On July 23, 2024, Justice Masley of the New York County Commercial Division issued a decision in Feld v. Viceroy Devices Corp., 2024 NY Slip Op. 32583(U), holding that a defendant waived the right to rely on a forum selection clause by participating in an action, explaining:
Defendants’ motion to dismiss the action, because it belongs in Utah based on a forum selection clause in a Nondisclosure Agreement (NDA) is rejected. Defendants waived the defense by participating in this action since May 4, 2023. Defendants fail to cite any law otherwise. Defendants’ request to amend the complaint to add such a defense to their answer is improper in the absence of a notice of motion or cross motion. Defendants’ statement in support of the request that the answer was only filed a few weeks ago, is false. Counsel’s excuse that he did not have the NDA at the time the answer was filed is undermined by the counterclaim in the answer for breach of the NDA. Defendant’s reliance on CPLR 3211 (a) (2) is also procedurally incorrect. An enforceable forum selection clause does not deprive a New York Court of subject matter jurisdiction over an action brought here in contravention of the clause. A defendant looking to enforce a forum selection clause should employ CPLR 3211 (a) (1).
(Internal citations omitted).