Abatement and Revival - Another Action Pending - Florida Action in Discovery Phase was Commenced before New York Action and Involved Broader Set of Parties and Issues - Complaint Providently Dismissed

Courts - Forum Non Conveniens - Compulsory Counterclaim in Prior Pending Florida Action - Enforcement of Forum Selection Clause Unreasonable, Unjust or Potentially Inconsistent with Finding in Florida Action

Order, Supreme Court, New York County (Andrea Masley, J.), entered on or about July 2, 2024, which granted defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (4), unanimously affirmed, with costs.

Supreme Court providently exercised its discretion in dismissing the complaint on the ground that there is a prior pending action in Florida which involves a broader set of parties and issues than the instant action, was commenced before the New York action, and has discovery already underway (see Alvarez & Marshal Valuation Servs., LLC v Solar Eclipse Inv. Fund III, LLC, 216 AD3d 447, 448 [1st Dept 2023]; Syncora Guar. Inc. v J.P. Morgan Sec. LLC, 110 AD3d 87, 96 [1st Dept 2013]).

The forum selection clause in defendant's severance agreement selecting New York as the appropriate jurisdiction does not require a different result. Defendant showed that enforcement of the forum selection clause would be unreasonable or unjust under these circumstances (see British W. Indies Guar. Trust Co. v Banque Internationale A Luxembourg, 172 AD2d 234, 234 [1st Dept 1991]). As found by the Florida court, the plaintiff in that action, CSI IT Holdings, LLC (Holdings), plaintiff's parent company, sued defendant for conduct in alleged breach of non-competition and non-solicitation restrictions in Holdings' LLC Agreement. Accordingly, defendant's counterclaim, alleging that CSI IT, LLC (CSI), plaintiff in this action, and Holdings breached the severance agreement, which partially released him from his non-competition restriction, was compulsory (see Londono v Turkey Creek, Inc., 609 So 2d 14, 19 [Fla 1992]). Thus, Holdings' initiation of the Florida action compelled defendant to litigate to a binding conclusion his counterclaim against Holdings and CSI in a jurisdiction other than the one the parties selected, lest he waive the claim (see Paramount Pictures Corp. v Allianz Risk Transfer AG, 141 AD3d 464, 467-468 [1st Dept 2016], affd 31 NY3d 64 [2018]).

In denying Holdings' and CSI's motion to dismiss defendant's counterclaim on the grounds that Florida was an improper venue based on the forum selection clause in the severance agreement, the Florida court found that Holdings "waived [its] right to enforce the forum selection provision[ ] in the . . . Severance [Agreement]" by instituting the Florida action. This finding further weighs against enforcing the forum selection clause here in order to avoid reaching an inconsistent result (see Buechel v Bain, 97 NY2d 295, 303 [2001], cert denied 535 US 1096 [2002]). Concur—Kern, J.P., Kennedy, Kapnick, Gesmer, Shulman, JJ.