| Orkal Indus., LLC v Array Connector Corp. |
| 2012 NY Slip Op 05401 [97 AD3d 555] |
| July 5, 2012 |
| Appellate Division, Second Department |
| Orkal Industries, LLC, Appellant, v Array ConnectorCorporation, Respondent. |
—[*1] Cohen Goldstein Silpe, LLP, New York, N.Y. (Glenn S. Goldstein of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals (1)from an order of the Supreme Court, Nassau County (Warshawsky, J.), dated November 30,2010, which, in effect, granted those branches of the defendant's motion which were for summaryjudgment dismissing the complaint, and (2), as limited by its brief, from so much of an order ofthe same court dated May 16, 2011, as, upon reargument, and upon vacating the determination inthe order dated November 30, 2010, in effect, granting those branches of the defendant's motionwhich were for summary judgment dismissing the first and second causes of action, andthereupon denying those branches of the motion, (a) severed the first and second causes of actionand, pursuant to CPLR 325 (d), removed those causes of action to the District Court, NassauCounty, and (b) adhered to its original determination granting those branches of the defendant'smotion which were, in effect, for summary judgment dismissing the third and fourth causes ofaction.
Ordered that the appeal from the order dated November 30, 2010, is dismissed, as that orderwas superseded by the order dated May 16, 2011, made upon reargument; and it is further,
Ordered that the order dated May 16, 2011, is reversed insofar as appealed from, on the law,the first and second causes of action are removed back to the Supreme Court, Nassau County,from the District Court, Nassau County, upon reargument, the determination in the order datedNovember 30, 2010, in effect, granting those branches of the defendant's motion which were forsummary judgment dismissing the third and fourth causes of action is vacated, and thosebranches of the motion are thereupon denied; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff, a limited liability company located in New York, purchased airplane-relatedproducts from the defendant, a corporation located in Florida, by transmitting purchase orders forthe products. The defendant confirmed the orders with "customer order acknowledgment" forms[*2]that contained a forum selection clause, purportedly placingany contractual disputes in a Florida court. Although the plaintiff never expressly objected to theforum selection clause, in February 2010, the plaintiff commenced this action against thedefendant in New York. The complaint alleged five causes of action seeking damages, inter alia,for unpaid commissions. As relevant here, the third and fourth causes of action were premised ontransactions to which the forum selection clause purportedly applied. The defendant moved,among other things, for summary judgment dismissing the complaint based upon the forumselection clause contained in its customer order acknowledgment forms. In an order datedNovember 30, 2010, the Supreme Court, in effect, granted those branches of the defendant'smotion which were for summary judgment dismissing the complaint. In an order dated May 16,2011, the Supreme Court, upon reargument, vacated the determination in the order datedNovember 30, 2010, in effect, granting those branches of the defendant's motion which were forsummary judgment dismissing the first and second causes of action, thereupon denied thosebranches of the motion, severed the first and second causes of action, and removed those causesof action to the District Court, Nassau County. Furthermore, upon reargument, the SupremeCourt adhered to its prior determination granting those branches of the defendant's motion whichwere, in effect, for summary judgment dismissing the third, fourth, and fifth causes of action. Theplaintiff appeals from both the order dated November 30, 2010, and so much of the order datedMay 16, 2011, as, upon reargument, severed the first and second causes of action, removed thosecauses of action to the District Court, and adhered to its prior determination granting thosebranches of the defendant's motion which were, in effect, for summary judgment dismissing thethird and fourth causes of action.
Pursuant to UCC 2-207 (2), additional terms of a contract between merchants become part ofthe parties' contract unless they are, inter alia, specifically objected to within a reasonable time,or unless the additional terms materially alter the contract. The party opposing the inclusion ofthe additional terms bears the burden of proving that the additional terms are material changesand, thus, are rendered nonbinding (see Coosemans Specialties, Inc. v Gargiulo, 485 F3d701, 708 [2007]).
Under the circumstances of this case, and given the distance between the New York andFlorida forums, the defendant's inclusion of a forum selection clause in its customer orderacknowledgment forms constitutes a material alteration to the parties' initial contracts (seePolymont Intl. v National Polystyrene Recycling Co., 256 AD2d 562 [1998]; PacamorBearings v Molon Motors & Coil, 102 AD2d 355, 358 [1984]; see also Hugo BossFashions v Sam's Eur. Tailoring, 293 AD2d 296 [2002]). Therefore, upon reargument, theSupreme Court should have denied those branches of the defendant's motion which were, ineffect, for summary judgment dismissing the third and fourth causes of action.
In contrast to the third and fourth causes of action, the first and second causes of actionpertained to purchase orders where forum selection was not an issue. The Supreme Court severedthose causes of action from this action, and removed them to the District Court, as the amount incontroversy did not exceed the $15,000 jurisdictional limit of the District Court. In light of ourdetermination that the third and fourth causes of action, each of which seeks damages in excessof the District Court's $15,000 jurisdictional limit, should not have been summarily dismissed,the first and second causes of action should be removed back to the Supreme Court, NassauCounty, for the judicial economy of litigating all of the parties' disputes in a single forum.
The defendant's remaining contentions either are without merit or have been renderedacademic by our determination. Skelos, J.P., Dillon, Eng and Austin, JJ., concur.