Upon the reading and filing of the following papers in this matter: (1) Order to Show Cause (#

001) by the plaintiff, signed January 13, 2006 (MacKenzie, J), and supporting papers; (2) Notice of Cross Motion (#

002) by the defendant Nihonbashi dated February 9, 2006, and supporting papers; (3) Order to Show Cause (#

003) by counsel for the plaintiff, signed May 19, 2006 (Mayer, J.), and supporting papers; (4) Order to Show Cause (#

004) by the plaintiff, signed November 29, 2006 (Mayer, J.), and supporting papers; (5) Affirmations in Opposition; (6) Reply Affirmations; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the motion (001) by Order to Show Cause of the plaintiff, signed January 13, 2006 (MacKenzie, J.), which seeks an order appointing a receiver of all the property of the defendant, KRL Enterprises, Ltd. ("KRL"), is hereby denied as moot, given the Court's Decision and Order set forth herein on the cross-motion (002) by defendant, Nihonbashi Partners, Inc. ("Nihonbashi"); and it is further

ORDERED that the cross-motion (002) by defendant, Nihonbashi, which seeks an order pursuant to CPLR §2219 and CPLR §327 dismissing or staying the action in its entirety or, in the alternative, dismissing or staying the action as to Nihonbashi, is hereby granted, and the action is dismissed in its entirety for the reasons set forth herein; and it is further

ORDERED that the motion (003) by order to show cause of Wolf & Wolf, former attorneys for the plaintiff, signed May 19, 2006 (Mayer, J.), which seeks an order permitting that firm to withdraw as counsel for the plaintiff is hereby denied as moot, the plaintiff having already retained the services of new counsel, Alan Jay Martin, Esq., 1400 Old Country Road, Suite 301, Westbury, New York 11590, and said counsel having appeared on this motion and in court on December 19, 2006 by Feldman, Rudy Kirby & Farquharson, P.C., of counsel; and it is further

ORDERED that the motion (004) by order to show cause of the plaintiff, signed November 29, 2006 (Mayer, J.), which seeks an order enjoining the defendants from selling or transferring any shares of KRL, pending the Court's decision on the plaintiff's prior motion (001), is hereby denied as moot, given the Court's decision from the bench on December 19, 2006, which denied the continuation of the Temporary Retraining Order set forth in the November 29, 2006 Order to Show Cause, and given the Decision and Order set forth herein; and it is further

ORDERED that counsel for the defendant Nihonbashi shall serve a copy of this Order upon all parties or their attorneys if represented by counsel, within ten (10) days from the date of [*2]this Order pursuant to CPLR §2103(b)(1),(2) or (3) and shall thereafter file the affidavit(s) of service with the Suffolk County Clerk.

In this action, the plaintiff's complaint ^[FN1] essentially alleges fraud, misrepresentation and breach of contract against the defendants in connection a with a May 11, 2005 Securities and Asset Purchase Agreement between the plaintiff and Nihonbashi regarding the sale of KRL by the plaintiff to Nihonbashi. The plaintiff also alleges breach of a corresponding Consulting Agreement between those parties. In his motion (001), the plaintiff claims that a post-sale receiver should be appointed to preserve the assets of KRL on the alleged grounds that the defendants are collectively diminishing KRL's value by, inter alia, refusing to adequately use the plaintiff's consulting services, all to the detriment of KRL and the plaintiff. The defendants deny such allegations.

In his affidavit in support of his motion, the plaintiff specifically acknowledges that "as a result of [his] negotiations on May 11, 2005, [he] sold [his] business to Nihonbashi Partners Inc." Therefore, it would appear that at the time of the commencement of this motion, the plaintiff was not an owner. In its cross-motion to dismiss, Nihonbashi asserts that the plaintiff is precluded from even bringing this action in New York, since the parties' agreements which are the subject of this litigation contain a forum selection clause, designating Connecticut as the forum where any disputes arising from the agreements must be litigated.

In addition to the Securities and Asset Purchase Agreement and the Consulting Agreement, the plaintiff also submits a Securities Purchase Option Agreement, all of which were apparently signed by the plaintiff on May 11, 2005. The Securities and Asset Purchase Agreement (which is referred to in the Consulting Agreement) and the Securities Purchase Option Agreement both contain the identical provision regarding the applicable law and the exclusive forum in which disputes related to the agreements would be heard. In this regard, Article 11.8 of those agreements states as follows:

This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Connecticut (excluding its conflicts of laws principles). The parties agree that all actions or proceedings arising in connection with the Agreement shall be tried and determined only in the state and federal courts located in City of Bridgeport, State of Connecticut. Each of the parties waives any right it may have to assert the doctrine of forum non conveniens or to object to venue in connection with any such action or proceeding brought in the state or federal courts located in the City of Bridgeport, State of Connecticut. (emphasis in original).

It is well settled that forum selection clauses are prima facie valid (Hirschman v National Textbook Co., 184 AD2d 494, 584 NYS2d 199 [2d Dept 1992]). Forum selection clauses are [*3]enforced because they provide certainty and predictability in the resolution of disputes (Brooke Group Ltd. v JCH Syndicate 488, 87 NY2d 530, 640 NYS2d 479 [1996]). In order to set aside such a clause, a party must show either that enforcement would be unreasonable and unjust or that the clause is invalid because of fraud or overreaching, to the extent that a trial in the forum designated in the contract would be so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of his or her day in court (Brooke Group Ltd. v JCH Syndicate 488, 87 NY2d 530, 640 NYS2d 479 [1996]; Hunt v Landers, 309 AD2d 900, 766 NYS2d 384 [2d Dept 2003]). Absent a showing that it should be set aside, a forum selection clause will control (Hirschman v National Textbook Co., supra ; Koko Contracting, Inc. v Continental Environmental Asbestos Removal Corp., 272 AD2d 585, 709 NYS2d 825 [2d Dept 2000]).

Here, plaintiff Karol has failed to establish the requisite showing necessary to set aside the forum selection clause set forth in the parties' agreements. Therefore, Nihonbashi's cross-motion to dismiss the plaintiff's case in New York on the basis of the forum selection clause is granted. This does not necessarily preclude the plaintiff from seeking to have his day in court in Connecticut, the forum he agreed to litigate his disputes in. Further, since the claims against Nihonbashi are inextricably interwoven with the claims against the other defendants, and because of the comprehensive nature of the forum selection clause(s), judicial economy requires that all claims against all defendants be litigated in accordance with the terms of that forum selection clause(s).

This constitutes the Decision and Order of the Court. In view of this Order, the Court need not address any other issues set forth in the parties' motion papers.

PETER H. MAYER, J.S.C.