CPLR R. 3211(a)(1), CPLR R. 3211(a)(2), CPLR R. 327, and a forum selection clause

CPLR R. 3211 Motion to dismiss

CPLR R. 3211(a)(1) a defense is founded upon documentary evidence
CPLR R. 3211(a)(2) the court has not jurisdiction of the subject matter of the cause of action
CPLR R. 327 Inconvenient forum

Lischinskaya v Carnival Corp., 2008 NY Slip Op 07875 (App. Div., 2d)

While we thus find that the forum selection clause upon which
Carnival relies does not contravene federal law, we nevertheless
conclude that the Supreme Court was incorrect in holding that
enforcement of that clause deprived it of subject matter jurisdiction
.
"A court lacks subject matter jurisdiction when it lacks the competence
to adjudicate a particular kind of controversy in the first place" (Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 243). The competence of the Supreme Court to adjudicate maritime tort cases has not been questioned (see e.g. Mulhern v Manhasset Bay Yacht Club, 43 AD3d 425; Ayala v S.S. Fortaleza, 40 AD3d 440; Hayes v City of New York, 34 AD3d 208; Smith v Lone Star Indus., 1 AD3d 860).
Rather, the defendant's argument here is that the jurisdiction of the
court has been divested by a term of the contract between the parties.
That argument has been rejected, for good reason, as "hardly more than
a vestigial legal fiction" (M/S Bremen v Zapata Off-Shore Co., 407 US at 12).

"Subject matter jurisdiction . . . is not dependent upon the
state of facts which may appear in a particular case, arising, or which
is claimed to have arisen, under that general question" (Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166, quoting Hunt v Hunt, 72 NY 217, 229). As "a court of original, unlimited and unqualified jurisdiction" (Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718, quoting Kagen v Kagen, 21 NY2d 532, 537; see Lacks v Lacks, 41 NY2d 71, 75), the Supreme Court of the State of New York cannot be divested of its jurisdiction even by the Legislature (see Pollicina v Misericordia Hosp. Med. Ctr., 82 NY2d 332, 339). It is axiomatic that a court cannot be divested of its subject matter jurisdiction by a contract (see Wm. H. Muller & Co. v Swedish American Line Ltd., 224 F2d 806, 808, cert denied 350 US 903; Sliosberg v New York Life Ins. Co., 217
App Div 685, 688-689). Thus, while the forum selection clause at issue
here may be enforceable as a term of the contract between the parties,
it does not affect the jurisdiction of the Supreme Court (see LFC Lessors, Inc. v Pacific Sewer Maintenance Corp., 739 F2d 4, 6-7; Central Contracting Co. v Maryland Cas. Co., 367 F2d 341, 345).

We recognize that there is an ongoing debate in the federal
courts as to the nature of a dismissal pursuant to a contractual forum
selection clause
(see Asoma Corp. v SK Shipping Co., Ltd., 467 F3d 817, 822; New Moon Shipping Co., Ltd. v MAN B & W Diesel AG, 121 F3d 24, 28; Licensed Practical Nurses, Technicians and Health Care Workers of New York, Inc. v Ulysses Cruises, Inc., 131
F Supp 2d 393, 402-409) and that we have, in the past, affirmed such
dismissals for lack of subject matter jurisdiction, pursuant to CPLR
3211(a)(2)
(see LSPA Enter., Inc. v Jani-King of N.Y., Inc., 31 AD3d 394; Fleet Capital Leasing/Global Vendor Fin. v Angiuli Motors, Inc., 15 AD3d 535).
These two cases should no longer be followed in that regard. As a term
of the contract between the parties, however, a contractual forum
selection clause is documentary evidence
(see Trataros Constr., Inc. v New York City Hous. Auth., 34 AD3d 451, 452; Holiday Mgt. Assoc. v New York Inst. of Tech., 149 AD2d 462, 465; Siegel, NY Prac § 259 [4th ed]; see also 150 Broadway N.Y. Assoc., L.P. v Bodner, 14 AD3d 1) that may provide a proper basis for dismissal pursuant to CPLR 3211(a)(1) (see Boss v American Express Fin. Advisors, Inc., 6 NY3d 242).

Since the Supreme Court was not without subject matter
jurisdiction of the action by virtue of the enforcement of the
contractual forum selection clause, it was not foreclosed from
considering the availability, upon dismissing the complaint, of
granting relief to the plaintiff pursuant to CPLR 327. Nevertheless, we
affirm the Supreme Court's denial of the plaintiff's request for such
relief, on a different ground
.

CPLR 327 articulates the common-law doctrine of forum non conveniens (see Islamic [*5]Republic of Iran v Pahlavi, 62 NY2d 474, 478, cert denied 469
US 1108; Alexander, Practice Commentaries, McKinneys Cons Laws of NY,
Book 7B, C327:1 [2001 ed]). It permits a court, in its discretion, to
impose "any conditions that may be just" when dismissing an action on
the ground that "in the interest of substantial justice the action
should be heard in another forum" (CPLR 327; see Demenus v Sylvester, 146 AD2d 668).

Here, however, the dismissal is not discretionary, but is the
necessary consequence of enforcing the contract between the parties. As
a result, considerations such as the impact of the dismissal on the
plaintiff and whether fatality to the plaintiff's claims can be
avoided, which are legitimate in applying CPLR 327
(see Singh v Zuidema, 221 AD2d 1020; Crown Cork & Seal Co. v Rheem Mfg. Co., 64 AD2d 545), where the court is balancing interests (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474; Chawafaty v Chase Manhattan Bank, N.A., 288
AD2d 58), are irrelevant. Rather, in this regard, the dismissal is
analogous to a dismissal based upon lack of personal jurisdiction,
where those considerations play no role
(see Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574, 579; Sanchez v Major, 289 AD2d 320, 321; Sarfaty v Rainbow Helicopters, Inc., 221 AD2d 618, 619; Foley v Roche, 68 AD2d 558, 565).

Thus, contrary to the plaintiff's argument, even though the
Supreme Court had jurisdiction of the matter despite the forum
selection clause, it had no authority to grant discretionary relief to
the plaintiff pursuant to CPLR 327 once it determined that the contract
required that the complaint be dismissed
. We therefore affirm the order
of the Supreme Court.

SANTUCCI, ANGIOLILLO and CARNI, JJ., concur.

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