Koike Aronson, Inc. v. Bearing Distribs., Inc.

• Decision Date: 04 August 2022
• Docket Number: 300,CA 21-01396
• Citation: 208 A.D.3d 956,173 N.Y.S.3d 366
• Parties: KOIKE ARONSON, INC., Plaintiff-Appellant, v. BEARING DISTRIBUTORS, INC., doing business as BDI, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 956
173 N.Y.S.3d 366

KOIKE ARONSON, INC., Plaintiff-Appellant,
v.
BEARING DISTRIBUTORS, INC., doing business as BDI, Defendant-Respondent.

300
CA 21-01396

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: August 4, 2022

HODGSON RUSS LLP, BUFFALO (RYAN K. CUMMINGS OF COUNSEL), FOR PLAINTIFF-APPELLANT.

DUANE MORRIS LLP, PHILADELPHIA, PENNSYLVANIA (BRIAN J. SLIPAKOFF, OF THE PENNSYLVANIA BAR, ADMITTED PRO HAC VICE, OF COUNSEL), FOR DEFENDANT-RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

208 A.D.3d 956

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the amended complaint is reinstated.

Memorandum: Plaintiff commenced this breach of warranty action against defendant in Supreme Court, Wyoming County. Defendant moved to dismiss the amended complaint under CPLR 3211 (a) (1) on the ground that the parties’ underlying agreement includes a forum selection clause requiring litigation of this action in Cuyahoga County, Ohio (see UCC 2-207 ). The court granted the motion, and plaintiff appeals. We now reverse.

We agree with plaintiff that the court erred in granting defendant's motion. The rationale upon which the court concluded that the forum selection clause had become part of the parties’ agreement under UCC 2-207 —i.e., that the final form in the transactional chain constituted a counteroffer by defendant that plaintiff fully accepted by performance—was examined and rejected by the Third Department in (

208 A.D.3d 957

Lorbrook Corp. v. G & T Indus., Inc., 162 A.D.2d 69, 74-75, 562 N.Y.S.2d 978 [3d Dept. 1990] ). We agree with the Third Department's analysis and holding

173 N.Y.S.3d 368

on that issue and conclude that here defendant's order confirmation form was not a counteroffer the terms of which were accepted by plaintiff's performance. Notably, defendant does not distinguish or ask us to reject Lorbrook Corp. in any respect.

Defendant offers an alternative ground for affirmance, that the ostensible forum selection clause constituted a "supplementary term[ ]" of the parties’ implied-in-fact contract under UCC 2-207 (3) by virtue of the parties’ longstanding "course of dealing" ( UCC 1-303 [b], [d] ). However, that alternative ground for affirmance is raised for the first time on appeal and is thus not properly before us (see Kavanaugh v. Kavanaugh , 200 A.D.3d 1568, 1575-1576, 161 N.Y.S.3d 558 [4th Dept. 2021]...