Summary
declining to apply forum selection clause to non-party
Summary of this case from Diesel Props S.R.L. v. Greystone Business Cr. II LLCOpinion
244
February 14, 2002.
Order, Supreme Court, New York County (Charles Ramos, J.), entered June 27, 2001, which granted the motion of defendants Channel Technologies and International Transducer Corp. (ITC) to dismiss the complaint as against them for lack of personal jurisdiction, unanimously affirmed, with costs.
JOHN E. TARDERA, for plaintiff-appellant.
HIRAM D. GORDON, for defendants-respondents.
Before: Sullivan, J.P., Rosenberger, Rubin, Friedman, Marlow, JJ.
Contrary to plaintiff's contention, defendant Channel did not, under the subject asset purchase agreement, submit to the jurisdiction of New York State's courts. The only parties named in the contract as being subject to the forum selection clause are defendant Harris (referred to in the agreement as "SeaBeam") and plaintiff. Thus, it is clear that there was no intent to include Channel, a California corporation, in the contract's mandatory New York forum selection provision, and, indeed, that Channel was deliberately excluded therefrom (see, Two Guys From Harrison-N.Y., Inc. v. S.F.R. Realty Assocs., 63 N.Y.2d 396, 403-404). In so concluding, we note the absence of any factual predicate for plaintiff's contention that Channel and its wholly-owned subsidiary, defendant ITC, bear so close a relation to defendant Harris and the subject asset purchase agreement as to have been foreseeably bound by and thus implicitly included within the agreement's forum selection clause (see, Maritime Ins. Co. Ltd. v. M/V "Sea Harmony", 1998 U.S. Dist LEXIS 6294; cf., Direct Mail Prod. Servs., Ltd. v. MBNA Corp., 2000 U.S. Dist LEXIS 12945, *13-14). Finally, the motion court correctly concluded that Channel and ITC, California corporations principally situated in California, had not had the minimum contacts with New York necessary to subject them to the jurisdiction of its courts under its long-arm statute.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.