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

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.