Motion-Secondary: Capytal.Com v. Cover 3 Football, Inc. D/B/A COVER 3 FOUNDATION, Cover 3 Football, Cover 3 Foundation, The Cover 3 Foundation, Gregory Leon Thomas Scott

On August 04, 2023 a Motion-Secondary was filed involving a dispute between Capytal.Com, and Cover 3 Football, Cover 3 Football, Inc. D B A Cover 3 Foundation, Cover 3 Foundation, Gregory Leon Thomas Scott, The Cover 3 Foundation, for Other Matters - Contract - Other in the District Court of Monroe County.

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FILED: MONROE COUNTY CLERK 09/20/2023 11:16 AM INDEX NO. E2023008722
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 09/20/2023
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.

Receipt # 3574175

Book Page CIVIL

Return To: No. Pages: 18
ARIEL BOUSKILA
1545 US 202 Instrument: MEMO IN OPPOSITION
Suite 101
Pomona, NY 10970 Control #: 202309200934
Index #: E2023008722

Date: 09/20/2023

CAPYTAL.COM Time: 1:19:42 PM

COVER 3 FOOTBALL, INC.
COVER 3 FOOTBALL
COVER 3 FOUNDATION
THE COVER 3 FOUNDATION
THOMAS SCOTT, GREGORY LEON

Total Fees Paid: $0.00

Employee:

State of New York

MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.

JAMIE ROMEO

MONROE COUNTY CLERK

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
------------------------------------------------------------------------X
CAPYTAL.COM
Plaintiff,

-against- Index No. E2023008722

COVER 3 FOOTBALL, INC. D/B/A COVER 3
FOUNDATION ; COVER 3 FOOTBALL ; COVER 3
FOUNDATION ; THE COVER 3 FOUNDATION AND
GREGORY LEON THOMAS SCOTT,
Defendants.
------------------------------------------------------------------------X

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANTS’ MOTION TO CHANGE VENUE

Ariel Bouskila
Berkovitch and Bouskila, PLLC
Attorney for Plaintiff
1545 US-202,
Pomona, NY 10970
(212) 729-1477

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TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................ ii
PRELIMINARY STATEMENT .................................................................................................... 1
I. DEFENDANTS’ CHOICE OF COUNSEL DOES NOT RENDER THE FORUM
SELECTION CLAUSE UNJUST OR UNREASONABLE. ...................................................... 3
II. THE FORUM SELECTION CAUSE IS NOT VOID AS AGAINST PUBLIC POLICY. 8
CONCLUSION ............................................................................................................................. 14

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PRELIMINARY STATEMENT

Initially, the motion must be denied because it is not timely, and the Defendants have

waived the defenses they assert in their motion.

As the Defendants’ Motion to Change Venue (“Motion”) recognizes, the standard that

governs this Motion is straightforward:

A contractual forum selection clause is prima facie valid and
enforceable unless it is (1) shown by the challenging party to be
unreasonable, unjust, in contravention of public policy, or invalid
due to fraud or overreaching, or (2) 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.

¶ 11. First, it is important to note at the outset what Defendants are not arguing. Defendants do not

argue that a trial in Monroe County “would be so gravely difficult that [Defendants] would, for all

practical purposes, be deprived” of their day in Court. Nor do they argue that the parties’ forum

selection clause (the “FSC”) should be held unenforceable due to fraud or overreaching. Rather,

Defendants advance two primary arguments as to why this Court should reject decades of law and

refuse to enforce the unambiguous terms of the Agreement. First, and somewhat incredibly,

Defendants argue that the “forum selection clause is unreasonable and unjust” because

Defendants’ counsel lives in Forest Hills, New York, which is far from Monroe County, and thus

the Plaintiff, by choosing venue in Monroe County, “is prohibiting Dominick Dale, Esq’s access

to the courthouse” (id., ¶17). Second, Defendants argue that this Court need not respect the

legislature’s prescription in CPLR § 501 that agreements designating venue must be respected by

the courts because the Agreement here “does not address or fix venue” (id., ¶¶ 22).

To put it mildly, Defense counsel’s first argument is best construed as a non sequitur –

none of the cases cited by the Defendants offer any support for the proposition that a contractually

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agreed-upon forum selection clause should be held unenforceable because of the location of the

office of the attorney a defendant decides to hire, or the fact that that attorney may be a solo

practitioner. Rather, Defense counsel cites to CPLR § 510(3) and related caselaw – an irrelevant

provision of the CPLR that relates to arguments based on the convenience of material witnesses.

The Defendants’ second argument is equally half-baked. First, the statement that the FSC “does

not address or fix venue” is preposterous – the relevant provision, § 4.5, entitled “Binding Effect;

Governing Law, Venue and Jurisdiction” provides that the Plaintiff has the right to bring a suit

related to the Agreement “in any court sitting in New York,” and that Defendants “agree[d] that

the [all such forums] are convenient and . . . waive[d] any and all objections to jurisdiction or

venue.” NYSCEF DOC. 02 (emphasis added).

This is the crux of the matter before this Court, and the issue on which this Motion must

ultimately be decided: Defendants’ real argument is that regardless of what the plain language of

the FSC says, and regardless how clear the Defendants’ waiver of objection to venue is, this Court

should ignore it, and hold that all such forum selection clauses of the type in the parties’ Agreement

here are void and unenforceable as a matter of public policy, because they permit a party to bring

suit in any court in New York, without requiring that party to choose, at the outset, one county in

New York. The Defendants’ Motion does not go out of its way to make this position clear, or to

demonstrate how it is supported by the law, and that is for good reason: accepting Defendants’

argument would essentially run counter to decades of New York law that adheres to the principles

of freedom of contract generally and the enforceability of arms-length negotiated forum selection

clauses specifically. In support of their fringe position, Defendants merely cite – without

explanation or analysis – two recent trial court cases from 2017. But, as described in detail below,

the reasoning of those outlier cases has been roundly rejected by other trial courts that have

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considered provisions identical to the FSC and have enforced those forum selection clauses, citing

to a long history of cases that have done so in the past, including controlling appellate authority.

Put simply, the two cases cited by Defendants represent an aberration – there is simply no basis in

the statutory language, the caselaw, or policy considerations writ large, to hold that forum selection

clauses like the FSC are void as against public policy. In sum, for the reasons above and below,

Plaintiff respectfully submits that this Court should follow the long lineage of cases in this State

that demonstrate a deeply held respect for freedom of contract, one which has specifically guided

the New York court’s decisions on the enforceability of forum selection clauses, and deny the

Defendants’ Motion.

ARGUMENT

I. DEFENDANTS ARE APPLYING THE INCORRECT LAW
It is well settled that venue and forum may be selected by agreement between the parties.

See CPLR 501. Further, absent a finding of unconscionability, unreasonableness or a public policy

issue, courts will enforce these agreements. See Paramount Ins. Co. v Rosedale Gardens, Inc., 293

A.D.2d 235, 743 N.Y.S.2d 59, 2002 N.Y. App. Div. LEXIS 4342 (N.Y. App. Div. 1st Dep't 2002).

In the case at bar, it is clear that the agreements contained a venue provision that stated that all

disputes that be heard in the “federal and state courts located in the state of New York.” See the

agreement at 4.5.

CPLR §501 governs venue when the parties have a contractual forum-selection clause. It

provides that “[s]ubject to the provisions of subdivision two of section 510, written agreement

fixing place of trial, made before an action is commenced, shall be enforced upon a motion for

change of place of trial.” In turn, CPLR §510 governs grounds for change of place of trial and

provides: The court, upon motion, may change the place of trial of an action where: 1. the county

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designated for that purpose is not a proper county; or 2. there is reason to believe that an impartial

trial cannot be had in the proper county; or 3. the convenience of material witnesses and the ends

of justice will be promoted by the change.

Thus, by making the enforceability of a valid forum-selection clause subject to CPLR

§510(2) – but not CPLR §510(1) or (3) – CPLR §501 mandates that the general venue rules in

§503 are eliminated from consideration by a valid forum-selection clause. In other words, the plain

language of CPLR §501 and §510 demonstrates that the legislature intended that forum-selection

clauses could be cast aside only if there is reason to believe that an impartial trial could not be had,

and not when the designated forum is otherwise improper under §503. Thus, if a forum selection

clause is valid, the general venue-by-residence analysis under §503 is irrelevant.

In Concord Assets Finance Corp. v. Radebaugh, 172 A.D.2d 446, 448 (1st Dept.1991) the

court ruled that the defendant's contention that New York was an inconvenient forum was

misplaced, where he had consented to New York jurisdiction in forum selection clause. In In re

Jewish Ass’n for Services for Aged, 19 Misc.3d 1145(A); 867 N.Y.S.2d 17 (Sup. Ct. Queens Co.,

2008) (citations and quotation marks omitted) the court held that “It has been a longstanding New

York rule: [V]enue relates merely to place of trial and not jurisdiction[,] and ... improper venue

may be waived unless objection is properly and timely made ...”).

In New York, “[c]ontractual forum selection clauses are 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.” Premium Risk Group, Inc. v. Legion Ins Co., 294 A.D.2d 345; 741 N.Y.S.2d 563

(N.Y. App. 2d. 2002).

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Under New York law, forum selection clauses are mandatory where “the contractual

language ... provides unambiguously that any disputes are to be decided” in a specified forum.

Boss v. American Express Financial Advisors, Inc., 6 N.Y.3d 242; 844 N.E.2d 1142 (N.Y. 2006).

New York courts have “recognized that parties to a contract may freely select a forum which will

resolve any disputes over the interpretation or performance of the contract.” Brooke Group Ltd. v.

JCH Syndicate, 488, 87 N.Y.2d 530, 534; 663 N.E.2d 635 (N.Y. 1996). Thus, it is “well settled”

that “parties to an agreement may consent to submit to the jurisdiction of a court [that] would

otherwise not have personal jurisdiction over them.” CV Holdings, LLC v. Bernard Tech., Inc., 14

A.D.3d 854; 788 N.Y.S.2d 445 (N.Y. App. 3d, 2005) (citations omitted). It is also well-established

that a party who has “has agreed to submit to the jurisdiction of a court…is precluded from

attacking the court's jurisdiction on forum non conveniens grounds.” Sterling Nat'l Bank v. Eastern

Shipping Worldwide, Inc., 35 AD3d 222, 223 (1st Dept. 2006)

CPLR §501 also provides that a “written agreement fixing place of trial”—i.e., venue –

“made before an action is commenced, shall be enforced upon a motion for change of place of

trial.” And it’s well-established that, through a forum-selection clause, parties can designate a

county (or multiple counties) as the exclusive venue for litigation even if it would otherwise be

improper under CPLR §503. Indeed, New York’s intermediate appellate court (Third District) has

stated that if “the Legislature intended that the right to fix the place of trial [granted by CPLR 501]

be limited to a county where one of the parties resides or has a place of business, it would have so

stated.” Callanan Industries, Inc. v. Sovereign Const. Co., Ltd., 44 A.D.2d 292; 354 N.Y.S.2d 486

(N.Y. App 3d, 1974) (“Had the Legislature intended that the right to fix the place of trial be limited

to a county where one of the parties resides or has a place of business, it would have so stated.”).

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In the current instance the Agreements are clear, the parties selected the courts sitting in

the state of New York, including the supreme court in Monroe County. Defendants do not allege

that the venue provision is unconscionable or unreasonable, and further they do not claim that there

is any issue of public policy. Accordingly, even if Plaintiff is not located in Monroe County venue

is proper in Monroe if it so elects in accordance with CPLR 501.

II. DEFENDANTS’ CHOICE OF COUNSEL DOES NOT RENDER THE
FORUM SELECTION CLAUSE UNJUST OR UNREASONABLE.
Defendants’ first argument is essentially that a trial in Monroe County is inconvenient and

burdensome to Defendants’ counsel, and, as such, this Court should not enforce the FSC against

the Defendants. Of course, stated plainly in that fashion, the argument is facially ridiculous, so

Defendants’ counsel has attempted to dress it up with a flawed logic, which proceeds along these

lines: because (1) “[p]ursuant to CPLR 510(3), the court, upon motion, may change the place of

trial of an action where the convenience of material witnesses and the ends of justice will be

promoted by the change” (Motion at ¶ 12); and because (2) CPLR 510(3) motions have been

granted where, inter alia, important non-party solo-practitioner-attorney witnesses would be

greatly inconvenienced by the chosen forum (see id., ¶ 45); then it follows that (3) this Court

should grant the Motion because “[h]ere, Dominick Dale, Esq is faced with a similar circumstance.

However, Dominick Dale, Esq. is the defendant’s attorney and counsel; not a mere witness.” Id.,

¶ 16.

First, and critically, none of the cases cited by Defendants actually support the argument

advanced. For instance, Defendants cite Alpert v. Alpert for the proposition that “[i]t has been held

that the physical location of challenging party’s attorney was a factor to change venue.” Id., ¶ 15.

But Defendants’ counsel either failed to carefully read the decision or is misleading this Court –

while one of the parties did in fact argue in part that venue should be in a particular county because

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all of the attorneys in the action were located there, that was in no way part of the Court’s rationale

in deciding the case.1 Alpert is also additionally inapposite because it did not involve a contractual

forum selection clause. The other case cited by Defendants, Mid-Hudson Props., Inc. v. Klein, is

equally unavailing. First, Klein, like Alpert before it, is simply not applicable here, because it does

not involve a contractual forum selection clause. In any case, even taking Klein at face value, it

only highlights the deficiencies in Defendants’ argument. In Klein, the Court granted a motion to

change venue from New York County to Duchess County where the movant had made a detailed

evidentiary showing that at least six non-party witnesses – two of which were the solo-practitioner

attorneys that Defendants’ counsel likens himself to here – would be greatly inconvenienced

personally and professionally should they be required to travel to New York County. 2015 NY

Slip Op 32887(U), ¶¶ 3-5 (Sup. Ct. New York Cnty. 2015). Thus, where the movant had made

that detailed showing, and where “the subject property [was] located in Dutchess County, and the

Lease was negotiated and executed in, and allegedly breached, [in Duchess County and] all of the

witnesses in the action reside in Dutchess County, and all proof relative to the matter [was] located

in Dutchess County,” the Court concluded that the interests of justice would be served by

transferring the case. Id., ¶ 5. The Motion before this Court has, of course, made no such showing,

and the facts of Klein are otherwise far afield and, quite frankly, irrelevant here where a valid

forum selection clause is present in the parties’ Agreement.

Defendants are effectively trying to do by way of their attorney what they are not permitted

to do for themselves. It is indisputable – as even cases cited by Defendants’ Motion make clear –

1
Indeed, the point that “all of the attorneys involved in this matter are located in New York
County” is very clearly included in the Opinion’s Section C entitled “The Parties’ Positions,” and
does not feature at all in the concluding section entitled “The Ruling of the Court.” Alpert v. Alpert,
2011 NY Slip Op 31304(U), ¶ 5 (Sup. Ct. Nassau Cnty. 2011).

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that “the defendants themselves are not witnesses for the purpose of deciding a motion pursuant to

CPLR 510 (3)[.]” O'Brien v. Vassar Bros. Hosp., 173, 622 N.Y.S.2d 284, 287 (2nd Dept. 1995)

(cited in Motion, ¶¶ 13-14). Of course, Defendants make no attempt to explain why their attorney’s

alleged inconvenience should be given such great weight on a CPLR 510(3) motion, where

Defendants’ difficulties would be given none.2 That is, of course, because that position is logically

and legally indefensible.

III. THE FORUM SELECTION CAUSE IS NOT VOID AS AGAINST PUBLIC
POLICY
Like the Defendants’ first muddled argument, it is difficult to discern what, precisely, the

Motion is arguing renders the FSC void. At the outset, one can easily dispose of Defendants’

contention that “the provision in the MCA agreement addresses jurisdiction, not venue.”. Indeed,

this is not so much an argument as a bald-faced misrepresentation of the provision, which reads,

in relevant part

2
And, indeed, the Motion makes no attempt to advance an argument based on any alleged
inconvenience to the Defendants, which is, of course, because the Defendants have already agreed
via the FSC that the courts of this State are convenient, and, moreover, settled law holds that where
a party has so agreed, any arguments later advanced to the contrary are foreclosed See infra, Point
II. Similarly, Defendants’ counsel has offered no support for the proposition that inconvenience to
counsel in traveling to a chosen venue in the same state can suffice to demonstrate 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. Defendants have not done so because there is no support
for that proposition. Instead, Defendants’ counsel merely states summarily in the Preliminary
Statement of Facts, that ”The Plaintiff forfeits the right to designate venue to MONROE County
as the forum selection clause intrudes and interferes with Dominick Dale, Esq.’s ethical obligation
to zealously represent the Defendant. The forum selection clause fails to promote justice for the
Defendant.” NYSCEF Doc. 35, ¶ 6. Again, Defendants’ counsel offers no support in fact or law
for the contention that otherwise valid forum selection clauses may go unenforced because of such
bare assertions. Indeed, the bar is far higher. See, e.g., LG Funding, LLC v. Garber, 2018 NY Slip
Op 32067(U), ¶ 3 (Sup. Ct.) (“However, the agreement to use a forum anywhere in New York is
not necessarily unreasonable or overly burdensome where, as here, the defendant is an out-of-state
resident living in Montana. Even if plaintiff did actually file this action in Chautauqua County in
Mayville, New York [as opposed to Nassau County], the circumstances may not be that different.
Plaintiff will still need to travel a far distance from Montana to attend trial of the action.”).

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4.5 Governing law, Venue and Jurisdiction
This Agreement, Security Agreement and Guaranty. . . shall be
governed by and construed in accordance with the laws of the state
of New York, without regards to any applicable principals of
conflicts of law. Any suit, action or proceeding arising hereunder,
or the interpretation, performance or breach hereof, shall be
instituted exclusively in the Supreme Court of the State of New
York (the "Acceptable Forums") […]. Seller and Guarantor(s)
agree that the Acceptable Forums are convenient and submit to the
jurisdiction of the Acceptable Forums and waive any and all
objections to jurisdiction or venue.
NYSCEF DOC. 02, § 4.5 (emphasis added). As the explicit, unambiguous terms of the provision

make abundantly clear, the FSC, in no uncertain terms, “addresses…venue.”

To be clear, Defendants’ real argument – that on which the resolution of this Motion turns

– is that the FSC does not “fix venue.” NYSCEF Doc. 35, ¶22. Though it goes unstated,

Defendants are essentially arguing, contra decades of authority, that venue provisions like the FSC

do not satisfy CPLR § 501, which provides that a “written agreement fixing place of trial shall be

enforced upon a motion for change of place of trial.” In support of its argument that the FSC here

does not “fix venue” and that as such the Court need not enforce it, the Defendants cite only two

cases, Merchant Cash and Capital, LLC v. Laulainen, 48 N.Y.S.3d 889 (Sup. Ct., Nassau Cty.

Feb. 28, 2017) (“Laulainen”), and LG Funding, LLC v. Advanced Pharma CR, LLC, 58 Misc. 3d

231, 66 N.Y.S.3d 103 (N.Y. Sup. Ct. Nov. 27, 2017) (“Advanced Pharma”), which explicitly

relied on Laulainen. In the wake of those two 2017 decisions, several different trial courts faced

the same arguments made in those cases and had the opportunity to weigh in on the issue now

before this Court. Helpfully, roughly ten months after Advanced Pharma, Judge Brown in Nassau

County, confronting “the exact clause at issue” in Advanced Pharma, conducted a survey of that

decision and the other related cases decided after it, which dealt with materially identical forum

selection clauses. LG Funding, LLC v. Garber, 2018 NY Slip Op 32067(U) (Sup. Ct. Nassau Cnty.

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August 20, 2018) (“Garber”). It is worth quoting at length for its cogent analysis and its relevance

here, as the forum selection clauses at issue in Garber and those cases discussed therein are

materially identical to that before this Court. As Judge Brown observed (emphasis added

throughout),

In LG Funding, LLC v. Advanced Pharma CR, LLC, [ ] the exact clause at issue
here was examined by Justice Steinman. Justice Steinman held the forum selection
clause invalid, reasoning that if it were enforced, the plaintiff would be able to bring
the action anywhere within New York State, with some courts over 440 miles away
from others. Justice Steinman further explained that "an intent to deviate from the
statutory protections contained in CPLR 503 should be set forth clearly and
unambiguously." As to the agreement to waive venue objections, Justice Steinman
found that "[s]uch a waiver, by itself, cannot be enforceable unless the parties
agreed to a selected county in which to venue an action in the first instance." . . .
In another relevant case, LG Funding v. Four Paws Orlando LLC,[3] the court
again examined the same clause from the same form contract. In Four Paws, Justice
Feinman reached a different result. His decision cites Sterling National
Bank,2 which holds that the "floating forum selection" clause was invalid as it
lacked specificity by overextending venue to any state chosen by future unidentified
assignees. Justice Feinman distinguished the instant clause as it clearly and
specifically designates New York courts as the place of trial. Further, Justice
Feinman explained that since forum selection clauses are presumed valid, and the
forum selection clause at hand is not unreasonable, unjust, fraudulent,
overreaching, or depriving the defendant of his day in court, there is no reason to
decline enforcement of the clause as it was written, agreed to, and finalized. This
court agrees with the reasoning advanced by Justice Feinman on this point.
Likewise, in Merchant Cash and Capital LLC v. Portland Wholesale Jewelry,
LLC, 2017 N.Y. Slip Op. 31651[U], 2017 WL 3442563 [Sup. Ct. Nassau Cty.
2017], Justice McCormack, analyzing a similar agreement with a provision
waiving any claim that venue is improper found such agreement fully
enforceable. Justice McCormack . . . distinguished Laulainen, noting the
absence of a waiver of objection to venue in that case.
Indeed, it is a generally accepted rule in contract law that contracting parties are
afforded expansive freedom to contract. . . . Here, a plain reading of the forum
selection clause clearly illustrates the parties' intention to preselect possible
venues for trial and to waive any objection which may have been otherwise

3
LG Funding, LLC v. Four Paws Orlando LLC, 2017 NY Slip Op 32391(U), ¶ 2 (Sup. Ct. Nassau
Cnty. Nov. 9, 2017).

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raised. Courts should not interfere with the negotiation process and the subsequent
agreements unless unreasonable or fraudulent, which would make the contract void
or voidable. Defendant in this action signed a contract agreeing that any county
in New York is a proper venue to adjudicate all matters related to the contract
at hand. To allow defendant to change venue to Kings County, we would be
virtually and unjustifiably rewriting the contract.

Id., ¶¶ 3-5 (emphasis added); see also Merch. Cash & Capital, LLC v. Beachside Home Care, LLC,

2017 NY Slip Op 31817(U), ¶ 2 (Sup. Ct. Suffolk Cnty. Aug. 15, 2017) (enforcing materially

identical venue provision, holding that “the words and phrases used by the parties must, as in all

cases involving contract interpretation, be given their plain meaning. Here, the parties clearly

agreed to New York as the forum for their disputes, and they clearly waived any objections to

venue. Accordingly, the application for a change of venue is denied”); Bizfund LLC v. Holland &

Sliger Steel, LLC, 2021 NY Slip Op 50504(U), ¶ 5, 71 Misc. 3d 1226(A), 146 N.Y.S.3d 465 (Sup.

Ct. Kings Cnty. 2021) (enforcing materially identical forum selection clause and rejecting personal

jurisdiction and forum non conveniens arguments made by out-of-state corporation and individual

guarantor). Here, just as in Garber, “[t]he immediate issues before this court are (1) whether a

broad forum selection clause, which designates any court in a state, is valid and enforceable and

(2) whether the clause waiving any objection as to venue should be given effect.” Garber, ¶ 2.

There the Court held, on the compelling reasoning evident above, that “[i]t is the opinion of this

court that the forum selection clause is valid under either evaluation.” Id. Plaintiff respectfully

submits that this Court should so hold.

To be clear, rejecting Laulainen/Advanced Pharma and following Garber is in line with a

half century – at the least – of law in this state. Similar forum selection clauses have been enforced,

countless times, in far more compelling circumstances than that before this Court, where the

Defendants’ counsel has merely complained that litigating in Monroe County would be

inconvenient for him. Take, for example, the 1976 decision in Arthur Young & Co. v Leon, where

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the 1st Department reversed a lower court's order dismissing plaintiff's complaint on grounds of

forum non conveniens. In that case the defendant was a Hawaii resident; the underlying dispute

arose in Hawaii; the relevant records were in Hawaii, none of the witnesses resided in New York;

and the plaintiff, though doing business in New York, also had an office in Hawaii. While these

facts would have mattered in a forum non conveniens analysis, the 1st Department enforced the

forum selection clause in the parties’ agreement, which entitled the plaintiff to litigate disputes

arising thereunder “in the Federal or state courts located in the County and State of New York.”

In so doing, the 1st Department noted that

It seems that the comparative weight of all the factors involved
herein [including the venue provision, which the 1st Department
noted must be “a substantial factor or it would not have been
incorporated in the articles sued on”] was not adequately considered
at Special Term, which regarded little more than convenience of
witnesses and parties as of importance. All of these factors doubtless
were -- or should have been -- considered by the parties in arriving
at their agreement upon a forum. In short, by their own exercise of
discretion in agreeing upon a forum, the parties themselves obviated
considerations of inconvenience to a party or a witness . . . And
contracts are made to be enforced".

Id., 383 N.Y.S.2d 618, 619 (1st Dept 1976) (emphasis added).4 To be clear, the FSC at issue here

is materially equivalent to the one enforced by the 1st Department, i.e., the FSC permits the Plaintiff

4
For another example of the respect and weight that contractually agreed upon forum selection
clauses are given by New York courts, consider, Ideal Mut. Ins. Co. v Elkhorn ReInsurance Co,
where the court enforced a forum selection clause requiring litigation of disputes in the United
States, rather than England, even where “the documents relevant to the case were located in
England, the dispute arose there, and there remained a question as to whether New York
jurisdiction would be available over all the members of the defendant reinsurance syndicate.”
Rokeby-Johnson v. Ky. Agric. Energy Corp., 489 N.Y.S.2d 69, 75 (1st Dept. 1985) (discussing
Ideal Mut.); see also Horton v. Concerns of Police Survivors, 878 N.Y.S.2d 793, 794 (2nd Dept.
2009) (in which the Second Department enforced a forum selection clause requiring suit be
brought in Missouri and dismissed an action brought by New York resident plaintiff who had
brought suit in Dutchess County, noting that “[a]lthough the plaintiff averred that she is a single
mother who resides with her teenaged daughter in Dutchess County, New York, this claim was
12

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to bring suit in any court situated in the State of New York, just as the provision at issue Arthur

Young & Co.

As the foregoing has hopefully made clear, the issue before this Court is straightforward:

either this Court hews to the approach highlighted by Arthur Young & Co. and countless cases

since, including most recently Garber and like decisions, and denies Defendants’ Motion, or this

Court holds that the FSC here is unenforceable, undercutting a half century of New York law on

forum selection clauses.5 Plaintiff respectfully submits that this Court should reject Defendants’

invitation to do the latter.6 There is no basis in the statutory language, or the decades of precedent

construing it and the relevant law on the enforceability of forum selection clauses, to now impose,

as Advanced Pharma has done, a novel requirement, namely, that for a forum selection clause

which contains an explicit waiver of objection to venue to be enforceable, the Agreement must

designate a particular county in New York as the venue. Simply put, if the legislature desired that

to be a requirement of CPLR § 501, it could have – and can still – say so. But absent that explicit

insufficient, standing alone, to demonstrate that enforcement of the forum selection clause would
be unjust.”).
5
Indeed, it is telling that, for instance, Advanced Pharma cited only to Laulainen for its decision,
whereas those recent decisions discussed above which rejected Advanced Pharma and Laulainen
were able to cite a multitude of cases going back decades that have upheld the right of parties to
freely contract and enforced forum selection clauses as written.
6
Indeed, this Court is arguably obligated to do so. As the Second Department has noted, "[t]he
Appellate Division is a single State-wide court divided into departments for administrative
convenience …, and, therefore, the doctrine of stare decisis requires trial courts in this department
to follow precedents set by the Appellate Division of another department until the Court of Appeals
or this court pronounces a contrary rule." Mountain View Coach Lines, Inc. v. Storms, 476
N.Y.S.2d 918, 919-20 (2nd Dept. 1984). The effect of this rule here is this: this Court must deny
Defendants’ Motion unless Defendants can find authority in the Court of Appeals or the Appellate
Division Fourth Department which holds, contra to Arthur Young & Co., that a forum selection
clause like the FSC – where a party has agreed that any court in New York is convenient to it and
waived all objections to venue – is unenforceable.

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instruction, and in the face of decades of precedent on which parties have relied in setting their

expectations when drafting and negotiating contracts, decisions like that in Advanced Pharma are,

at bottom, exercises in legislating from the bench. In sum, “contacts are made to be enforced,” and

this Court should enforce the plain terms of the parties’ Agreement as written, and deny the

Defendants’ Motion in its entirety.

In fact, Mr. Dale is aware of the fact that the subject agreement contains a valid forum

selection provision, and has in fact, in a separate matter, consented to venue where it was

convenient for him. See Exhibit G. It is evident, that Mr. Dale only presents this issue as a tactic

to delay the proceedings and allow his clients to remain in breach of their contractual obligations,

a method that this Court should not condone.

Moreover, Mr. Dale’s reliance on a footnote from a decision in Eagle Eye Advance v Hi

Point et al. is seriously misleading, and is at best an oversight on his part, and at worst, a willful

attempt to hoodwink a court in doing his bidding. In Eagle Eye Judge Odorisi held that where the

forum selection provision specifically selected four counties, and NOT Monroe County, the

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