Litigant Waived Right to Enforce Forum Selection Clause

On March 3, 2016, Justice Kornreich of the New York County Commercial Division issued a decision in Herman v. 36 Gramercy Park Realty Associates, LLC, 2016 NY Slip Op. 30360(U), holding that a litigant had waived the right to enforce a forum selection clause.

In Herman, the defendant filed a third-party complaint, which the third-party defendants moved to dismiss "based on documentary evidence, the statute of limitations and failure to state a claim." The third-party defendants subsequently moved to dismiss based on a forum selection clause. The court denied the motion, explaining:

The court denies the motion to dismiss the third-party action based upon the Contract's forum selection clause because it violates the single motion rule. CPLR 3211(e) provides that "at any time before service of the responsive pleading is required, a party may move on one or more of the grounds set forth in subdivision (a), and no more than one such motion shall be permitted. A motion to dismiss based on a forum selection clause is a motion based on documentary evidence. Enforcement of a forum selection clause can be waived by defending an action on the merits.

Here, third-party defendants previously moved to dismiss pursuant to CPLR 3211(a)(l) without raising the forum selection clause. They cannot make a second motion to dismiss based upon documentary evidence. They waived the right to enforce the clause by making the motion to dismiss on the merits without raising the forum selection clause.

(Internal quotations and citations omitted) (emphasis added).