Merchant Cash & Capital, LLC v Laulainen
Annotate this CaseDecided on February 28, 2017
Supreme Court, Nassau County
Merchant Cash and Capital, LLC, d/b/a BIZFI FUNDING, Plaintiff,
against
Jannette Laulainen individually and d/b/a JANNETTE FRANCO LAULAINEN DESIGN and FRANK LAULAINEN, Defendants.
609153/2016
For Plaintiff: Giuliano McDonnell & Perrone, LLP, 170 Old Country Road, Suite 608, Mineola, New York, 11501, 516-214-8448
For Defendants: Amos Weinberg, 49 Sommerset Drive South, Great Neck, New York, 11020, 516-829-3900
Arthur M. Diamond, J.
The following papers having been read on this motion:
Notice of Motion 001 (Defendants) 1
Opposition (Plaintiff) 2
Reply (Defendants) 3
Notice of Motion 002 (Plaintiffs) 4
Opposition (Defendant) 5
Reply (Plaintiff) 6
Defendants herein move for an order of this Court to change venue from Nassau County to New York County pursuant to CPLR §510(1). Plaintiff cross-moves for an order to strike affirmative defenses and dismiss counterclaims pursuant to CPLR §3211(a) and §3211(b). Based upon the following, Defendants motion is granted in its entirety and a decision on Plaintiffs' cross-motion is deferred to the Justice assigned this matter upon completion of the transfer and reassignment.
Motions to transfer venue are addressed to the sound discretion of the court. Leake v. Constellation Brands, Inc., 112AD3d 792, 978 NYS2d 65 (2nd Dept., 2013). 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, or 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. Molino v. Sagamore, 105 AD3d 922, 963 NYS2d 355 (2nd Dept., 2013). By commencing an action against a corporation in the wrong county, a plaintiff forfeits the right to select venue. Negron v. Nouveau Elevator Industries, Inc., 104 AD3d 655, 961 NYS2d 229 (2nd Dept., 2013).
Plaintiff commenced the within action in Supreme Court, Nassau County. Plaintiff, by [*2]its own admission, is a foreign corporation licensed to do business in the State of New York, with its principal place of business located in New York County. Defendant is a foreign business not authorized to do business in the State of New York and by all accounts does not have any contacts with the State of New York outside of the instant litigation.
In reviewing the agreement attached to Plaintiff's opposing papers, Section 5.6 entitled "Governing Law and Consent to Jurisdiction: Service of Process" makes clear that the parties have agreed that either the State or Federal Courts in New York shall have jurisdiction over any dispute arising from the agreement. However, this clause does not specify that venue will be placed in Nassau County specifically. Thus, while the waiver provision of this section addresses such claims that a court in the State of New York is inconvenient and that such dispute should be brought in a Court located in another state, the parties have not by agreement done away with the requirements of CPLR §503 entirely. Plaintiff was required to establish a nexus between the instant action, the parties, and Nassau County, but failed to do so. Moreover, the argument that Nassau County is not any more or less convenient for Defendants, not having any residence or presence inside the State of New York, than New York County or any other county in New York, is unpersuasive. Accordingly, Defendants application to change venue from Nassau County to New York County is granted. See Llorca v. Manzo, 254 AD2d 396, 679 NYS2d 83 (2nd Dept., 1998).
The Clerk of the Supreme Court of Nassau County is directed to transfer the above-entitled action to the Clerk of the Supreme Court of New York County forthwith. Defendants shall serve a copy of this order upon Plaintiff, the Clerk of Nassau County, and the Clerk of New York County within thirty (30) days from the date of this order.
Given the foregoing, this Court finds it would be improper to decide the cross-motion submitted herein by Plaintiff. As such, this motion is referred to the assigned Justice in Supreme Court, New York County, for a decision on the relief sought in Motion Sequence 002.
This hereby constitutes the decision and order of this Court.
E N T E R
DATED: February 28, 2017
_________________________________
HON. ARTHUR M. DIAMOND
J.S.C.
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