Author: DMG

CPLR R. 511 Change of place of trial

CPLR § 501 Contractual provisions fixing venue

Tatko Stone Prods., Inc. v Davis-giovinzazzo Constr. Co., Inc., 2009 NY Slip Op 06210 (App. Div., 3rd, 2009)

We note first that, having raised the issue of improper venue as an
affirmative defense in the answer, Great American did not waive the
issue and could thereafter rely upon this defense in seeking dismissal
of the action (see Lischinskaya v Carnival Corp., 56 AD3d 116, 118 [2008], lv denied
___ NY3d ___ [June 30, 2009]). In addition, as Great American did not
follow the precise statutory procedures outlined under CPLR 511 (see CPLR 511 [a], [b]), the relief sought in its application became a discretionary matter (see Callanan Indus. v Sovereign Constr. Co., 44 AD2d 292, 295 [1974])^[FN1]. While Supreme Court may have erred in deciding the matter on subject matter jurisdiction grounds (see Matter of Lucchese v Rotella, 97 AD2d 645, 646 [1983], affd
60 NY2d 815 [1983]), we find that dismissal of the complaint was
nevertheless warranted based on the venue provision of the bond (see CPLR 501; see also Dogmoch Intl. Corp. v Dresdner Bank AG, 304 AD2d 396, 397 [2003]; Premium Risk Group v Legion Ins. Co., 294 AD2d 345, 345-346 [2002]; B & H Interior Contr. v Yonkers Contr. Co., 234 AD2d 44, 45 [1996]; Alwinseal, Inc. v Travelers Indem. Co., 61 AD2d 803, 803-804 [1978]).

"It is well established that forum selection clauses are valid
absent a showing that enforcement would be unreasonable and unjust or
that the clause is invalid because of fraud or overreaching" (VOR Assoc. v Ontario Aircraft Sales & Leasing, 198 AD2d 638, 639 [1993] [citations omitted]; see Brooke Group v JCH Syndicate 488, 87 NY2d 530, 534 [1996]; Harry Casper, Inc. v Pines Assoc., L.P., 53 AD3d 764,
764-765 [2008]). Here, in seeking to enforce the bond as a third-party
beneficiary of it, plaintiff, in absence of any evidence of
unreasonableness, fraud or overreaching (compare 3H Enters. v Bennett, 276 AD2d 965, 966 [2000], lv denied 96 NY2d 710 [2001]), is bound by its forum selection provision (see B & H Interior Contr. v Yonkers Contr. Co., 234 AD2d at 45; Buhler v French Woods Festival of Performing Arts, 154 AD2d 303, 305 [1989]; Alwinseal, Inc. v Travelers Indem. Co., 61 AD2d at 803-804; Callanan Indus. v Sovereign Constr. Co., 44 AD2d at 294; Khan Enter. Constr., Inc. v P & K Contr., Inc., 13 Misc 3d 1207[A] [2006]; Flush Metal Partition Corp. v Nuovo Corp., 57 Misc 2d 900, 901 [1968]; Frontier Excavating v St. Paul Fire & Mar. Ins. Co., 50 Misc 2d 232, 233 [1966]; see generally Harry Casper, Inc. v Pines Assoc., L.P.,
53 AD3d at 765). As plaintiff has advanced unpersuasive grounds upon
which this Court might disregard the forum selection provision in the
bond, we affirm dismissal of the action (see e.g. Dogmoch Intl. Corp. v Dresdner Bank AG, 304 AD2d at 397; Premium Risk Group v Legion Ins. Co., 294 AD2d at 346; British W. Indies Guar. Trust Co. v Banque Internationale A Luxembourg, 172 AD2d 234, 234 [1991]; Di Ruocco v Flamingo Beach Hotel & Casino, 163 AD2d 270, 271-272 [1990]).

Particularly unpersuasive is plaintiff's claim that dismissal is
improper because Great American failed to demonstrate that the subject
bond was "properly authenticated." While it would have been preferable
for Great American to include the entire, properly-executed bond
agreement in its moving papers, we are unpersuaded that this omission
was fatal to the requested relief. First, there can be no real dispute
that a valid and enforceable surety bond exists; indeed, plaintiff is
relying upon it for relief in the first instance. More importantly,
Great American submitted an affidavit of a senior claims analyst who
averred that the subject bond contained a "venue provision" which
requires that this action be venued in New Jersey. The analyst attached
the relevant excerpt from a copy of the bond to his affidavit. This
evidence was sufficient for Great American to establish the precise
language of the subject forum selection clause.

A similar (sort of) issue popped up in the Second Department not too long ago.

The bold is mine.

CPLR R. 2221(e) Motion for Leave to Renew

CPLR § 308 Personal service upon a natural person

CPLR R. 5015 Relief from judgment or order

CPLR § 317 Defense by person to whom summons not personally delivered

Gonzalez v City of New York, 2009 NY Slip Op 06163 (App. Div., 2nd, 2009)

Wells Fargo Bank, NA v Chaplin, 2009 NY Slip Op 06179 (App. Div., 2nd, 2009)

The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343; Bank of Am. Nat. Trust & Sav. Assn. v Herrick, 233 AD2d 351; Frankel v Schilling,
149 AD2d 657, 659). Ordinarily, a process server's affidavit of service
establishes a prima facie case as to the method of service and,
therefore, gives rise to a presumption of proper service (see Household Fin. Realty Corp. of N.Y. v Brown, 13 AD3d 340; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344; Frankel v Schilling, 149 AD2d 657, 659; see also New Is. Invs. v Wynne,
251 AD2d 560). However, where there is a sworn denial that a defendant
was served with process, the affidavit of service is rebutted, and the
plaintiff must establish jurisdiction at a hearing by a preponderance
of the evidence (see Mortgage Access Corp. v Webb, 11 AD3d 592, 593; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344; Kingsland Group v Pose, 296 AD2d 440; Balancio v Santorelli, 267 AD2d 189; New Is. Invs. v Wynne, 251 AD2d 560; Bank of Am. Nat. Trust & Sav. Assn. v Herrick, 233 AD2d at 352).
[*2]

Here, the plaintiff allegedly
effected service upon the appellant pursuant to CPLR 308(2) on April
23, 2007, by delivering the summons and complaint to a person of
suitable age and discretion, who was identified as Marilyn Matheson, at
the appellant's residence in Queens. In support of her motion, in
effect, to vacate her default in appearing or answering the complaint,
the appellant submitted an affidavit from Matheson averring that the
summons and complaint had never been delivered to her, and that she was
in Pawling, New York, in April 2007. Although Matheson's affidavit did
not specify that she was in Pawling on April 23, 2007, when process
allegedly was delivered to her in Queens, the appellant submitted
additional evidence to substantiate her claim that Matheson was in
Pawling that day, including a letter from a physician who treated
Matheson for flu symptoms. The appellant's submissions also indicated
that Matheson's physical appearance varied significantly from the
description set forth in the affidavit of service. Under these
circumstances, the appellant is entitled to a hearing on the issue of
whether service was properly effected pursuant to CPLR 308(2) (see Zion v Peters, 50 AD3d 894; Mortgage Access Corp. v Webb, 11 AD3d at 593; Bankers Trust Co. of Cal. v Tsoukas,
303 AD2d at 344). Thus, we remit the matter to the Supreme Court,
Queens County, for a hearing to determine whether the appellant was
properly served and thereafter for a new determination of the motion to
vacate.

The appeal from so much of the order dated June 5, 2008, as
denied that branch of the appellant's motion which was for leave to
reargue must be dismissed, since no appeal lies from an order denying
reargument. The appeal from so much of the order dated June 5, 2008, as
denied that branch of the appellant's motion which was for leave to
renew must be dismissed as academic in light of our determination on
the appeal from the order dated December 4, 2007.

The bold is mine.