II INC v. SAKS INCORPORATED (2007)

Supreme Court, Appellate Division, First Department, New York.

F G II, INC., Plaintiff-Appellant, v. SAKS INCORPORATED, Defendant-Respondent.

Decided: December 11, 2007

MARLOW, J.P., NARDELLI, WILLIAMS, McGUIRE, JJ.

Maidenbaum & Associates, P.L.L.C., New York (Jeffrey A. Maidenbaum of counsel), for appellant. Kirkpatrick & Lockhart Preston Gates Ellis, LLP, New York (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. Am. Express Fin. Advisors, Inc., 15 A.D.3d 306, 791 N.Y.S.2d 12 [2005], affd. 6 N.Y.3d 242, 811 N.Y.S.2d 620, 844 N.E.2d 1142 [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 A.D.2d 848, 849, 563 N.Y.S.2d 181 [1990] ), and defendant's answer also set forth a sufficient recitation of its position to avoid any surprise to plaintiff (CPLR 3018 [b] ).

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