Fourth Department – Forum selection clause: Koike Aronson Inc. v. Bearing Distributors Inc.

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New York State Supreme Court, Appellate Division, Fourth Judicial Department

Forum selection clause

Offer and counteroffer – Transactional chain

Koike Aronson Inc. v. Bearing Distributors Inc.

CA 21-01396

Appealed from Supreme Court, Wyoming County

Background: The plaintiff commenced a breach of warranty action in New York but moved to dismiss the complaint on the ground that the parties’ underlying agreement included a form selection clause requiring litigation in Ohio. The plaintiff appealed from the grant of the motion.

Ruling: The Appellate Division reversed. The court noted that the rationale upon which the lower court concluded that the forum selection clause had become part of the agreement under UCC 2-207 was the final form in the transactional chain constituted a counteroffer by the defendant that the plaintiff fully accepted by performance. However, the Appellate Division held that the defendant’s order confirmation form was not a counteroffer the terms of which were accepted by the plaintiff’s performance.

Ryan K. Cummings, of Hodgson Russ, for the plaintiff-appellant; Brian J. Slipakoff, of Duane Morris, for the defendant-respondent.