| Movado Group, Inc. v Mozaffarian |
| 2012 NY Slip Op 00732 [92 AD3d 431] |
| February 2, 2012 |
| Appellate Division, First Department |
| Movado Group, Inc., Formerly Known as North American WatchCorporation, Appellant, v Shapur Mozaffarian et al.,Respondents. |
—[*1] Storch Amini & Munves PC, New York (Jason Levin of counsel), for respondents.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered November 24,2010, which denied plaintiff's motion for a default judgment against defendants, and granteddefendants' motion to dismiss the complaint for lack of personal jurisdiction, unanimouslyreversed, on the law, without costs, defendants' motion denied, and the matter remanded for adetermination of plaintiff's motion on the merits.
Defendants signed a credit agreement in which they expressly acknowledged receipt of, andagreed to be bound by, terms and conditions contained in an extrinsic document, whichdefendants neither read nor requested a copy to read. After the credit application was approved,defendants saw, for the first time, the terms and conditions, which contained a New York forumselection clause.
Plaintiff proved by a preponderance of the evidence (see Matter of Pickman Brokerage[Bevona], 184 AD2d 226, 226-227 [1992]), that the terms and conditions of the extrinsicdocument were incorporated into the credit agreement, and that defendants' acknowledged receiptand agreed to be bound by the same. The credit agreement, which identified the terms andconditions as those contained on each invoice, was sufficient to put defendants on notice thatthere was an additional document of legal import to the contract they were executing (seeShark Information Servs. Corp. v Crum & Forster Commercial Ins., 222 AD2d 251, 252[1995]; see also American Dredging Co. v Plaza Petroleum, Inc., 799 F Supp 1335, 1338[ED NY 1992], vacated in part on other grounds 845 F Supp 91 [ED NY 1993]).Defendants' decision not to inquire as to the terms and conditions is one by which they are bound(see Sorenson v Bridge CapitalCorp., 52 AD3d 265, 266 [2008], lv dismissed 12 NY3d 748 [2009]; see also Hotel 71 Mezz Lender LLC vFalor, 64 AD3d 430, 430 [2009] [a signer's duty to read and understand that which hesigns is not "diminished merely because ( )he was provided with only a (portion of thatdocument)]").
The parties' dispute is not, as found by the lower court, governed by UCC 2-207 (1)-(2) (b),which provides that, between merchants, where there is an "expression of acceptance or a writtenconfirmation . . . [even if it] states terms additional to or different from thoseoffered or agreed upon . . . [the additional or different terms] become part of thecontract unless . . . they materially alter it" (id.). Here, the forum selectionclause was not an "additional [*2]or different term" added to thecontract, nor was it a confirmatory writing; rather, it was one of the terms and conditionsincorporated by reference into the contract at its inception (see Guerra v Astoria Generating Co., L.P., 8 AD3d 617, 618[2004]). Neither of the issues generally decided pursuant to UCC 2-207 are at issue here (seee.g. K I C Chems., Inc. v ADCO Chem. Co., 1996 WL 122420, *4, 1996 US Dist LEXIS3244, *10 [SD NY 1996] ["a classic 'battle of the forms' "]; Hugo Boss Fashions v Sam's Eur.Tailoring, 293 AD2d 296, 297 [2002] [a written alteration to an oral agreement]).
We have considered the parties' remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Friedman, Catterson, Renwick and RomÁn, JJ. [PriorCase History: 2010 NY Slip Op 33270(U).]