O'Connell v Friedman

[*1] O'Connell v Friedman 2007 NY Slip Op 51997(U) [17 Misc 3d 131(A)] Decided on September 4, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 4, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and MOLIA, JJ
2006-1495 N C.

Philip O'Connell and DOROTHEA O'CONNELL, Respondents,

against

William Friedman, Appellant, -and- IRENE TURNER, Defendant.

Appeal from an order of the District Court of Nassau County, Second District (Sharon M.J. Gianelli, J.), entered July 13, 2006. The order denied defendant William Friedman's motion to dismiss the action.

Order modified by providing that the motion by defendant William Friedman to dismiss the action is granted to the extent of dismissing the action as against him on condition that within 30 days of the date of the order entered hereon he deposit with the court below the funds he holds in escrow pursuant to the possession agreement; otherwise, motion denied. As so modified, order affirmed without costs.

In this small claims action, plaintiffs allege fraud and breach of an agreement arising from their purchase of real property from defendant Irene Turner and her husband, Samuel Turner. Defendant William Friedman, who acted as the sellers' attorney in the transaction, moved to dismiss the action on the grounds that the Small Claims Part of the court had no jurisdiction over Irene Turner pursuant to UDCA 1801, that an agreement between the parties barred any action from being brought in the Small Claims Part of the court, and that Samuel Turner was a [*2]necessary party who should have been joined. The court denied defendant's motion, and defendant William Friedman appealed.

As part of a written possession agreement, signed by plaintiff Philip O'Connell, defendants William Friedman and Irene Turner, and Samuel Turner, it was agreed, inter alia, that defendant Friedman would hold $2,500 in escrow to secure the performance by the sellers and that any claims arising from an alleged breach of a representation as to the condition of the property may be resolved by a lawsuit, but that "no such legal action may not [sic] be brought in any small claims court." Notwithstanding the use of the double negative, the obvious intent of the parties, undisputed by plaintiffs, was to bar claims regarding the condition of the property from being brought in the Small Claims Part. Reasonable forum selection clauses are
enforceable (see e.g. Brooke Group v JCH Syndicate 488, 87 NY2d 530, 534 [1996]), and plaintiffs have failed to demonstrate that this clause would be unduly burdensome or should not be enforced.

As the parties expressly agreed not to bring their claims in the Small Claims Part of the court, it would deny defendant William Friedman substantial justice to force him to proceed to trial in the Small Claims Part over his objection (UDCA 1807; see e.g. Anderson v Dutchess County, 12 Misc 3d 94 [App Term, 9th & 10th Jud Dists 2006]; Costa v Town of Babylon, 6 Misc 3d 7 [App Term, 9th & 10th Jud Dists 2004]; Rogers v Town of Babylon, NYLJ, July 12, 1989 [App Term, 9th & 10th Jud Dists]). However, while defendant Friedman's motion purportedly sought to dismiss the action in its entirety, we note that Mr. Friedman did not claim to represent defendant Irene Turner in his motion, and that he alone appealed. Accordingly, we grant defendant Friedman's motion, but only to the extent of dismissing the action as against him on condition that within 30 days of the date of the order entered hereon, he deposit with the court below the funds he holds in escrow pursuant to the possession agreement; otherwise, motion by defendant Friedman denied.

In view of our determination, we do not reach appellant's other contentions, including his contention that the court lacked jurisdiction over the action as against defendant Irene Turner.

Rudolph, P.J., McCabe and Molia, JJ., concur.
Decision Date: September 04, 2007