Tuesday, May 20, 2014

Giving effect to a forum selection clause.

Practice point:  The Appellate Division found no merit in plaintiff's claim that the forum selection clause should not be upheld because this is a tort action and not a breach of contract action. The applicability of a forum selection clause does not depend on the nature of the underlying action. Rather, it is the clause's that determines which claims fall within its scope. Here, the contract provision reciting that "[a]ny and all actions arising out of or related to th[e] Agreement" includes the causes of action at issue.

Student note:  In addition, the Appellate Division noted that the plaintiff failed to show that the forum selection clause was unreasonable or unjust, or that a trial in Westchester County would be so gravely difficult that, for all practical purposes, she would be deprived of her day in court. Also, the plaintiff did not allege, or demonstrate, that the forum selection clause was the result of fraud or overreaching. Under these circumstances, the plaintiff failed to make any showing that the forum selection clause should be set aside.

Case:  Couvertier v. Concourse Rehabilitation & Nursing, Inc., NY Slip Op 03473 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: The effectiveness of a waiver and release from liability for negligence.