IndyMac Bank, F.S.B. v. LaMattina

The court properly declined to consider the forum selection clause since appellants failed to assert a jurisdictional defense in their motion (see Montcalm Publ. Corp. v Pustorino, 125 AD2d 188 [1986]), and only raised the effect of the clause for the first time in paragraph 34 of their attorney’s 37-paragraph reply affirmation (see Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992]).

Ancona was a “seller” pursuant to the unambiguous seller guide incorporated by reference in the customer agreement, and was subject to the warranties and representations therein. Appellants’ breach was…