Barden Solutions, Inc. v Bassetti

[*1] Barden Solutions, Inc. v Bassetti 2005 NY Slip Op 52351(U) [18 Misc 3d 1144(A)] Decided on October 18, 2005 Supreme Court, Monroe County Fisher, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2005
Supreme Court, Monroe County

Barden Solutions, Inc., Plaintiff,

against

Darla Bassetti, Paul Barbosa, Antonio Barbosa, and Bassetti Consulting, Incorporated, Defendant.



2005/04767

Kenneth R. Fisher, J.

Plaintiff is a New York corporation with its principal place of business located at 9611 Highway 1 #393, Sebastian, Florida. By admissions of the parties, the three natural defendants all reside in Florida. The corporate defendant is incorporated in Florida, with its principal place of business in that state as well. The subject complaint alleges that defendants, inter alia, breached their contractual duties to plaintiff. The parties agreed that defendants would be temporarily employed by plaintiff for the period between approximately May 1, 2004 through August 31, 2004, in which defendants would provide services relating to the use of certain computer applications to The Huntington National Bank ("Huntington"). Huntington is primarily located in and around Columbus, Ohio, with no site relative to this matter outside of the State of Ohio.

Defendants bring this motion under CPLR §327(a), submitting that the court should dismiss the action in the interest of substantial justice, because this forum, as chosen by plaintiff, is an inappropriate one. In support of this application, defendants submit, inter alia, that Monroe County is not the proper forum for this action because all of the defendants live and work in Florida, defendant corporation is located there, plaintiff's principal place of business is located in Florida, the subject contractual agreements were executed in Florida, none of the work performed under the contract took place in New York and defendants have not conducted any business in New York in any other capacity. Defendants submit that this case lacks a substantial nexus to this forum, and based upon the consideration of the above mentioned factors, coupled with the inconvenience for all the witnesses to have to travel to New York in prosecuting the litigation here, they have sustained their claim that in the interest of substantial justice, the matter should be dismissed from this court. Defendants corroborate their claims of inconvenience through affidavits to that effect averred to by each individual defendant.

Plaintiff has opposed the motion. Plaintiff's primary argument can be encapsulated in its [*2]position that CPLR §327 is not applicable to this case. Plaintiff maintains that through operative language in the respective employment agreements, defendants have both submitted to the application of New York law to any disagreements and agreed that the forum for any litigation is to be found in New York. In furtherance of this position, plaintiff submits both the express language found in each agreement and CPLR §327(b). Plaintiff submits that pursuant to CPLR §327(b), because defendants have contractually agreed that New York law shall govern this matter, and because this is a contract or agreement to which General Obligation Law ("GOL") §5-

1402 applies, defendants are precluded from moving to dismiss this action on inconvenient forum grounds. Plaintiff continues that GOL §§5-1402 and 5-1401 apply to this case because the contractual agreements material to this litigation exceed the statutory monetary minimum requires of those two statutes ($1,000,000.00 and $250,000.00 respectively).

Discussion and Analysis

a)Forum Selection

Any discussion relative to the decision on this motion must begin with the operative language regarding jurisdiction which is found in ¶11(a) of each respective pertinent agreement. The section reads as follows;

(a) Governing Law: Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of (New York). I hereby expressly consent to the personal jurisdiction of the state and federal courts located in (New York) for any lawsuit filed there against me by the Company arising from or relating to this Agreement.

Contrary to the plaintiff's assertion, this provision is not a forum selection clause, but rather, a choice of law and service- of-suit clause. Brooke Group Ltd.,v JCH Syndicate 488, 87 NY2d 530 (1996); Price v. Brown Group, Inc., 206 AD2d 195 (4th Dept. 1994); see also, Reliance Insurance Company v. Six Star, Inc., 155 F. Supp.2d 49(S.D.NY 2001). There is clearly no language in the agreements wherein defendants expressly agree to New York as a forum for litigation. The clause found in each agreement is no more than a consent to jurisdiction. It does not state that the parties agreed to a single forum to resolve all their disputes. Price v. Brown Group, Inc., supra. Therefore, these paragraphs, "[do] not bind the parties to litigate in a particular forum, or give [plaintiff] the exclusive right to choose a forum unrelated to the dispute". Brooke Group Ltd., v. JCH Syndicate 488, supra at 534. Accordingly, absent the applicability of CPLR §327(b), defendants may pursue this motion to dismiss based upon the forum non conveniens doctrine.

In that regard, the court finds that CPLR §327(b) is inapplicable and serves as no bar to this motion. Simply put, in order for CPLR 327(b) to apply in this case, GOL §§ 5-1402 is a prerequisite. As that statutes reads, in order for GOL §5-1402 choice of law dictates to apply, the contract, agreement or undertaking must have been made pursuant to GOL §5-1401. A simple reading of GOL §5-1401, establishes that it does not apply, inter alia, to any contract agreement or undertaking, "for labor or personal services." Since these are employment agreements which are personal service agreements, see e.g., Moses v. Polk, 251 AD2d 75 (1st Dept. 1998); Donald Rubin, Inc., v. Schwartz, 160 AD2d 53 (1st Dept. 1990), GOL §5-1401 does not apply, which causes GOL §5-1402 to fail, which then precludes, for our purposes, the utilization of CPLR §327(b). Without the ability to wield CPLR §327(b), the analysis of [*3]defendants' motion is based upon the mandates of the forum non conveniens doctrine.[FN1]

b) Forum Non Conveniens

It is well settled that pursuant to CPLR §327(a), a court may dismiss an action when it finds in the interest of substantial justice that the action should be heard in another forum. Bodea v. Trans Nat Express, Inc., 286 AD2d 5 (4th Dept. 2001). The doctrine of forum non conveniens is based upon considerations of justice, fairness and convenience and the court must decide to retain jurisdiction or not in the exercise of its sound discretion. Islamic Republic of Iran v. Pahlavi, 62 NY2d 474 (1984). This doctrine is flexible and requires the balancing of many factors in light of the facts and circumstances of the particular case. National Bank and Trust Company of North America v. Banco De Vizcaya, S., 72 NY2d 1005, 1007 (1988). A court should not retain jurisdiction where the action lacks a substantial nexus to New York. Martin v. Mieth, 35 NY2d 414 (1974). Additionally, the burden of proving that an alternative forum is more appropriate is borne by the moving party. Banco Amrosiano v. Artco Bank & Trust, 62 NY2d 65 (1984). The factors to be balanced by the court include the difficulties for defendants in litigating the claims in this state, the burden on the New York courts in entertaining the suit and the availability of another more convenient forum in which plaintiff may seek redress. Banco Ambrosiano v. Artco Bank & Trust, 62 NY2d at 73. While choice of law provisions are important they are not a determinative factor on the issue of forum non conveniens. Brock v. Rockwell Manufacturing Co. Inc., 151 AD2d 629 (2d Dept. 1989).

Here, plaintiff is significantly challenged in its attempt to demonstrate that this action has a substantial nexus to this state. The only connection which plaintiff can assert between this action and the State of New York is that it is a corporation incorporated in New York and its principal attorney resides here. Its principal place of business is in Florida. All of the defendants are situated in Florida. For that matter, the agreements were consummated in Florida. All of the services performed under the terms of the agreements were performed in either Florida or Ohio. There is no evidence to contradict defendants' claim that they do no business in New York, do not plan to engage in business in New York in the future or intend to visit New York at some time. Additionally, all of the defendants submitted affidavits to that effect and further averred that to travel to New York on a continual basis to litigate this action would result in hardship. See generally, Reliance Insurance Company v. Six Star,Inc., 155 F. Supp. 2d 49, 58-59 (S.D.NY 2001). Moreover, plaintiff did not present any evidence in opposition to this motion that it could not adequately seek redress in another jurisdiction that being Florida, and that the [*4]application of New York law in that jurisdiction will be overly burdensome. Banco Ambrosiano v. Artco Bank & Trust, 62 NY2d at 73-74.

Conclusion

Defendant has met its burden in establishing that New York State is an inconvenient forum in which to litigate this case following a balancing of the facts and circumstance presented based upon the consideration of justice fairness and convenience. Accordingly, defendants motion for dismissal pursuant to CPLR §327(a) is granted in all respects.

SO ORDERED.

______________________

Kenneth R. Fisher

Justice Supreme Court

DATED:October 18, 2005

Rochester, New York Footnotes

Footnote 1: Since GOL §§ 5-1401 and 5-1402 are inapplicable, there is no need to address whether the subject agreements reach the monetary thresholds of those statutes. In any event, because the agreements were terminable at will, Guard-Life Corp., v. Parker Hardware Manufacture Corp., 50 NY2d 183 (1980), plaintiff's value is based upon a mere expectancy rather than a contractual amount . Moreover, the aggregate amount alleged by plaintiff is based upon a Software Access Agreement which does not contain provisions which set proposed values or is exclusive to the plaintiff. Therefore, plaintiff would have been unable to establish the monetary requirements of the GOL provisions.