On June 1, 2005, the parties entered into an agreement whereby plaintiff was to provide janitorial, lawn care and snow removal services to defendant at certain specified locations in Clinton, Jefferson, Essex, Franklin, St. Lawrence and Warren Counties. The agreement contained the following forum selection clause:

"All actions under this [a]greement shall be brought in a court of competent subject matter jurisdiction in the County of Nassau in the State of New York and both parties agree to accept the personal jurisdiction of such court."

Defendant subsequently terminated the contract, effective May 31, 2008. On June 11, 2008 and June 12, 2008, plaintiff sent defendant two separate invoices in the amount of $27,819.17 and $12,691.00, respectively, both of which relate to work done prior to termination of the agreement. These invoices went unpaid, apparently because defendant was not satisfied with the services rendered. Plaintiff thereafter commenced this action in Clinton County to recover the amount due and owing. Issue has now been joined. Presently before the Court is defendant's motion to transfer venue to Nassau County and plaintiff's cross motion to retain venue in Clinton County.

"Forum selection clauses are prima facie valid and will not be set aside unless the party opposing the clause demonstrates that the enforcement of such would be unreasonable and unjust or that the clause is invalid because of fraud or overreaching, such that a trial in the contractual forum 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" (Harry Casper, Inc. v Pines Assoc., L.P., 53 AD3d 764, 764-765 [2008] [internal quotation marks and citations omitted]; see CPLR [*2]501; Brooke Group v. JCH Syndicate 488, 87 NY2d 530, 534 [1996]; Tatko Stone Prods., Inc. v Davis-Giovinzazzo Constr. Co., Inc., 65 AD3d 778, 779 [2009]).

Here, defendant's principal place of business is in Nassau County and plaintiff's principal place of business is in Clinton County. The agreement was executed by Herman J. Trombley — plaintiff's chief executive officer and owner — in Clinton County and returned to defendant via mail. Trombley, in fact, never "travel[ed] to Nassau County for any reason related to the [a]greement." Further — and more significantly — Trombley is 72 years of age and suffers from several health problems. In 2006, he suffered a serious cardiac event and underwent cardiac surgery. Then, in a follow up appointment, he learned of a tumor on his left kidney. This tumor proved to be cancerous and he later had the kidney removed. Trombley also suffers from pain in his left knee as the result of a 1997 accident when a riding mower fell on him. He is not a candidate for knee replacement surgery because of his heart condition and is on pain management medication. Trombley states as follows: "I can only sit or stand for short periods of time. I am unable to get out of bed until early afternoon because of the pain and stiffness. I am unable to travel more than a few miles from my home." Trombley's pain management physician and primary physician have each submitted affidavits opining that "a 660 mile round-trip journey to Nassau County could be potentially harmful to his health." Patti Whalen — plaintiff's secretary — is Trombley's fiancé and sole caretaker. She too has submitted an affidavit stating that "there is no way [Trombley can] physically make the arduous 660 mile round-trip journeys to Nassau County." Whalen further states that "[she] cannot be away from [him] since [she is] his sole caretaker." Finally, aside from Scott Schwartz — defendant's president — all relevant witnesses reside in and around Clinton County. In this regard, it appears undisputed that defendant hired three of plaintiff's employees immediately after termination of the agreement to continue to provide janitorial, lawn care and snow removal services to the locations specified in the agreement.

Under the circumstances, the Court finds that enforcement of the forum selection clause would be unreasonable and unjust, effectively depriving plaintiff of its day in court (see 3H Enters. v Bennett, 276 AD2d 965, 966-967 [2000], lv denied 96 NY2d 710 [2001]; see also U.S. Mdse., Inc. v L & R Distribs., Inc., 122 AD3d 613, 614 [2014]). Accordingly, defendant's motion to transfer venue to Nassau County is denied and plaintiff's cross motion to retain venue in Clinton County is granted.

Therefore, having considered the Affidavit of Scott Schwartz with exhibits attached thereto, sworn to June 24, 2014, submitted in support of the motion; Memorandum of Law of Ronald J. Briggs, Esq. dated June 25, 2014, submitted in support of the motion; Affidavit of Herman J. Trombley with exhibits attached thereto, sworn to July 11, 2014, submitted in support of the cross motion and in opposition to the motion; Affidavit of Patti Whalen, sworn to July 11, 2014, submitted in support of the cross motion and in opposition to the motion; Affidavit of Honorio T. Dispo, Jr., M.D., sworn to July 14, 2014, submitted in support of the cross motion and in opposition to the motion; Affidavit of Glenn S. Schroyer, M.D., sworn to July 19, 2014, submitted in support of the cross motion and in opposition to the motion; Memorandum of Law of James M. Brooks, Esq., dated July 17, 2014, submitted in support of the cross motion and in opposition to the motion; Reply Memorandum of Law of John J. Kenefick, Esq., dated July 24, 2014, submitted in support of the motion and in opposition to the cross motion; and oral [*3]argument having been held on February 25, 2015 with Allison M. McGahay, Esq. appearing on behalf of plaintiff and Patrick J. McFarlin, Esq. appearing on behalf of defendant, it is hereby

ORDERED that defendant's motion to transfer venue to Nassau County is denied in its entirety; and it is further

ORDERED that plaintiff's cross motion to retain venue in Clinton County is granted; and it is further

ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied.

The original of this Decision and Order has been returned to counsel for plaintiff for filing and service with notice of entry. The Notice of Motion dated June 25, 2014 and Notice of Cross Motion dated July 17, 2014 have been filed by the Court together with the above-referenced submissions.

Lake George, New York

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ROBERT J. MULLER, J.S.C.