Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Geoffrey D. Wright, J.), dated April 11, 2007, which granted defendant's motion to vacate a default judgment and dismiss the complaint.

Per Curiam.

Order (Geoffrey D. Wright, J.), dated April 11, 2007, modified to reinstate the complaint and remand for further proceedings; as modified, order affirmed, without costs.

Although the court properly vacated the defendant's unintended default in answering the complaint, it erred in going further and dismissing the action outright on the basis of paragraph 17 of the parties' contractual agreement. That paragraph, which provided that Pennsylvania law would govern the agreement and allowed service on plaintiff in Pennsylvania, constituted a choice of law and permissive service of suit clause and not, as defendant contends, a mandatory forum selection clause (see Brooke Group Ltd. v JCH Syndicate 488, 87 NY2d 530 [1996]; Barden Solutions, Inc. v Bassetti, 38 AD3d 1199 [2007]; cf. Boss v American Express Fin. Advisors, Inc., 6 NY3d 272 [2006]). The remaining aspects of defendant's dismissal motion, including its personal jurisdiction and Statute of Limitations arguments, are not determinable on the present record.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 05, 2009