Opinion
2014-05-29
Ana Louisa MEDINA by Diana VALENTIN as Attorney–in–Fact, Plaintiff–Respondent, v. GOLD CREST CARE CENTER, INC., Defendant–Appellant, Sandra Kerr, Defendant–Respondent, Jane Does I–X, et al., Defendants.
Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Glen Feinberg of counsel), for appellant. Law Firm of D.F. Truhowsky, New York (Deborah F. Truhowsky of counsel), for Ana Louisa Medina, respondent.
Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Glen Feinberg of counsel), for appellant. Law Firm of D.F. Truhowsky, New York (Deborah F. Truhowsky of counsel), for Ana Louisa Medina, respondent.
Lewis Brisbois Bisgaard & Smith, LLP, New York (David Lafarga of counsel), for Sandra Kerr, respondent.
SWEENY, J.P., ACOSTA, SAXE, MANZANET–DANIELS, CLARK, JJ.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered August 5, 2013, which, in this action arising out of defendants' alleged negligence in caring for a nursing-home patient, denied defendant-appellant's motion to change venue from Bronx County to Westchester County based on a venue-selection clause in an admission agreement signed by plaintiff as attorney-in-fact for her grandmother, unanimously reversed, on the law, without costs, and the motion granted.
The motion court improperly determined that the venue-selection clause is inapplicable because many of the acts or omissions complained of occurred before the execution of the agreement. The clause does not limit its applicability to acts or omissions occurring after the execution of the agreement. Rather, it merely requires that any actions arise from or relate to the agreement. Since this action arises out of or relates to the duties and obligations under the agreement, the venue-selection clause applies, and defendant's motion should have been granted ( see Public Adm'r Bronx County v. Montefiore Med. Ctr., 93 A.D.3d 620, 621, 941 N.Y.S.2d 104 [1st Dept.2012] ). Moreover, since defendant moved to change venue based on the written agreement ( seeCPLR 501), it was not required to serve a written demand for a change of venue with or prior to its answer before making the motion, and the motion needed only to be made “within a reasonable time after commencement of the action,” as it was here (CPLR 511[a]; Hendrickson v. Birchwood Nursing Home Partnership, 26 A.D.3d 187, 187, 807 N.Y.S.2d 876 [1st Dept.2006] ). The motion court properly rejected plaintiff's conclusory assertions that the venue-selection clause violates public policy. Further, there is no evidence of fraud in the execution of the agreement, particularly since plaintiff, as attorney-in-fact for her grandmother, could have, and by signing the agreement indicated that she had, read the agreement, understood it, and agreed to be legally bound by it, none of which she expressly denies.
We have examined plaintiff's remaining arguments and find them unavailing.