IndyMac Bank, F.S.B. v. LaMattina

Appellate Division of the Supreme Court of New York

IndyMac Bank, F.S.B. v. LaMattina

49 A.D.3d 395, 853 N.Y.2d 341

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 18, 2008

StatusPublished

This text of 49 A.D.3d 395 (IndyMac Bank, F.S.B. v. LaMattina) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

IndyMac Bank, F.S.B. v. LaMattina, 49 A.D.3d 395, 853 N.Y.2d 341 (N.Y. Ct. App. 2008).

Pincite

Opinion

The court properly declined to consider the forum selection clause since appellants failed to assert a jurisdictional defense in their motion (see Montcalm Publ. Corp. v Pustorino, 125 AD2d 188 [1986]), and only raised the effect of the clause for the first time in paragraph 34 of their attorney’s 37-paragraph reply affirmation (see Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992]).

Ancona was a “seller” pursuant to the unambiguous seller guide incorporated by reference in the customer agreement, and was subject to the warranties and representations therein. Appellants’ breach was sufficiently alleged. The claim for negligent retention of a closing agent was viable. Concur—Lippman, P.J., Gonzalez, Sweeny and Catterson, JJ.

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The court properly declined to consider the forum selection clause since appellants failed to assert a jurisdictional defense in their motion (see Montcalm Publ. Corp. v Pustorino, 125 AD2d 188 [1986]), and only raised the effect of the clause for the first time in paragraph 34 of their attorney’s 37-paragraph reply affirmation (see Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992]).

Ancona was a “seller” pursuant to the unambiguous seller guide incorporated by reference in the customer agreement, and was subject to the warranties and representations therein. Appellants’ breach was sufficiently alleged. The claim for negligent retention of a closing agent was viable. Concur—Lippman, P.J., Gonzalez, Sweeny and Catterson, JJ.

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Bluebook (online)

49 A.D.3d 395, 853 N.Y.2d 341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/indymac-bank-fsb-v-lamattina-nyappdiv-2008.

Opinion

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