BARRY A. COZIER. J.:

In this class action. defendant America Online, Inc. ("AOL") moves to dismiss the second amended complaint in its entirety, pursuant to CPLR 321 l(a~(l) and CPLR 327.

FACTUAL ALLEGATIONS

Plaintiffs Stephen DiLorcnzo and Dean Lubnick were subscribers of on-line services provided by AOL. The service agreement between the parties provided the plaintiffs with the first five hours of access to AOL for $9.95 and $2.95 per hour for each additional hour thereafter. In December 1996. AOL changed its billing practices so that all subscribers who had previously been billed under the $9.95 plan would be switched to an unlimited use plan at a flat rate or $19.95 per month. Following an investigation by a number of State Attorneys General of AOL's new billing practices. AOL agreed to, inter alia, inform all users of the changes, provide an on-line mechanism to revert back to the $9.95 plan at no cost through March 31. 1997. and establish a toll-free telephone number to explain the billing changes.

Plaintiffs subsequently commenced this action. which was consolidated in May 1997 with thirteen other New York actions by Justice Lewis R. Friedman. The consolidated action was stayed pending resolution of an earlier filed national class action in Illinois. Schwab v. America Online, Inc . No. 96 CH 113732. In February 1998. an opinion and order was entered approving the settlement of Schwab and all plaintiffs in the consolidated action. except DiLorenzo and Lubnick. discontinued their claims against AOL.

In the second amended complaint dated June 30. 1998. plaintiffs allege that AOL. in switching all of its subscribers from the $9.95 plan to the $19.95 plan, failed to (1) adequately notify its users of the option to transfer back to the $9.95 plan; (2) disclose negative information concerning its pricing, resulting in fraud: and (3) inform its users of its actual capacity to provide internet services. Plaintiffs further maintain that "free minutes," granted to AOL customers to induce them to subscribe to AOL or to credit accounts, were rendered worthless due to the new billing practice. As a result of the unlimited flat rate, plaintiff's allege. AOL’s quality of service deteriorated injuring its customers.

AOL opposes the present motion by urging dismissal by virtue of the forum selection clause contained in the AOL customer contract Specifically. AOL cites to ¶ 10 of the ‘Terms of Service" ("TOS"). which all AOL customers must accept by clicking on the "I agree" icon on the computer screen in order to subscribe:

The TOS and your membership shall be governed by the laws of the Commonwealth of Virginia. excluding its conflicts of law rules: Member expressly agrees that exclusive jurisdiction for any claim or dispute resides in the courts of thc Commonwealth of Virginia. Member further agrees and expressly consents to the exercise of personal jurisdiction in the Commonwealth of Virginia in connection with any dispute or claim involving AOL Inc.

Boe Aff. Exh. B. AOL maintains the Virginia forum is appropriate because. inter alia AOL is headquartered in Virginia. the service is based out of Virginia. all relevant documents and personnel responsible for thc terms are located in Virginia. and the unlimited flat fee plan was conceived. executed. and performed in Virginia. AOL further contends that even absent the forum selection clause. the action should be dismissed pursuant to CPLR 327 on the grounds of forum non conveniens.

Plaintiffs argue that the forum selection clause at issue is not binding because the action alleges a fraud which permeates the entire agreement. Plaintiffs further allege that AOL has waived the forum selection clause by agreeing to litigate Schwab in Illinois. Plaintiffs maintain that New York’s strong interest in regulating conduct within its borders and enforcing New York’s consumer protection statutes (GBL §§ 349. 350). also warrant hearing the action in New York. Plaintiffs further contend that New York is a convenient forum for this action.

Motion to Dismiss

It is well established that in determining whether to grant a motion to dismiss based upon documentary evidence. "the pleadings must be liberally construed and the facts alleged accepted as true: the court must determine ‘only whether the facts as alleged fit within any cagnizabic legal theory.’" Wiener v. Lazard Freres & Co.. 241 A.D.2d 114, 120 (1st Dept. 1998) (quoting Leon v. Martinez. 84 N.Y.2d 83. 87-88 (1994)). This test is so liberal that the standard is simply whether thc plaintiff has a cognizable cause of action, not even whether one has been stated in the complaint. Id. However, where the allegations consist of claims that are contradicted by documentary evidence, the allegations are not entitled to consideration. Herman v. Greenberg, 221 A.D.2d25125l (1^st Dept.1995).

Choice of Forum Clauses

New York courts have consistently held that choice of forum douses "are prima facie valid and enforceable unless shown by the resisting party to bc unreasonable." Brooke Group Ltd. v. JCH Syndicate 488. 87 N.Y.2d 530, 534 (1996). See also. Shah v. Shah, 215 A.D.2d

287. 288 (1st Dept. 1995) (forum selection clause are "prima facie valid and arc not to be set aside except in instances of fraud or overreaching or where the enforcement of the clause would be so unreasonable and unjust as to make a trial in the selected forum ‘so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of his or her day in court.’") (quoting British West Indies Guar. Trust Co., Ltd. Banque Internationale A Luxembourg, 172 A.D.2d 214 (1St Dept. 1991), additional citations omitted). Forum selection clauses arc favored because they provide predictability and certainty in the resolution of disputes. Brooke Group Ltd., supra 87 N.Y.2d. at 534. Thus, a party challenging a forum selection clause carries the heavy burden of establishing that the chosen forum is an improper. Banco Ambrosiano S.p.A. v. Artoc Bank & Trust Ltd. 62 N.Y.2d 65. 74 (1984).

The Court concludes that plaintiffs have failed to meet this heavy burden. Allegations by the plaintiffs that fraud committed by AOL permeated the contract, voiding the forum selection clause, ignore the reality that plaintiffs have failed to allege that the inclusion of the thrum selection clause was itself the product of fraud. Although plaintiffs allege AOL failed to disclose the true facts regarding the flat rate. such an allegation has no bearing an plaintiffs' earlier agreement to be bound by thc forum selection clause. As the Supreme Court of the I United States has held, a dispute arising out of a transaction based upon an allegation of fraud does not render the forum selection clause unenforceable. Rather, a forum selection clause in a contract knot enforceable if the inclusion of that clause in the contract was the product of fraud

or coercion."Scherk v. Alberto-Culver Co.. 417 U.S. 506 519 n.14 (1974). See Also Rokehy-Johnson v Kentucky Agric. Energy Corp. 108 A.D.2d 336. 341 (1st Dept. 1985) (It is not alleged that the forum selection clause itself was induced by fraud; therefore. the enforcement of that clause is not affected’); Composite Holdings LLC v. Westinghouse Electric Corp., 992 F.Supp. 367.369 (SDNY 1998) ("forum selection clause wilt stand against a claim of fraud unless the party resisting enforcement alleges and proves that…the fraud was directed to the forum selection clause itself.").

Plaintiffs’ argument that AOL waived the forum selection clause, by virtue of its involvement in the Illinois litigation, is also without merit. Waiver is "an intentional relinquishment of a known right and should not be lightly presumed." Gilbert Frank Corp. v. Federal Ins. Co. 70 N.Y.2d 966, 968 (1988). Accordingly. "[t]his intent must be clearly established and cannot be inferred from doubtful or equivocal acts or language and the burden of proof is on the person claiming the waiver of the right." East 56th Plaza. Inc. v. Abrams, 91 A.D.2d 1129. 1130 (3d Dept 1983). The record establishes that prior to settling the Schwab action. AOL, indicated its intent to invoke the forum selection clause by the filing of a motion to dismiss based upon the Virginia selection clause. See Jaber Aff., Exb. A, Memo in Support at 5 (court must dismiss the complaint due to the existence of a forum selection clause which provides exclusive jurisdiction in Virginia). Thus, rather than waiving the forum selection clause. AOL sought its enforcement prior to the settlement. The fact that the prior action ultimately resulted in a settlement does not amount to an intentional relinquishment of the forum selection clause, especially in light of the fact that settlements are "judicially favored." Matter of Kanter 209 A.D.2d 365, 365 1st Dept. 1994).

As for plaintiff's claim that New York’s strong interest in regulating conduct within its borders and enforcing its consumer protection statutes warrants hearing the action in New York, it ignores the fact that foreign courts may determine whether New York's consumer laws were violated. See Draiman v. American Express Travel Related Services Co., 892 F.Supp 1096. I 101 (N.D.Ill. 1995) (defendant did not violate § 349); Rhodes v. Consumers' Buyline , Inc. 868 F.Supp. 368. 377 (D.Mass. 1993) plaintiff stated valid claim for violation under § 350).

Accordingly, it is

ORDERED that the motion to dismiss is granted and the complaint is dismissed with costs and disbursements Co defendant as taxed by the Clerk of the Court: and it is further

ORDERED that the Clerk is directed to enter judgement accordingly. This constitutes the decision and order of the Court

Dated: January 22, 1999

ENTER: