Upon the foregoing papers, it is ordered that this motion is decided as follows:

Plaintiff Orix Financial Services, Inc. ("Orix") moves for summary judgment in lieu of complaint. Defendant William T. Graham cross-moves to dismiss under CPLR 327 upon the ground that this is not a convenient forum. Defendants Patriece Rhett and Jerome Rhett appear pro se, and they also contend that the action is more appropriately conducted elsewhere. For the reasons below, the motion is denied and the cross-motion is granted.

Graham purchased a tractor-trailer truck from a dealer in Savannah, Georgia, pursuant to a conditional sale contract note dated August 30, 1998. On the same day, the note was assigned to Orix's predecessor, which was located in Kennesaw, Georgia. Graham transferred his interest in the truck to the Rhetts in September 2000. Graham and the Rhetts reside in South Carolina. Graham states that he is seventy years old, and that his sole source of income is social security. His wife, age sixty-five, also receives social security and has a part-time job. He claims that litigating this claim in New York would present an insurmountable financial burden. He also alleges meritorious defenses, including a representation by Orix that it would not pursue any claims against him. Orix does not meaningfully refute Graham's claim of a meritorious defense. It submits a copy of a letter agreement between Orix and Graham dated October 6, 2003, in which the most important terms, i.e., the amount Orix allegedly agreed to accept in satisfaction of all claims against him, have been omitted. This letter is not the agreement sued upon, however, and significantly undercuts Orix's contention that there are no defenses to its claim, and that this [*2]action is appropriately brought against Graham under CPLR 3213. If Orix is to be believed regarding the alleged October 2003 agreement, it is not possible to ascertain without resort to extrinsic evidence what Graham might owe Orix pursuant to the 1998 and 2000 documents referenced in the motion. If anything, Orix's opposition to Graham's motion merely suggests that it does not keep its word with customers. The Rhetts too describe conversations with Orix employees to the effect that upon the 2001 replevin and sale of the truck, Orix would not pursue them.

Orix also contends that the transfer agreement, whereby Graham transferred his interest in the truck to the Rhetts, provides that the parties agree to the exclusive venue and jurisdiction of any court in New York regarding any matter arising under that agreement except for an action for replevin. Orix correctly points out that the South Carolina statute on which Graham and the Rhetts rely does not appear applicable to the underlying transaction. But Orix does not make a showing sufficient to defeat Graham's argument that this is an inconvenient forum for this dispute. There simply is no connection between this forum and the underlying dispute apart from a contractual provision Orix drafted selecting this venue.

Under CPLR 327 (a), the court is authorized to dismiss an action where it finds that, in the interest of substantial justice, it should be heard in another forum. CPLR 327(b) provides that where there is a contractual agreement to which General Obligations Law § 5-1402 applies, then the court may not dismiss due to inconvenient forum. However, this claim is not covered by GOL § 5-1402 because the aggregate value of the contractual undertaking is less than $1,000,000. The court finds that the interests of substantial justice are best served by granting the cross-motion to dismiss so this action may be heard in South Carolina. Accordingly, it hereby is

ORDERED that the motion for summary judgment in lieu of complaint is denied; and it further is

ORDERED that defendant Graham's cross-motion to dismiss under CPLR 327 is granted, and the action is dismissed, and the Clerk of the Court is directed to enter judgment accordingly.

Dated: March 23, 2006

ENTER:

_________S/___________

J.S.C