INDYMAC BANK v. Vincent Ancona, et al., Defendants-Appellants. (2008)

Order, Supreme Court, New York County (Judith J. Gische, J.), entered February 23, 2007, which, to the extent appealed from, denied so much of appellants' motion as sought dismissal of the complaint against defendant Ancona and the fifth cause of action against defendant Union America Mortgage (UAM), unanimously affirmed, with costs.

 The court properly declined to consider the forum selection clause since appellants failed to assert a jurisdictional defense in their motion (see Montcalm Publ. Corp. v. Pustorino, 125 A.D.2d 188, 508 N.Y.S.2d 455 [1986] ), and only raised the effect of the clause for the first time in ¶ 34 of their attorney's 37-paragraph reply affirmation (see Ritt v. Lenox Hill Hosp., 182 A.D.2d 560, 562, 582 N.Y.S.2d 712 [1992] ).

 Ancona was a “seller” pursuant to the unambiguous Seller Guide incorporated by reference in the Customer Agreement, and was subject to the warranties and representations therein.   Appellants' breach was sufficiently alleged.   The claim for negligent retention of a closing agent was viable.