Month: April 2012

Forum Selection Clause

Public Adm'r Bronx County v Montefiore Med. Ctr., 2012 NY Slip Op 02411 (1st Dept., 2012)

The forum selection clauses in the admission agreements at issue provide that "[a]ny and all actions arising out of or related to th[e] Agreement[s] shall be brought in . . . Westchester County." Because this action arises out of or relates to Morningside's duties and obligations under the agreements, the clauses apply and thus venue was properly transferred to Westchester County (see Buhler v French Woods Festival of Performing Arts, 154 AD2d 303 [1989]; cf. De La Cruz v Caddell Dry Dock & Repair Co., Inc., 56 AD3d 365, 366 [2008]). Plaintiff has failed to show that enforcement of the forum selection clauses would violate public policy or that a trial in Westchester County would be so impracticable and inconvenient that he would be deprived of his day in court (see Bank Hapoalim (Switzerland) Ltd. v Banca Intesa S.p.A., 26 AD3d 286, 288 [2006]; cf. Yoshida v PC Tech U.S.A. & You-Ri, Inc., 22 AD3d 373 [2005]). Moreover, there is no allegation that the agreements at issue were the result of fraud or overreaching (cf. DeSola Group v Coors Brewing Co., 199 AD2d 141, 141-142 [1993]). Although defendant Montefiore was not a party to the agreements, in order to avoid inconsistent verdicts, the entire action was properly transferred to Westchester County (see Woodhouse v Orangetown Pediatrics, 213 AD2d 362 [1995]).

Personal Jurisdiction. Consent.

Pena v R & B Transp., 2012 NY Slip Op 02389 (1st Dept., 2012)

Defendant R & B is a federally regulated motor carrier, covered by the Motor Carrier Act of 1935. Pursuant to that act, it appointed an agent for service of process in New York (49 USC 13304). The IAS court adopted the referee's finding that this was not a consent to jurisdiction over R & B in New York. This was error. We have previously addressed this precise question, and found that the appointment of an agent under the act is consent to suit in this State (Eagle v Hall & Sons, Inc., 265 AD 809 [1942]; see also Brinkmann v Adrian Carriers, Inc., 29 AD3d 615, 617 [2006]).

Truck driver Boyd, a Georgia resident, was driving from Florida to Massachusetts when the accident occurred in New Jersey. As such, there is no basis for personal jurisdiction over him (Daniel B. Katz & Assoc. Corp. v Midland Rushmore, LLC, 90 AD3d 977 [2011]).

 

Chill

2012-04-19_18-59-32_609 (1)I've been on the fence.  I'm torn between getting rid of this, moving it, and keeping the password on it
intermittenly just aggravate everyone because if I'm miserable, I want company.  

As of now, I'm keeping everything where it is and I'll start going through the months of case I've been ignoring soon.  A couple of things in the CPLR changed.  I'll put that in a post too.

But, I have a feeling that I will stop doing this, and sooner rather than later at that.  In July I will have yet another kid, which will probably be what kills this blog, and what's left of my soul.  On the other hand, being up at all hours of the night might be just want I need to get this thing going again.

In the meantime, everyone chill the fuck out.  Look at my dog sitting next to some tulips (I've taken up gardening), have a drink and calm down.