On September 12, 2023, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Mancini Earth & Pipe LLC v. Seamless Capital Group, LLC, 2023 NY Slip Op. 33250(U), holding that a non-mutual forum selection clause did not create jurisdiction over a defendant in New York, explaining:
It is well settled that the parties to an agreement may freely select any forum to resolve any dispute regarding the interpretation or performance of the agreement. Further, a forum selection clause is prima facie valid unless it is shown by the challenging party to be unreasonable, 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. In this case the agreement states that any suit, action or proceeding arising. hereunder or the interpretation, performance· or breach of this Agreement, shall, if Buyer so elects; be instituted in any court sitting in NY. Thus, by its very terms the agreement only requires the buyer, the defendant in this case to commence any action in New York. There is no similar language authorizing the seller plaintiff to utilize New York courts pursuant to the forum selection clause. The fact the clause is non-mutual does not render it invalid. Therefore, the plaintiffs cannot avail themselves of the forum selection clause and will be required to demonstrate jurisdiction utilizing the long arm statute.
(Internal quotations and citations omitted).