Opinion
No. 3119.
March 18, 2008.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered February 23, 2007, which, to the extent appealed from, denied so much of appellants' motion as sought dismissal of the complaint against defendant Ancona and the fifth cause of action against defendant Union America Mortgage (UAM), unanimously affirmed, with costs.
Miranda Sokoloff Sambursky Slone Verveniotis LLP, Mineola (Steven Verveniotis of counsel), for appellants.
Feldman Weinstein Smith LLP, New York (David J. Galalis of counsel), for respondent.
Before: Lippman, P.J., Gonzalez, Sweeny and Catterson, JJ.
The court properly declined to consider the forum selection clause since appellants failed to assert a jurisdictional defense in their motion ( see Montcalm Publ. Corp. v Pustorino, 125 AD2d 188), and only raised the effect of the clause for the first time in paragraph 34 of their attorney's 37-paragraph reply affirmation ( see Ritt v Lenox Hill Hosp., 182 AD2d 560, 562).
Ancona was a "seller" pursuant to the unambiguous seller guide incorporated by reference in the customer agreement, and was subject to the warranties and representations therein. Appellants' breach was sufficiently alleged. The claim for negligent retention of a closing agent was viable.