MISAKO YOSHIDA v. PC TECH YOU RI INC

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

MISAKO YOSHIDA, Plaintiff-Respondent, v. PC TECH U.S.A. & YOU-RI, INC., Defendant-Appellant.

Decided: October 20, 2005

MAZZARELLI, J.P., FRIEDMAN, MARLOW, NARDELLI, JJ. Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, Albany (Sonya del Peral of counsel), for appellant. Nimkoff Rosenfeld & Schechter, LLP, New York (Steven H. Blatt of counsel), for respondent.

Order, Supreme Court, New York County (Herman Cahn, J.), entered on or about March 9, 2005, which, in an action by a Japanese citizen against a Japanese company arising out of the latter's alleged fraudulent misrepresentations that it was licensed and accredited as an educational institution by the State of New York, denied defendant's motion to dismiss the complaint, unanimously affirmed, with costs.

Plaintiff's allegations, if accepted, would convincingly establish her claim that defendant misrepresented itself as an accredited educational institution, contravening a strong public policy of the State as reflected by Education Law. Plaintiff also makes a strong showing that a trial in Tokyo would be so impracticable and inconvenient that she would be deprived of her day in court.   Under the circumstances, the IAS court properly declined to enforce the clause in the parties' contract selecting Tokyo as the forum (see The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 16-17, 92 S.Ct. 1907, 32 L.Ed.2d 513 [1972];  Premium Risk Group v. Legion Ins. Co., 294 A.D.2d 345, 346, 741 N.Y.S.2d 563 [2002] ).   We have considered and rejected defendant's other arguments.