Jerez v. Jd Closeouts, LLC

943 N.Y.S.2d 392 (2012)

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Nature of the Case

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Facts

Ds sell 'closeout' merchandise over the Internet. P received an e-mail solicitation from Ds offering for sale 50,000 pairs of white tube socks. D's Web site represented that its closeout merchandise 'should all be first quality . . . excess inventory' from 'name-brand companies.' P alleges that it agreed to purchase 50,000 pairs of tube socks from defendants for an agreed price of $6,000, plus $1,146 in shipping costs. Upon inspection of the tube socks following delivery, P asserts that it determined that the socks 'were defective,' were not 'first quality,' and 'in fact are useless and unsellable.' P also alleges that only 34,800 pairs, rather than 50,000 pairs, were delivered. Ds refused to accept a return or to resolve the matter. P sued D in New York under long-arm jurisdiction. Ds seek dismissal on the ground that 'a valid and enforceable forum selection clause requires jurisdiction of any disputes in Broward County, Florida.' D claims that 'The 'Terms of Sale' has a hyperlink that directs the viewer to the terms of all sales, including disclosures, return policy, and legal policy. 'That page titled 'Sale Terms' states that 'in the event that an irresolvable situation arises, any litigation will take place in Broward County, in the State of Florida.' P claims that the 'forum selection' provision found on Ds' Website 'is not part of the contract between the parties.' P asserts that he has 'never seen this language before, and . . . never saw it' when he agreed to purchase tube socks. As his attorney further maintains, the language invoked by defendants is not a true 'forum selection clause.' 'It is simply language buried in the defendant's website that is very difficult to find.'