David Karlsberg was injured in 2011 while taking a beginner snowboarding lesson at Hunter Mountain Ski Bowl in Greene County, New York. Prior to the accident, Karlsberg signed a release stating that any disputes would be litigated exclusively in Greene County Supreme Court.
But Karlsberg instead filed his suit, Karlsberg v. Hunter Mountain, 38816/11, in Suffolk County, where he resides, alleging that the resort had failed to provide him with proper ski instruction. In a 2014 order by Suffolk County Supreme Court Justice Joseph Pastoressa, the ski resort’s request to switch the venue for the personal injury lawsuit from suburban Suffolk County to rural Greene County, where the resort is located, was granted.
The Sept. 23 decision by a panel of the Appellate Division, Second Department, upholds the lower court’s ruling. The panel wrote that, contrary to Karlsberg’s argument, the release was not an unenforceable contract of adhesion and its the forum selection clause does not contravene public policy (see Molino v. Sagamore, 105 AD3d 922).
The panel consisted of Justices John Leventhal, Thomas Dickerson, Sheri Roman and Sylvia Hinds-Radix. Perhaps the most interesting aspect of the ruling is the concurrence written by Dickerson. While constrained to the holding in Molino, Dickerson noted that a better rule for cases involving forum selection clauses is that they should not be enforced if they are shown to customers for the first time upon their arrival to the resort without time for consideration.