F G II, Inc. v. Saks Inc.

Order, Supreme Court, New York County (Herman Cahn, J.), entered August 18, 2006, which granted defendant’s motion to dismiss plaintiff’s first amended complaint, unanimously affirmed, with costs. The IAS court appropriately dismissed the first amended complaint, where plaintiff’s claims against defendant were governed by the Vendor Standards Manual which controlled the contractual relationship between the parties and contained a forum selection clause requiring the action to be instituted in Jefferson County, Alabama (Boss v American Express Fin. Advisors, Inc., 15 AD3d 306 [2005], affd 6 NY3d 242 [2006]). Defendant did not waive the right to bring the instant motion pursuant to CELR 327 by failing to raise the issue in its pre-answer motion to dismiss (see Harp v Malyn, 166 AD2d 848, 849 [1990]), and defendant’s answer also set forth a sufficient recitation of its position to avoid any surprise to plaintiff (CPLR 3018 [b]). Concur—Marlow, J.P., Nardelli, Williams and McGuire, JJ.