Preview
FILED: MONROE COUNTY CLERK 07/03/2023 08:34 AM INDEX NO. E2023005189
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/03/2023
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 3482584
Book Page CIVIL
Return To: No. Pages: 4
ARIEL BOUSKILA
80 Broad St Instrument: EXHIBIT(S)
Suite 3303
New York, NY 10004 Control #: 202307030215
Index #: E2023005189
Date: 07/03/2023
EBF HOLDINGS, LLC Time: 9:54:30 AM
US MARINE TRANSPORTATION LLC
JOHN, NAEB TEKESTE
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
202307030215 Index #
INDEX : E2023005189
NO. E2023005189
FILED: MONROE COUNTY CLERK 07/03/2023 08:34 AM
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/03/2023
LG Funding, LLC v Four Paws Orlando LLC
2017 NY Slip Op 32391(U)
November 9, 2017
Supreme Court, Nassau County
Docket Number: 606790/17
Judge: Thomas Feinman
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various state and
local government websites. These include the New York
State Unified Court System's E-Courts Service, and the
Bronx County Clerk's office.
This opinion is uncorrected and not selected for official
publication.
1]202307030215
[*FILED: NASSAU COUNTY CLERK 07/03/2023
MONROE 11/14/2017 08:34 AM IndexNO.
INDEX #: E2023005189
606790/2017
E2023005189
NYSCEF DOC. NO. 41
51 RECEIVED NYSCEF: 07/03/2023
11/15/2017
SHORT FORM ORDER
SUPREME COURT - ST ATE OF NEW YORK
COUNTY OF NASSAU
Present:
Hon. Thomas Feinman
Justice
TRIAL/IAS PART 6
LG FUNDING, LLC, NASSAU COUNTY
Plaintiff, INDEX NO. 606790117
- against - MOTION SUBMISSION
DATE: 9/28/17
FOUR PAWS ORLANDO LLC d/b/a MOTION SEQUENCE
FOUR PAWS ORLANDO and NO. I
JAMES PELLET a/k/a JAMES FRANCIS PELLET,
Defendants.
The following papers read on this motion:
Notice of Motion and Affidavits................................................. _x_
Memorandum of Law in Support of Motion............................... _x_
Affirmation in Opposition........................................................... _x_
Memorandum of Law in Support of Opposition......................... _x_
Reply Affirmation....................................................................... NIA
The defendants move for an order pursuant to CPLR §510(1) changing the venue of this
action to Kings County. The defendants submit a Memorandum of Law in support of its motion.
The plaintiff submits opposition, and a Memorand4m of Law in support of the opposition.
The plaintiff initiated this action sounding in breach of contract seeking damages and
attorneys fees. The defendants, by way of the instant motion, argue that the proper venue is Kings
County.
The subject contract contains the following forum selection clause:
"Any suit, action or proceeding arising hereunder, or the interpretation, performance
or breach hereof, shall, ifLG so elects, be instituted 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 jurisdiction or venue."
1 of 2
2]202307030215
[*FILED: NASSAU COUNTY CLERK 07/03/2023
MONROE 11/14/2017 08:34 AM IndexNO.
INDEX #: E2023005189
606790/2017
E2023005189
NYSCEF DOC. NO. 41
51 RECEIVED NYSCEF: 07/03/2023
11/15/2017
. It is well settled that forum selection provisions are prima facie valid. (Brooke Group v. JCH
Syndicate, 87 NY2d 530). In order to set aside a forum selection clause, a party must demonstrate
that:
"[E]nforcement would be unreasonable and unjust or that
the clause is invalid because of fraud or overreaching, such
that a trial in the forum set in the contract would be so
gravely difficult and inconvenient that the challenging party
would, for all practical purposes, be deprived of his or her
day in court." (Hunt v. Landers, 309 AD2d 900, quoting
Hirschman v. National Textbook Co., 184 AD2d 495; Koko
Contracting, Inc. v. Continental Environmental Asbestos
Removal Corp., 272 AD2d 585).
"Forum selection clauses are enforced because they provide certainty and predictability in
the resolution of disputes." (Brooke Group v. JCH Syndicate, 87 NY2d 530). When a forum
selection clause lacks specificity regarding any particular jurisdiction, and a defendant has no way
of knowing what state in the union they would be required to litigate, the forum selection clause has
not been enforced. (Sterling National Bank v. Til-Mar Design, Inc., Index No. 59981/2004,
Civ.Ct.NY, April 28, 2005). In Sterling National Bank, supra, the court stated that the forum
selection provision, was a "floating forum selection" clause which did not satisfy the purpose of
providing certainty and predictability to the parties. In Sterling National Bank, supra, the agreement
provided that the parties agreed to be sued not only in any state where the plaintiff had a principal
office, but also in any state where any future unidentified assignee of the agreement had a principal
office, and allowed the plaintiff, or a future assignee, to choose to sue in federal or state court. The
court further clarified that public policy dictates that the forum selection clause be "clear and
specific." (Id)
Here, the forum selection clause is clear and specific and designates New York courts. The
contract contains a forum selection clause which provides that any action proceeding under the
subject contract shall be brought in any court sitting in New York and the parties waived any
objections to venue. Forum selection clauses have been held to be valid and binding upon the
parties. (D. 0. T Tidedown & Lifting Equipment v. Wright, 272 AD2d 290; Koko Contracting, Inc.
v. Continental Environmental Asbestos Removal Corp., 272 AD2d 585). Such forum selection
clauses have been upheld in written agreements which a party expressly consents to the jurisdiction
of the New York courts. (Creative Resources, Inc. v. Rumbellow, 244 AD2d 383; Banco Do
Commercio E Industria v. Esusa Engenharia E. Construcoes, 173 AD2d 340).
Accordingly, as the forum selection clause is valid and binding upon the parties, this Court
has jurisdiction over the defendants, and venue is proper.
In light of the foregoing, the defendants' motion is denied.
/
ENTERED
NOV 1 4 2017
EN~yJC-
cou~~s4~~K,~SUNTY / J.S.C.
" OFF/Ce
Dated: November 9, 2017
l ORIGINAL
2 of 2
Preview
FILED: MONROE COUNTY CLERK 07/03/2023 08:34 AM INDEX NO. E2023005189 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/03/2023 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 3482584 Book Page CIVIL Return To: No. Pages: 4 ARIEL BOUSKILA 80 Broad St Instrument: EXHIBIT(S) Suite 3303 New York, NY 10004 Control #: 202307030215 Index #: E2023005189 Date: 07/03/2023 EBF HOLDINGS, LLC Time: 9:54:30 AM US MARINE TRANSPORTATION LLC JOHN, NAEB TEKESTE 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 202307030215 Index # INDEX : E2023005189 NO. E2023005189 FILED: MONROE COUNTY CLERK 07/03/2023 08:34 AM NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 07/03/2023 LG Funding, LLC v Four Paws Orlando LLC 2017 NY Slip Op 32391(U) November 9, 2017 Supreme Court, Nassau County Docket Number: 606790/17 Judge: Thomas Feinman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. 1]202307030215 [*FILED: NASSAU COUNTY CLERK 07/03/2023 MONROE 11/14/2017 08:34 AM IndexNO. INDEX #: E2023005189 606790/2017 E2023005189 NYSCEF DOC. NO. 41 51 RECEIVED NYSCEF: 07/03/2023 11/15/2017 SHORT FORM ORDER SUPREME COURT - ST ATE OF NEW YORK COUNTY OF NASSAU Present: Hon. Thomas Feinman Justice TRIAL/IAS PART 6 LG FUNDING, LLC, NASSAU COUNTY Plaintiff, INDEX NO. 606790117 - against - MOTION SUBMISSION DATE: 9/28/17 FOUR PAWS ORLANDO LLC d/b/a MOTION SEQUENCE FOUR PAWS ORLANDO and NO. I JAMES PELLET a/k/a JAMES FRANCIS PELLET, Defendants. The following papers read on this motion: Notice of Motion and Affidavits................................................. _x_ Memorandum of Law in Support of Motion............................... _x_ Affirmation in Opposition........................................................... _x_ Memorandum of Law in Support of Opposition......................... _x_ Reply Affirmation....................................................................... NIA The defendants move for an order pursuant to CPLR §510(1) changing the venue of this action to Kings County. The defendants submit a Memorandum of Law in support of its motion. The plaintiff submits opposition, and a Memorand4m of Law in support of the opposition. The plaintiff initiated this action sounding in breach of contract seeking damages and attorneys fees. The defendants, by way of the instant motion, argue that the proper venue is Kings County. The subject contract contains the following forum selection clause: "Any suit, action or proceeding arising hereunder, or the interpretation, performance or breach hereof, shall, ifLG so elects, be instituted 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 jurisdiction or venue." 1 of 2 2]202307030215 [*FILED: NASSAU COUNTY CLERK 07/03/2023 MONROE 11/14/2017 08:34 AM IndexNO. INDEX #: E2023005189 606790/2017 E2023005189 NYSCEF DOC. NO. 41 51 RECEIVED NYSCEF: 07/03/2023 11/15/2017 . It is well settled that forum selection provisions are prima facie valid. (Brooke Group v. JCH Syndicate, 87 NY2d 530). In order to set aside a forum selection clause, a party must demonstrate that: "[E]nforcement would be unreasonable and unjust or that the clause is invalid because of fraud or overreaching, such that a trial in the forum set in the contract would be so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of his or her day in court." (Hunt v. Landers, 309 AD2d 900, quoting Hirschman v. National Textbook Co., 184 AD2d 495; Koko Contracting, Inc. v. Continental Environmental Asbestos Removal Corp., 272 AD2d 585). "Forum selection clauses are enforced because they provide certainty and predictability in the resolution of disputes." (Brooke Group v. JCH Syndicate, 87 NY2d 530). When a forum selection clause lacks specificity regarding any particular jurisdiction, and a defendant has no way of knowing what state in the union they would be required to litigate, the forum selection clause has not been enforced. (Sterling National Bank v. Til-Mar Design, Inc., Index No. 59981/2004, Civ.Ct.NY, April 28, 2005). In Sterling National Bank, supra, the court stated that the forum selection provision, was a "floating forum selection" clause which did not satisfy the purpose of providing certainty and predictability to the parties. In Sterling National Bank, supra, the agreement provided that the parties agreed to be sued not only in any state where the plaintiff had a principal office, but also in any state where any future unidentified assignee of the agreement had a principal office, and allowed the plaintiff, or a future assignee, to choose to sue in federal or state court. The court further clarified that public policy dictates that the forum selection clause be "clear and specific." (Id) Here, the forum selection clause is clear and specific and designates New York courts. The contract contains a forum selection clause which provides that any action proceeding under the subject contract shall be brought in any court sitting in New York and the parties waived any objections to venue. Forum selection clauses have been held to be valid and binding upon the parties. (D. 0. T Tidedown & Lifting Equipment v. Wright, 272 AD2d 290; Koko Contracting, Inc. v. Continental Environmental Asbestos Removal Corp., 272 AD2d 585). Such forum selection clauses have been upheld in written agreements which a party expressly consents to the jurisdiction of the New York courts. (Creative Resources, Inc. v. Rumbellow, 244 AD2d 383; Banco Do Commercio E Industria v. Esusa Engenharia E. Construcoes, 173 AD2d 340). Accordingly, as the forum selection clause is valid and binding upon the parties, this Court has jurisdiction over the defendants, and venue is proper. In light of the foregoing, the defendants' motion is denied. / ENTERED NOV 1 4 2017 EN~yJC- cou~~s4~~K,~SUNTY / J.S.C. " OFF/Ce Dated: November 9, 2017 l ORIGINAL 2 of 2