In a May 24, 2011 decision by Justice Warshawsky the court granted a motion to dismiss based on a forum selection clause in the parties’ contract which required that the action be brought in California. The dispute arose out of the purchase of computer software by a New York computer training school. After the software was installed it became clear that it was not useable for the purpose for which it was purchased.

The license agreement for the software provided that any litigation must be brought in California. The plaintiff argued that the license agreement was not operative because it timely rejected the software under UCC § 2-206 or in the alternative it would be unreasonable to require it to mount a litigation in California. The court rejected both arguments, finding that the forum selection clause was prima facie valid and the suit was required to proceed in California. The court, nevertheless, declined to award defendant its attorneys fees for the motion finding that the court’s determination on the motion was not a determination that defendant was the prevailing party under the underlying dispute.

Computer Career Center, Inc. v Diamond D, Inc., Sup Ct, Nassau County, May 24, 2011, Warshawsky, J, Index No. 21216/10.