F G II, Inc. v Saks Inc.

F G II, Inc. v Saks Inc. 2007 NY Slip Op 09698 [46 AD3d 305] December 11, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

F G II, Inc., Appellant,
v
Saks Incorporated, Respondent.

—[*1] Maidenbaum & Associates, P.L.L.C., New York City (Jeffrey A. Maidenbaum of counsel), for appellant.

Kirkpatrick & Lockhart Preston Gates Ellis, LLP, New York City (Michael R. Gordon of counsel), for respondent.

Order, Supreme Court, New York County (Herman Cahn, J.), entered August 18, 2006, which granted defendant's motion to dismiss plaintiff's first amended complaint, unanimously affirmed, with costs.

The IAS court appropriately dismissed the first amended complaint, where plaintiff's claims against defendant were governed by the Vendor Standards Manual which controlled the contractual relationship between the parties and contained a forum selection clause requiring the action to be instituted in Jefferson County, Alabama (Boss v American Express Fin. Advisors, Inc., 15 AD3d 306 [2005], affd 6 NY3d 242 [2006]). Defendant did not waive the right to bring the instant motion pursuant to CPLR 327 by failing to raise the issue in its pre-answer motion to dismiss (see Harp v Malyn, 166 AD2d 848, 849 [1990]), and defendant's answer also set forth a sufficient recitation of its position to avoid any surprise to plaintiff (CPLR 3018 [b]). Concur—Marlow, J.P., Nardelli, Williams and McGuire, JJ.