In Transfirst EPayment Services, Inc. v. Advanced Marketing Research, Ltd., et al., Index No. 602536/2008 (Sup. Ct. N.Y. County Sept. 29, 2010) (“Transfirst EPayment”), Justice Eileen Bransten granted the motion of plaintiff Transfirst EPayment Services, Inc. (“Transfirst”) for summary judgment on its breach of contract cause of action against defendants Advanced Marketing Research, Ltd. (“AMR”) and the Estate of Albert Dweck. In doing so, Justice Bransten applied New York law to Transfirst’s claims even though both of the agreements at issue contained choice of law clauses which mandated the application of Colorado law.

In 2007, AMR, a online furniture retailer, entered into an Agreement and a Guaranty with Transfirst, for Transfirst to provide AMR with credit card processing services for its online retail sales. The Agreement obligated AMR to reimburse Transfirst for all charge-backs, while the Guaranty obligated Albert Dweck to reimburse Transfirst in the event of an AMR default. Both the Agreement and the Guaranty contained Colorado choice-of-law clauses. The action arose out of AMR’s failure to reimburse Transfirst for credit card charge backs as provided for in the Agreement and defendant Joseph Dweck’s allegedly fraudulent listing of his father, Albert Dweck, as the owner of AMR and the guarantor of the Agreement (Joseph Dweck contends that he signed the Agreement and Guaranty on his father’s behalf because he felt that he would by rejected for credit card services because his previous furniture company went bankrupt five years before).