Arthur Young & Co. v. Leong
| Decision Date | 01 June 1976 |
| Citation | 53 A.D.2d 515,383 N.Y.S.2d 618 |
| Court | New York Supreme Court — Appellate Division |
| Parties | ARTHUR YOUNG & COMPANY, Plaintiff-Appellant, v. Robert H. Y. LEONG, Defendant-Respondent. |
L. B. Hoguet, New York City, for plaintiff-appellant.
B. S. Kaplan, New York City, for defendant-respondent.
Before STEVENS, P.J., and MARKEWICH, BIRNS and NUNEZ, JJ.
Order, Supreme Court, New York County, entered February 6, 1975, reversed, in the exercise of discretion, and the motion of defendant-respondent to dismiss the complaint on the ground of forum non conveniens denied, with $60 costs and disbursements to appellant. Special Term, apparent relying upon the holding in Silver v. Great American Insurance Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398, 278 N.E.2d 619 exercised discretion to dismiss, conditioned upon defendant's waiver of defenses of limitation of time and laches arising after commencement of the action. Plaintiff-appellant's opposition to the motion was based upon a clause contained in the articles subscribed by the parties, which provided that the applicable law to govern disputes between them should be that of this state and that all claims pressed under the agreement 'shall be heard and determined in the Federal or state courts located in the County and State of New York.' It was further provided, rather elaborately, for any suit commenced elsewhere to be transferred as indicated, and that plaintiff consent thereto, or if consent be unobtainable, that the suit should become dismissible without prejudice to being commenced again in one of the designated courts.
Silver, a 1972 case, holds no more than does its later codification succinctly expressed in the last sentence of CPLR 327: 'The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action.' Its whole effect was to vitiate the rule to the contrary which theretofore obtained. See in this connection the Appellate Division decision which requested our highest court to reconsider that rule: 35 A.D.2d 317, 316 N.Y.S.2d 186. The practical effect of abrogation of the earlier rule was simply to relegate cases of this type to evaluation in the exercise of discretion. And this is what Special Term and our dissenting Justice have done, completely ignoring however a most salient factor.
The factor which distinguishes this case from Silver, and every other case which follows it, is the specific agreement of the parties as to the forum in which disputes should be adjudicated. Parenthetically, though the forum selection clause was not in the original 1971 agreement between the parties, it was added by a subsequent document, in force when this suit commenced, and is applicable by its terms to the separate agreement sued on. In the absence of a showing of contrary public policy, or fraud, or mistake, the meeting of the minds expressed in the contract should ordinarily be enforced. Cf. Gilbert v. Burnstine, 255 N.Y. 348, 174 N.E. 706. We find here none of the reasons militating against...
To continue reading
Request your trial
-
Credit Francais Intern., S.A. v. Sociedad Financiera De Comercio, C.A.
...policy ought to prevail." (Emphasis supplied). Gilbert v. Burnstine, 255 N.Y. 348, 354, 357, 174 N.E. 706. In Arthur Young & Co. v. Leong, 53 A.D.2d 515, 383 N.Y.S.2d 618 (1976), app. dismd. 40 N.Y.2d 984, 390 N.Y.S.2d 927, 359 N.E.2d 435, the Appellate Division of this department declared ......
-
Sebastian Holdings, Inc. v. Deutsche Bank AG
...Fire Ins. Co. of Pittsburgh, Pa. v. Worley, 257 A.D.2d 228, 232, 690 N.Y.S.2d 57, 60 (1st Dept.1999); Arthur Young & Co. v. Leong, 53 A.D.2d 515, 516, 383 N.Y.S.2d 618, 619 (1st Dept.1976), appeal dismissed, 40 N.Y.2d 984, 390 N.Y.S.2d 927, 359 N.E.2d 435 (1976). It is also uncontested that......
-
Bryfogle v. Carvel Corp.
...upon a forum, the parties themselves obviated considerations of inconvenience to a party or a witness." Arthur Young & Co. v. Leong, 53 A.D.2d 515, 383 N.Y.S.2d 618, 619, appeal dismissed, 40 N.Y.2d 984, 359 N.E.2d 435, 390 N.Y.S.2d 929 (1976). Witness availability and the potential need fo......
-
Babcock & Wilcox Co. v. Control Components, Inc.
...of New York and choosing New York law estops CCI from claiming that New York is an inconvenient forum. See, Young & Co. v. Leong, 53 A.D.2d 515, 383 N.Y.S.2d 618 (1st Dept.1976). All parties here recognize that a New York court's decision to entertain a declaratory judgment action is discre......