On August 4, 2022, the Fourth Department issued a decision in Koike Aronson, Inc. v. Bearing Distribs., Inc., 2022 NY Slip Op. 04834, holding that an order confirmation form is not a counteroffer that, if accepted by performance, incorporates the form’s terms into the parties’ agreement, explaining:
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 Lorbrook Corp. v G & T Indus. (162 AD2d 69, 74-75 [3d Dept 1990]). We agree with the Third Department’s analysis and holding 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.