On July 13, 2023, Justice Odorisi of the Seventh Judicial District Commercial Division issued a decision in Kalamata Capital Group, LLC v. Crito Logistics, LLC, 2023 NY Slip Op. 32348(U), holding that inconvenience of counsel is insufficient to overcome a choice of venue clause and the plaintiff’s choice of venue, explaining:
Defendants’ venue challenge fails. To begin, Defendants’ motion does not provide the MCAA, or even reference its venue objection waiver clause. As Plaintiff asserts, and per the MCAA, Defendants waived any venue issue. Even if not waived, Defendants’ venue attack does not succeed. As the Fourth Department has decreed:
It is well-accepted policy that forum-selection clauses are prima facie valid. In order to set aside such a clause, a party must show that enforcement would be unreasonable and unjust or that the clause is invalid because of fraud or overreaching, such that a trial in the contractual forum would be so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of his or her day in court.
Besides case-law, CPLR Article 5 governs venue and it provides in relevant part Subject to the provisions of subdivision two of section five hundred ten and section five hundred fourteen of this article, written agreement fixing place of trial, made before an action is commenced, shall be enforced upon a motion for change of place of trial.
Instead of recognizing Section 501, Defendants rely upon Section 510 (3) which allows a different venue when the convenience of material witnesses and the ends of justice will be promoted by the change.
A trial court is afforded a high level of deference when reviewing a motion to change venue. A motion for a change of venue is addressed to the sound discretion of the court, and absent a clear abuse the court’s determination will not be disturbed on appeal. Here, Defendants have not overcome the MCAA’s venue clause, nor do they defeat Plaintiff’s venue choice under the same. As starting point, the MCAA’s venue placement in any New York Court is not infirm as Defendants have not satisfied the standard articulated in Fear & Fear, Inc.
Additionally, Defendants do not make out a case for a transfer under CPLR 510 (3). Unlike other cases where this Court granted a new venue as the MCAA excluded the selected county, the present MCAA is broader and has a statewide scope. Furthermore, there is no sworn proof that material witnesses are inconvenienced. Yes, Plaintiff’s office is located in New York County, and defense counsel’s office is also downstate. However, distance alone, without more, is insufficient to avoid the negotiated, broad MCAA venue clause. This is not to say that a defendant could not never make out a proper CPLR 510 (3) change, but the instant motion does not do so. In sum, Defendants must continue to defend itself here in Ontario County.