The following e-filed documents, listed by NYSCEF document number (Motion 002) 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 172, 173, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186 were read on this motion to/for REARGUMENT/RECONSIDERATION. DECISION & ORDER ON MOTION & X-MOT By order dated December 30, 2021, the court dismissed this action based on a forum selection clause and declined to reach the other proffered grounds for dismissal (Dkt. 150). Plaintiff moves for reargument and renewal, arguing there is no basis to dismiss the action “on the ground of forum non conveniens” (Dkt. 153 at 6). After apprising plaintiff of the reasons that they believe this motion is frivolous and requesting that it be withdrawn to avoid a sanctions request, defendants submitted opposition and cross-moved for sanctions for having to respond to a motion that fails to address the actual basis for dismissal and instead pointlessly takes issue with a ground for dismissal on which the court never opined. This motion should never have been made. The court did not dismiss the action on the ground of inconvenient forum. The court concluded that the action had to be brought in Switzerland based on a forum-selection clause. This motion therefore could not have provided plaintiff with any possible relief and “is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” (22 NYCRR 130-1.1[c][1]; see Intercontinental Credit Corp. Div. of Pan Am. Trade Dev. Corp. v. Roth, 78 NY2d 306, 308 [1991]). Plaintiff’s argument that dismissal based on a forum selection clause is pursuant to CPLR 327(a) rather than CPLR 3211(a)(1) is frivolous because it is contrary to settled law (Landmark Ventures, Inc. v. Birger, 147 AD3d 497 [1st Dept 2017] ["A contractual forum selection clause is documentary evidence that may provide a proper basis for dismissal pursuant to CPLR 3211(a)(1)"] [emphasis added]; see U.S. Merch., Inc. v. L & R Distributors, Inc., 122 AD3d 613, 614 [2d Dept 2014] [collecting cases]). Indeed, plaintiff admits it was aware of this authority (Dkt. 184 at 7 n 2). Plaintiff, however, cites two Appellate Division cases for the proposition that since the subject forum-selection clause was unclear the court’s holding that it applies was really based on CPLR 327 (see id. at 7). Those cases say no such thing (see Braspetro Oil Servs. Co. v. UK Guar. & Bonding Corp., 18 AD3d 291 [1st Dept 2005] [granting forum non dismissal after finding that forum selection clause does not apply]; 3H Enterprises v. Bennett, 276 AD2d 965, 966 [3d Dept 2000] [granting forum non dismissal after declining to enforce forum-selection clause]). Plaintiff has the law backwards — CPLR 327 analysis only applies if and when a forum-selection clause is held to be unenforceable (Prospect Funding Holdings L.L.C. v. Maslowski, 146 AD3d 535 [1st Dept 2017]; see Sebastian Holdings, Inc. v. Deutsche Bank AG, 78 AD3d 446, 447 [1st Dept 2010] ["the parties' choice of forum must be honored, and precludes a challenge on the basis of forum non conveniens as a matter of law"]). But where, as here, the forum-selection clause is held to be enforceable, forum-non analysis is inapposite since there is obviously no need to consider exercising discretion to dismiss under CPLR 327 once the court has determined that the action must be dismissed based on a forum-selection clause (see Islamic Republic of Iran v. Pahlavi, 62 NY2d 474, 478 [1984]). Thus, CPLR 327(b) does not apply and there is no need to reach the merits or timeliness of plaintiff’s remaining arguments regarding its applicability. If there was some reasonable basis for this motion then sanctions would not be issued. But plaintiff’s motion takes issue with a basis for dismissal the court never reached based on arguments refuted by settled authority of which it was aware, and his argument for ignoring that authority is based on an illogical proposition that has no basis whatsoever in the caselaw on which he relies. This CPLR 2221 motion further lacks merit because it principally relies on legal arguments and statutes that were never even mentioned in opposition to the motion to dismiss in the first place (for example, CPLR 327[b] and General Obligations Law §5-1402) despite every opportunity to have done so. No reasonable attorney should have thought this motion had any legal basis and defendants should not be forced to bear the costs of having to oppose it. Plaintiff shall therefore reimburse defendants for the reasonable costs and attorneys’ fees incurred in opposing this motion. Accordingly, it is ORDERED that plaintiff’s motion for reargument and renewal is DENIED, defendants’ cross-motion for sanctions is GRANTED, the parties shall promptly meet and confer to see if they can agree on the amount of defendants’ reasonable costs and attorneys’ fees incurred in opposing this motion and, if not, defendants shall e-file a fee application (invoices and an affirmation of reasonableness) by April 20, 2022, plaintiff may e-file objections by April 28, 2022, and defendants shall notify the court by email when their application is fully submitted. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION GRANTED DENIED GRANTED IN PART X OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER Dated: April 12, 2022
