tender any evidence to show that it had a relationshipwith USSA such that it could be deemed a USSA "ski and snowboard facility operator[ ]" forpurposes of enforcing the forum selection clause (see generally Zuckerman v City of NewYork, 49 NY2d 557, 562-563 [1980]).
Under the foregoing circumstances, Ski Windham failed to make a prima facie showing thatit had a sufficiently close relationship with USSA such that its enforcement of the forumselection clause was foreseeable to the plaintiff by virtue of that relationship (see Bernstein vWysoki, 77 AD3d at 252). Accordingly, the Supreme Court should have denied that branchof Ski Windham's motion which was for summary judgment dismissing the complaint insofar asasserted against it based on the forum selection clause, without regard to the sufficiency of theplaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]).
Because the Supreme Court directed the dismissal of the complaint insofar as assertedagainst Ski Windham solely on the ground that the forum selection clause was enforceable by SkiWindham in this action, it did not reach that branch of Ski Windham's motion which was, ineffect, for summary judgment dismissing the complaint insofar as asserted against it based on the[*3]affirmative defense of release (see Llanos v Shell Oil Co., 55 AD3d796, 799 [2008]). That branch of Ski Windham's motion remains pending and undecided(id. at 799). In addition, in light of our determination, the plaintiff's cross motion, ineffect, pursuant to CPLR 3211 (b) to dismiss the affirmative defense of release insofar asasserted by Ski Windham is no longer academic. Accordingly, we remit the matter to theSupreme Court, Queens County, for a determination of the aforementioned pending andundecided branch of Ski Windham's motion and a determination on the merits of the plaintiff'scross motion.
In light of our determination, we need not reach the plaintiff's remaining contentions.Covello, J.P., Leventhal, Lott and Miller, JJ., concur. [Prior Case History: 27 Misc 3d1201(A), 2010 NY Slip Op 50509(U).]