Third-Party Plaintiff, Courts Caribbean commenced an action in this Court against Third-Party Defendant, Somerton Home Furnishings, Inc. ("Somerton"), to recover damages for personal injuries, providing two causes of action: (1) common law indemnification based upon theories of product liability and (2) contractual indemnification. Somerton moves to dismiss the Third-Party Complaint in its entirety.

Facts

Regal Forest Holding Co. Ltd. is a foreign corporation and conducts business in the United States under the name Unicomer USA Holding. Unicomer USA Holding does business in New York under the name Courts Caribbean. Courts Caribbean is a domestic corporation. Somerton is a California corporation and a wholesale seller of home furnishings. Somerton has done extensive business with Courts Caribbean since 2006. In each business transaction, [*2]Somerton has provided Courts Caribbean with an invoice that included the Standard Terms and Conditions. Courts Caribbean has never objected to this procedure. The Standard Terms and Conditions contain a forum selection clause that states: "7(d). Any action or proceeding brought to enforce, or which otherwise arises out of or relates to, the Agreement container herein, shall be brought and maintained only in a court of competent jurisdiction in Orange County, California. Buyer consents to jurisdiction and venue in the state and federal courts located in Orange Country, California."

On or around October 13, 2008, Courts Caribbean ordered about 200 pieces of furniture to be delivered to their New Jersey facility. Included in this order was a product called the "Rhythm Queen Bed" (Rhythm bed). Plaintiff, Patricia Bentley, commenced an action in this Court against Courts Caribbean for negligence. Ms. Bentley alleges that while sitting on the Rhythm bed on or about November 9, 2008, the bed broke and/or collapsed, resulting in her subsequent injuries. The bed involved was designed, manufactured, tested, inspected, labeled, marketed and/or distributed by Somerton. Somerton represented that the bed was safe, of marketable quality, and fit for the ordinary purpose for which the product was intended to be used.

If Ms. Bentley is able to prove that she sustained injuries as a result of negligence other than her own, Courts Caribbean argues that such negligence would be solely that of Somerton. Courts Caribbean further alleges that Somerton was negligent in the design, manufacturing, testing, inspection, maintenance, labeling, marketing, distribution, and/or sale of the bed. Courts Caribbean asserts that Somerton was in breach of express and implied warranties regarding the Rhythm bed. Courts Caribbean further alleges that, pursuant to the contract, Somerton agreed to "indemnify, defend, and save harmless" Courts Caribbean from "all loss, damage, injury or death, or claims, including attorney's fees and court costs".

In its response to dismiss the Third Party Complaint in its entirety, Somerton argues that New York courts have enforced forum selection clauses where they are contained in invoices exchanged between parties in sale-of-goods transactions. See F.W. Myers & Co. Inc. v. Gerald Indus., 178 AD2d 890, 891 (3d Dep't 1991). Somerton argues that a forum selection clause should not be set aside unless there is proof that enforcement would be unreasonable, unjust or the clause is invalid due to fraud or overreaching. See e.g., Horton v. Concerns of Police Survivors, 62 AD3d 836, 836-37 (2d Dep't 2009) With regard to Courts Caribbean's second cause of action, Somerton argues that Courts Caribbean fails to state a claim upon which relief can be granted because there was no agreement between Somerton and Courts Caribbean providing indemnification from any loss. Somerton argues that a party to a claim cannot state a claim for contractual indemnity absent an indemnity clause within the contract, and Courts Caribbean's cause of action must fail as a matter of law. See Gutierrez v. Broad Fin.Ctr., LLC, 2009 Slip Op 52805U, 5-6 (NY Sup. Ct. Bronx County 2009).

Discussion

The issue is whether the forum selection clause in the Agreement applies to a third-party. In the present case, Courts Caribbean admits the existence of a valid agreement, but filed suit in New York, without regard to the forum selection clause. Courts Caribbean never objected to the Standard Terms and Conditions, which included the clause selecting Orange County as the forum for any action or proceeding arising out of or relating to the Agreement. Courts Caribbean has not alleged any unreasonability regarding the Agreement's forum selection clause. It is well-settled that a contractual forum selection clause is prima facie valid and enforceable unless it is shown to be unreasonable, unjust, against public policy, invalid due to fraud or overreaching, or if the challenging party will be deprived of its day in court. See Stravalle v. Land Cargo, 39 AD3d 735, 835 N.Y.S.2d 606 (2nd Dep't 2007) (citing LSPA Enter., Inc. v. Jani-King of NY, Inc., 31 AD3d, 394, 395, 817 N.Y.S.2d 657).

Section 7(d) of the Standard Terms and Conditions requires that "any action or proceeding ... to enforce ... the Agreement" be brought in Orange County, California. The forum [*3]selection clause is broad enough to encompass Court Caribbean's claim and their assertion that the forum selection clause was not intended to apply to third party claims is without merit. Courts Caribbean did not allege that the contract was unreasonable, unjust, against public policy, invalid due to fraud or overreaching, or that they would be deprived of their day in court. Courts Caribbean asserts that the absence of an indemnification clause in the Agreement invalidates the forum selection clause for third party claims; however, Section 6(h) provides that "[Somerton] is not liable for any consequential damages to buyer no matter how arising, except as herein specifically provided, company makes no warranties, express or implied, of merchantability, fitness for purpose or otherwise, [Somerton's] liability for breach of any warranty or contract, with respect to such company products or their replacement, at company's option. In no event shall company have any responsibility or liability for any direct, indirect, incidental or consequential damages incurred by buyer." While there is no indemnification clause in the Agreement, this clause is broad enough to encompass third party claims. As a result, Courts Caribbean's second cause of action for contractual indemnification is without merit.

The possibility that Courts Caribbean could be sued by a customer in relation to a product manufactured by Somerton was entirely foreseeable. The forum selection clause is valid and enforceable, and the third party complaint will be dismissed for lack of jurisdiction. If it so chooses, Courts Caribbean may file suit in the appropriate forum.

This constitutes the decision and order of the court.

E N T E R__________________________________

yvonne lewis, J.S.C.