On May 7, 2026, Justice Gomez of the Bronx County Commercial Division issued a decision in J&A Concrete Corp. v. Everest Reins. Co., 2026 NY Slip Op. 26068, holding that a plaintiff was bound by the forum selection clause in the contract on which the plaintiff sued, explaining:
As noted above, CPLR § 510(1) authorizes a change of venue when the county designated by the plaintiff is improper. Thus, a defendant seeking to challenge the chosen venue on grounds that it is improper must ordinarily comply with CPLR § 511, which requires that a demand to change venue be interposed with or prior to the service of an answer and that a motion for a change of venue be made within fifteen days thereafter. The time period prescribed by CPLR § 511 is not merely directory but requires strict compliance. Failure to comply with the mandates of CPLR § 511, particularly the timing requirements for making a motion to change venue, mandates denial of a defendant’s motion to change venue.
[P]ursuant to CPLR § 501, a written agreement fixing place of trial, made before an action is commenced, shall be enforced upon a motion for change of place of trial. Accordingly, it is well settled that parties to a contract may freely select a forum which will resolve any disputes over the interpretation or performance of the contract and such clauses are prima facie valid and enforceable unless shown by the resisting party to be unreasonable, or unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court.
Accordingly, parties, by agreement, can choose to venue an action in state court, federal court, which part of the state, namely, the county, where a dispute shall be heard, or which state to venue an action.
Unlike other motions seeking to change the venue of an action because the venue chosen is improper, when the venue change sought is pursuant to CPLR § 501, namely that an agreement between the parties prescribes a different venue, the portion of CPLR § 511(a) requiring service of a demand to change venue prior to, or with an answer is not required and as such, rather than 15 days from the service of the foregoing demand, a motion to change venue need only be made within a reasonable time after commencement of the action.
When a defendant makes a motion seeking to change the venue pursuant to CPLR § 510(1), ostensibly, the court must first determine, given the type of action, what venue provision governs and what constitutes proper venue. Thereafter, it is defendant’s burden to establish that given the type of action, the venue chosen was improper thereby warranting a change in venue in order to avoid a change of venue, the plaintiff must then demonstrate that the venue chosen was proper. Once the court determines that plaintiff has selected an improper venue and that defendant has complied with CPLR § 511, it should grant a defendant’s motion to change venue.
A defendant’s motion may be denied and the improperly picked venue retained if plaintiff demonstrates that the venue chosen serves a cognizable purpose, such as the convenience of material witnesses. However, when the plaintiff seeks denial of the defendant’s motion to change venue while concomitantly seeking either to retain an improper venue or seeks a discretionary venue change, such relief must be requested by cross-motion and failure to cross-move mandates the grant of defendant’s motion.
Lastly, it is well settled that a plaintiff forfeits the right to select the venue in an action if he/she chooses an improper venue in the first instance. Furthermore, a plaintiff’s failure to respond to a defendant’s demand to change venue, militates in favor of change of venue to the venue selected by the defendant.
Here, the subcontract between plaintiff and Morganti expressly requires that, with respect to any action against Morgaanti arising from the work governed by the subcontract, any action has to be brought in Albany County. To be sure, Section 29 states any action or proceeding arising out of this Agreement shall be commenced only in the Supreme Court of the State of New York in the County of Albany. Moreover, the subcontract contains a merger clause, namely, Section 27, which states that the subcontract is the entire agreement between the parties hereto with respect to the matters covered herein. No other agreement, representations, warranties, or other matters, oral or written, shall be deemed to bind the parties hereto.
Accordingly, this action against Morganti, seeking to litigate the latter’s alleged breach of the subcontract, falls within the ambit of Section 29, and should have been brought in Albany County.
. . .
Here, where the subcontract’s venue provision is clear and unambiguous, prescribing venue in this action against Morganti in Albany, the venue chosen by plaintiff violates the subcontract and therefore, violates CPLR § 501. Thus, because the venue chosen by plaintiff as against Morganti is improper, Morganti’s motion must be granted as a matter of right pursuant to CPLR § 510(1).
(Internal quotations and citations omitted).