The following papers have been read on this motion:
Defendants Notice of Motion and Supporting Papers 1
Plaintiffs Affirmation in Opposition 2
Defendants Reply Affirmation Opposition 3
Upon the foregoing papers, it is ordered that the defendants motion pursuant to CPLR § 3211(a)(1) and CPLR § 3211(a)(7) dismissing the plaintiffs complaint is determined as hereinafter set forth.
The plaintiff commenced this action by way of summons and complaint filed on October 25, 2021. The defendants motion to dismiss is filed in lieu of an answer.
The plaintiff alleges that the defendant is wrongfully withholding the plaintiffs money, in that the plaintiff purchased tickets from the defendant to the 2020 Tokyo Olympics for $38,700.00, the tickets became worthless once the Olympics were postponed and spectators were not permitted at the postponed event due to the COVID-19 public health crises, and the defendant is refusing to reimburse the plaintiff more than $3,788.09 for the tickets. The plaintiff further alleges that, instead of reimbursing the plaintiff their monies, the defendant manipulated the plaintiff into entering a new agreement that would release the defendant from its obligation to reimburse the plaintiff.
The defendant argues that dismissal is warranted pursuant to CPLR §§ 3211(a)(1) and (a)(7) and pursuant to CPLR § 501 based on the parties’ forum selection clause contained within the parties’ March 26, 2021, Recovery Agreement, which states that venue shall exclusively lie in Harris County, Texas, and that the Agreement and Global Release shall be enforceable in accordance with Texas law. The plaintiff argues that the forum selection clause is narrow and does not apply to this dispute.
Plaintiff argues that the Court should disregard the supporting affidavit of the defendants representative, Phillipe Tanguy, and exhibits appended thereto, for the failure to comply with CPLR § 2309(c) [“oaths and affirmations taken without state”]. However, the absence of a certificate of conformity, as required by the CPLR, is a “mere irregularity, and not a fatal defect”. (Matapos Tech Ltd. v. Compania Andina de Comercio Ltda, 68 AD3d 672, 673 [1st Dept 2009]; see also Bank of New York Mellon v. Vytalingam, 144 AD3d 1070, 1071 [2d Dept 2016]).
“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.” (Lifetime Brands, Inc. v. Garden Ridge, L.P., 105 AD3d 1011, 1012 [2d Dept 2013]).
The plaintiff argues that the subject forum selection clause, if applicable to the subject dispute, is invalid because it is included in an agreement that is void ab initio as a product of fraud and misrepresentation. However, the Court finds that the allegations of fraud set forth in the Complaint are insufficient to render the subject forum selection clause unenforceable. (Creative Mobile Techs, LLC v. Smart Modular Techs., Inc., 97 AD3d 626, 626 [2d Dept 2012]; Somerset Fine Home Bldg., Inc. v. Simplex Indus., Inc., 185 AD3d 752, 753 [2d Dept 2020]). The plaintiff does not provide any proof that the subject forum selection clause is unreasonable, unjust, in contravention of public policy, or that a trial in the selected forum would be so gravely difficult that the plaintiff would, for all practical purposes, be deprived of its day in court. (Lifetime Brands, Inc., 105 AD3d at 1012).
Additionally, contrary to the plaintiffs arguments, the Court finds that the subject forum selection clause applies to the instant dispute, where the plaintiff seeks, inter alia, a declaration as to the parties’ rights and obligations under the subject agreement, and the plaintiffs complaint contains numerous allegations concerning the terms of the subject agreement, as well as the circumstances surrounding the parties’ entering into the agreement.
Under a plain reading of the subject forum selection clause, this Court is foreclosed from presiding over the subject dispute and the plaintiffs Complaint shall be dismissed. The parties agree that the dismissal of the plaintiffs Complaint should be without prejudice to the plaintiffs right to refile in the proper venue. (Defendants Memorandum of Law in Support of Motion to Dismiss, pp. 3 and 14; Plaintiffs Amended Memorandum of Law in Opposition to Defendants Motion to Dismiss, p. 20).
Accordingly, it is hereby:
ORDERED, that the defendants Motion to Dismiss is GRANTED, and the plaintiffs Complaint is dismissed, without prejudice to the plaintiffs right to refile in the proper venue; and it is further,
ORDERED, that all other requests for relief not specifically addressed herein are deemed DENIED.
This constitutes the Decision and Order of this Court.
Conrad D. Singer, J.