Alwinseal, Inc. v. Travelers Indemnity Co.

61 A.D.2d 803, 402 N.Y.S.2d 33, 1978 N.Y. App. Div. LEXIS 10241

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 1978
• Status: Published

Opinion

In an action on a surety bond for the benefit of claimants supplying labor and materials, plaintiff appeals from an order of the Supreme Court, Nassau County, entered October 3, 1977, which granted, upon certain conditions, defendant’s motion to dismiss the complaint based on a forum selection clause contained in a surety bond. Order affirmed, with $50 costs and disbursements. The defendant issued a surety bond which has as its principal the general contractor for a construction project located in New Jersey. The bond contained a forum selection clause which required that any suit or action on the bond be brought in the State where the project was located (i.e., New Jersey). The bond was incorporated by reference into the subcontract entered into between the plaintiff and the general contractor. The subcontract also contained a clause specifying that it was to be governed by the laws of New Jersey. That the plaintiff is a New York corporation is "an important factor to be considered” when determining the proper forum for this action (see Silver v Great Amer. Ins. Co., 29 NY2d 356, 361). However, other factors lead us to conclude that New Jersey is the more appropriate forum. The most substantial of these factors is the forum selection clause contained in the surety bond, and incorporated into the subcontract. "[B]y their own exercise of discretion in agreeing upon a forum, the parties themselves obviated consideration of inconvenience to a party or witness” (Young & Co. v Leong, 53 AD2d 515, 516, app dsmd 40 NY2d 984). Therefore, the dismissal of this action, on the conditions set by Special Term, was proper. Martuscello, J. P., Rabin, Cohalan and Hawkins, JJ., concur.