131 A.D.2d 380 | N.Y. App. Div. | 1987
Order of the Supreme Court, New York County (Francis N. Pécora, J.), entered July 30, 1986, which denied defendant’s motion to dismiss the action pursuant to CPLR 3211 (a) (8) and (4) or in the alternative to stay the action until the resolution of a lawsuit pending in the State of Texas or to dismiss the action pursuant to CPLR 327 on the ground of forum non conveniens, is unanimously modified, on the law and facts and in the exercise of discretion, solely to the extent of granting defendant’s motion for a stay of the instant action pending resolution of the Texas action, and otherwise affirmed, without costs or disbursements.
Thereafter, defendant defaulted on the first payment due under the note and plaintiff was required to pay the amount of $6,363.49 to the assignee, LaSalle National Bank, in Texas. This action seeks reimbursement from defendant for that payment.
Defendant is a sophisticated investor who must be presumed to have read all the documents- including the provision allowing "[a]ny action arising out of * * * th[e] Indemnification and Pledge Agreement [to] be brought in any state or federal court of competent jurisdiction in any County in the State of New York”. As we have previously observed in an action involving a forum selection clause, "[i]n the absence of a showing of contrary public policy, or fraud, or mistake, the meeting of the minds expressed in the contract should ordinarily be enforced” (Young & Co. v Leong, 53 AD2d 515, 516, appeal dismissed 40 NY2d 984; see also, The Bremen v Zapata Off-Shore Co., 407 US 1). The Supreme Court, therefore, correctly denied the motion to dismiss on the ground of lack of jurisdiction over the person of defendant and forum non conveniens.
That court found "no substantive allegations with respect to National Union in the original and amended Texas petitions.” However, there is an allegation in that Texas action that National Union was on actual notice of an impairment by the general partners of the collateral securing these and the other promissory notes and, nevertheless, made payments of princi
National Union is already actively appearing in the Texas action, where defendant Weir’s obligation to pay the promissory note which underlies National Union’s surety is a contested issue. We find, therefore, that convenience and judicial economy would be better served if National Union’s claim against Weir were filed as a counterclaim in the Texas action, and grant defendant’s motion to stay this action for that purpose. Concur—Sandler, J. P., Carro, Asch, Milonas and Rosenberger, JJ.