CHIARIZIA v. Fournier's Automotive, Inc., Doing Business as Xtreme Rydz of Orlando, Defendant-Respondent.

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

Richard CHIARIZIA, Plaintiff-Appellant, v. XTREME RYDZ CUSTOM CYCLES, et al., Defendants, Fournier's Automotive, Inc., Doing Business as Xtreme Rydz of Orlando, Defendant-Respondent.

Decided: September 28, 2007

PRESENT:  HURLBUTT, J.P., MARTOCHE, SMITH, LUNN, AND PERADOTTO, JJ. Knych & Whritenour, LLC, Syracuse (Matthew E. Whritenour of Counsel), for Plaintiff-Appellant. Stanley Law Offices, Syracuse (Robert A. Quattrocci of Counsel), for Defendant-Respondent.

Plaintiff commenced this action seeking damages for injuries he sustained when the handlebars of his motorcycle broke off while he was riding it.   Plaintiff purchased the motorcycle in Florida from Fournier's Automotive, Inc., doing business as Xtreme Rydz of Orlando (defendant), and at that time he signed a document entitled “Disclaimer of Safety and Waiver of Liability.”   That document provides in relevant part that “[p]urchaser agrees that any legal action or litigation against Fournier's Automotive Inc. or Xtreme Rydz of Orlando, will be submitted only in Orange County, Florida.”   We conclude that Supreme Court properly granted the motion of defendant seeking dismissal of the complaint against it based upon that forum selection clause.

 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, 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” (Premium Risk Group v. Legion Ins. Co., 294 A.D.2d 345, 346, 741 N.Y.S.2d 563;  see Bell Constructors v. Evergreen Caissons, 236 A.D.2d 859, 860, 654 N.Y.S.2d 80).   We note in addition that a person who “ ‘signs a document is conclusively bound by its terms absent a valid excuse for having failed to read it’ ” (Fleet Capital Leasing/Global Vendor Fin. v. Angiuli Motors, Inc., 15 A.D.3d 535, 536, 790 N.Y.S.2d 684).

 Here, plaintiff's sole challenge to the forum selection clause was that New York was the more convenient forum because all of the witnesses and the motorcycle itself are located in New York, and it would be a great economic hardship on him to pay for all of the witnesses to travel to Florida for a trial of this action.   That challenge is insufficient, however, because plaintiff has failed to demonstrate that enforcement of the forum selection clause would, in effect, deny him his day in court, and he has failed to allege that the clause was the result of fraud or overreaching (see Bell Constructors, 236 A.D.2d at 860, 654 N.Y.S.2d 80).   The fact that New York may be a more convenient forum is immaterial because defendant's motion is based on the parties' contract and not on the doctrine of forum non conveniens (cf. Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 477, 478 N.Y.S.2d 597, 467 N.E.2d 245, cert. denied 469 U.S. 1108, 105 S.Ct. 783, 83 L.Ed.2d 778;  Allen v. Marais, S.A., 307 A.D.2d 613, 762 N.Y.S.2d 188).   Plaintiff contends for the first time on appeal that, pursuant to the General Business Law and the Uniform Commercial Code, the document at issue is void as against public policy and thus that the forum selection clause is also unenforceable.   That contention is not preserved for our review (see Earley v. Town of Allegany, 298 A.D.2d 906, 907, 748 N.Y.S.2d 197, lv. denied 7 N.Y.3d 713, 824 N.Y.S.2d 605, 857 N.E.2d 1136) and, in any event, it is without merit.   “ ‘Whether a contract is entire or severable generally is a question of intention, to be determined from the language employed by the parties, viewed in the light of the circumstances surrounding them at the time they contracted’ ” (Barden & Robeson Corp. v. Timmerman, 116 A.D.2d 814, 815-816, 497 N.Y.S.2d 196, quoting Christian v. Christian, 42 N.Y.2d 63, 73, 396 N.Y.S.2d 817, 365 N.E.2d 849).   The document at issue contains several discrete provisions that are not intertwined, and we conclude therefrom that the parties intended that each of those provisions is severable.   Thus, even if the waiver of liability provision of the disclaimer is unenforceable, the forum selection clause remains viable (see Scavenger, Inc. v. GT Interactive Software, 273 A.D.2d 60, 61, 708 N.Y.S.2d 405).

Plaintiff's remaining contention is not preserved for our review and is, in any event, without merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: