Movado Group, Inc. v Mozaffarian

Movado Group, Inc. v Mozaffarian 2012 NY Slip Op 00732 Decided on February 2, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 2, 2012
Mazzarelli, J.P., Friedman, Catterson, Renwick, Román, JJ.
6683 603070/09

[*1]Movado Group, Inc., etc., Plaintiff-Appellant,

v

Shapur Mozaffarian, etc., et al., Defendants-Respondents.




Gregg J. Borri Law Offices, New York (Gregg J. Borri of
counsel), for appellant.
Storch Amini & Munves PC, New York (Jason Levin of
counsel), for respondents.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered November 24, 2010, which denied plaintiff's motion for a default judgment against defendants, and granted defendants' motion to dismiss the complaint for lack of personal jurisdiction, unanimously reversed, on the law, without costs, defendants' motion denied, and the matter remanded for a determination of plaintiff's motion on the merits.

Defendants signed a credit agreement in which they expressly acknowledged receipt of, and agreed to be bound by, terms and conditions contained in an extrinsic document, which defendants neither read nor requested a copy to read. After the credit application was approved, defendants saw, for the first time, the terms and conditions, which contained a New York forum selection clause.

Plaintiff proved by a preponderance of the evidence (see Matter of Pickman Brokerage [Bevona], 184 AD2d 226, 226-227 [1992]), that the terms and conditions of the extrinsic document were incorporated into the credit agreement, and that defendants' acknowledged receipt and agreed to be bound by the same. The credit agreement, which identified the terms and conditions as those contained on each invoice, was sufficient to put defendants on notice that there was an additional document of legal import to the contract they were executing (see Shark Information Servs. Corp. v Crum & Forster Commercial Ins., 222 AD2d 251, 252 [1995]; see also American Dredging Co. v Plaza Petroleum, 799 F Supp 1335, 1338 [ED NY 1992], vacated in part on other grounds, 845 F Supp 91 [ED NY 1993]). Defendants' decision not to inquire as to the terms and conditions is one by which they are bound (see Sorenson v Bridge Capital Corp., 52 AD3d 265, 266 [2008], lv dismissed 12 NY3d 748 [2009]; see also Hotel 71 Mezz Lender LLC v Falor, 64 AD3d 430, 430 [2009] [a signer's duty to read and understand that which he signs is not "diminished merely because []he was provided with only a [portion of that document]").

The parties' dispute is not, as found by the lower court, governed by UCC 2-207(1)-(2)(b), which provides that, between merchants, where there is an "expression of acceptance or a written confirmation . . . [even if it] states terms additional to or different from those offered or agreed upon . . . [the additional or different terms] become part of the contract unless . . . they materially alter it" (id.). Here, the forum selection clause was not an "additional [*2]or different term" added to the contract, nor was it a confirmatory writing; rather, it was one of the terms and conditions incorporated by reference into the contract at its inception (see Guerra v Astoria Generating Co., L.P., 8 AD3d 617, 618 [2004]). Neither of the issues generally decided pursuant to UCC 2-207 are at issue here (see e.g. K.I.C. Chems., Inc. v ADCO Chem. Co., 1996 US Dist LEXIS 3244, at *10 [SD NY 1996] ["a classic battle of the forms'"]; Hugo Boss Fashions v Sam's Eur. Tailoring, 293 AD2d 296, 297 [2002] [a written alteration to an oral agreement]).

We have considered the parties' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 2, 2012

CLERK