## Facts

- Two New York corporations designing luxury pet carriers and handbags contracted with an Italian manufacturer to produce leather goods.
- Plaintiffs picked up some goods in Italy, and at least seven shipments were sent by defendant to plaintiffs in New York.
- Each shipment included a defendant-prepared invoice; the invoices were not signed or returned by plaintiffs and were not shown to be part of negotiations.
- Twelve invoices contained a small, Italian-language “general conditions of sale” paragraph stating: “The courts of Florence have jurisdiction over disputes.”
- Most of the invoice content was in English or translated into English; defendant could communicate in English, while plaintiffs’ principal did not speak or understand Italian.
- There was no evidence the parties discussed forum selection during contracting.
- Plaintiffs sued alleging, among other things, conversion, misrepresentations, delivery delays, failure to deliver goods, and sought replevin and damages.

## Issues

1. Whether an Italian-language forum-selection clause appearing only in small-print invoice boilerplate became part of the parties’ sales contract under N.Y. U.C.C. § 2-207.
2. Whether New York courts had personal jurisdiction over the Italian seller based on its commercial dealings and shipments into New York.
3. Whether the case should be dismissed on forum non conveniens grounds given witnesses and documents located in Italy.

## Decision

- The court denied the defendant’s motion to dismiss in its entirety.
- The Florence forum-selection clause was not enforceable because it did not become part of the parties’ contract.
- New York could exercise personal jurisdiction over the defendant based on purposeful business activity directed to New York, including repeated shipments to New York buyers.
- The court declined to dismiss for forum non conveniens; New York was an appropriate forum given the balance of party connections, witnesses, and documents.

## Legal Principles

- Under N.Y. U.C.C. § 2-207, a forum-selection clause first introduced in an invoice may be treated as an additional term rather than a negotiated contract term.
- Between merchants, additional terms in a confirmation do not become part of the contract if they materially alter the agreement; a term requiring litigation in a foreign forum may constitute a material alteration.
- Lack of meaningful notice and assent is reinforced where the clause is inconspicuous, presented only in a language the receiving party does not understand, and was not discussed during negotiations.
- A foreign seller is subject to New York jurisdiction when it purposefully transacts business with New York entities and repeatedly ships goods into New York, making suit in New York foreseeable.
- Forum non conveniens dismissal is inappropriate when New York has substantial ties to the dispute and the convenience factors do not strongly favor the foreign forum.

## Conclusion

The court allowed the action to proceed in New York, holding that a Florence forum clause buried in Italian-language invoice boilerplate was not incorporated into the parties’ sales contract and that the Italian seller’s repeated shipments and dealings with New York buyers supported New York jurisdiction and retention of the case.


Posh Pooch Inc. v. Argenti, 815 N.Y.S.2d 495 (N.Y. Sup. Ct. 2006)