The following papers have been read on this motion: Notice of Motion and Supporting Papers X Memorandum of Law in Opposition X Upon the foregoing e-filed papers, the motion filed by the Defendants, SKY AIRPARTS INTERNATIONAL INC. D/B/A SKY AIRPARTS INTERNATIONAL and NORMAN CHANCE [collectively, "Defendants"], for an Order pursuant to CPLR §510[1], changing the venue of this action from Monroe County to Nassau County, on the ground that Monroe County is an improper county and Nassau County is a proper county and the parties’ contract did not fix venue, is determined as set forth below: On November 10, 2022, the Plaintiff, ROYAL BUSINESS GROUP, LLC ["Plaintiff"], commenced this breach of contract action in Monroe County. The Defendants served a demand to change venue pursuant to CPLR §511[b], which was not challenged by the Plaintiff. Thereafter, on May 5, 2023, the Defendant filed a Summons with Notice in Nassau County, indicating that the purpose of the filing was to move for an order pursuant to CPLR §§503, 510, 511[a] and [b] to change the place of trial from Monroe County to Nassau County. The Defendants argue that Nassau County is the only proper venue for this case to be heard because Plaintiff resides in L., Nassau County, and the Defendants reside in Alaska. Under CPLR §503[a], “[e]xcept where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced…”. The Plaintiff argues that the parties’ underlying Future Receivables Sale and Purchase Agreement [the "Agreement"], provides for the venue to be “in any court sitting in New York State” and that therefore Monroe County is a proper venue. CPLR §501, entitled “Contractual provisions fixing venue”, provides that, “[s]ubject to the provisions of [CPLR §510(2)] and [CPLR §514(2)], written agreement fixing place of trial, made before an action is commenced, shall be enforced upon a motion for change of place of trial. The parties’ underly Agreement provides as follows: “Any lawsuit, action or proceeding arising out of or in connection with this Agreement shall be instituted exclusively in any court sitting in New York State, (the “Acceptable Forums”). The parties agree that the Acceptable Forums are convenient, and submit to the jurisdiction of the Acceptable Forums and waive any and all objections to inconvenience of the jurisdiction or venue. Should a proceeding be initiated in any other forum, each of the parties to this Agreement irrevocably waives any right to oppose any motion or application made by any other party to transfer such proceeding to an Acceptable Forum. [Merchant] and its Guarantor(s) acknowledge and agree that the Purchase Price is being paid and received by [Merchant] in New York, that the Specified Percentage of the Future Receipts are being delivered to [Plaintiff] in New York, and that the transaction contemplated in this Agreement was negotiated, and is being carried out, in New York. [Merchant] and its Guarantor(s) acknowledge and agree that New York has a reasonable relationship to this transaction.” The Court further notes that CPLR §509 provides that, “[n]otwithstanding any provision of this article, the place of trial of an action shall be in the county designated by the Plaintiff, unless the place of trial is changed to another county by order upon motion, or by consent as provided in [CPLR §511]“. (CPLR §509; emphasis supplied]. Notably, in this case, the Plaintiff selected Monroe County as the venue, and it is Defendants who oppose Plaintiff’s selection, even though they reside in Alaska and will be required to travel a far distance no matter which county in New York State is used as the place to try the case. The Defendants argue that the above clause from the parties’ Agreement does not remove this dispute from CPLR §503[a], because the subject clause does not specify a county in which the case is to be tried. Contrary to the Defendants’ argument otherwise, the Court finds that the above-quoted language from the Agreement is a forum selection clause, such that if it is valid and enforceable, it shall apply not withstanding CPLR §503′s requirement that venue align with the County in which the Plaintiff resided when the action was commenced. “‘A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court’”. (Bernstein v. Wysoki, 77 AD3d 241, 248-49 [2d Dept 2010][citations omitted]). In this case, the Court is not persuaded by any of the arguments asserted by the Defendants in challenging the subject forum selection clause. Counsel for the Defendants seems to suggest that his clients should not be held to the terms of the Agreement, because they might not have fully reviewed all of the provisions in the parties’ Agreement or hired legal counsel to review same. However, the Court has not been presented with any evidence indicating that the Defendants are not sophisticated business people and, in any event, a party does not avoid the consequences of entering into a contract by simply arguing after the fact that they were not familiar with or did not understand its terms. Likewise, counsel for the Defendants also argues that it would be “gruesomely inconvenient” for him if the case is tried in Monroe County. However, counsel then indicates that he does not even personally appear on his cases where the venue is in Nassau County. Therefore, counsel’s argument about the inconvenience of Monroe County strikes this Court as disingenuous. Likewise, counsel for the Defendants also points out that Plaintiff’s counsel also works in Nassau County. Therefore, it will presumably be just as inconvenient for Plaintiff’s counsel to travel to court in Monroe County as it will be for Defendants’ counsel. Given the plain meaning of the language contained in the parties’ forum selection clause, and the strong public policy in affording parties the freedom to contract as they wish1, the Court finds that the parties’ forum selection clause is valid and enforceable, and that pursuant thereto the Plaintiff was permitted to select any New York State county to be the venue for trial. (See Bernstein v. Wysoki, 77 AD3d 241, 248-49 [2d Dept 2010]). Therefore, the Defendants’ motion to change venue shall be DENIED, and this case shall be DISMISSED, in light of the previously commenced action that is already pending in Monroe County. Accordingly, it is hereby ORDERED, that the Defendants’ motion to change the venue of this action from Monroe County to Nassau County is hereby DENIED in its entirety; and it is further, ORDERED, that this action that is presently pending in Nassau County under index number 607213/2023 is hereby DISMISSED in light of the action that is pending in Monroe County; and it is further, ORDERED, that the all other requests for relief not specifically addressed herein shall be deemed DENIED. This constitutes the decision and Order of this Court. Dated: January 29, 2024
