Opinion
20686/07.
September 26, 2008.
Napoli Bern Ripka, LLP, Attn: Marc J. Bern, Esq., Attorneys for Plaintiffs, New York, NY.
Martin Clearwater Bell LLP, Attn: Timothy Smith, Esq., Attorneys for Defendants Randee Wysoki, M.D., Dina Farrell, M.D., Michael Farrell, M.D., and Gregory Scagnelli, M.D., White Plains, NY.
Aswad Ingraham, Attn: Charles O. Ingraham, Esq., Attorneys for Defendants, Patricia Grant, R.N., William Kazalski, R.N., Wilson Memorial Regional Medical Center and Julie Higgins, R.P.A., Binghamton, NY.
Havkins Rosenfeld Ritzert Varriale, LLP, Attn: Gregg Scharaga, Esq., Attorneys for Defendant Sports and Arts Center at Island Lake, Inc. i/s/a Camp Island Lake, New York, NY.
Jill Tschinkel R.N., Hurley, NY.
The following papers read on this motion:
Notice of Motion ........................................ 1,5.6 Notice of Cross-Motion .................................. 2 Affirmation in Opposition ............................... 7 Reply Affirmation ....................................... 3,8,9 Defendant's Memorandum of Law ........................... 4Defendant, Sports and Arts Center at Island Lake, Inc. i/s/h/a Camp Island Lake (the "Camp"), seeks an order of this court granting leave to reargue its prior motion to dismiss, and upon such reargument, granting its motion to dismiss pursuant to CPRL 3211(a)(1) and 501. The plaintiffs oppose the application and cross move for clarification of this court's order dated June 10, 2008 (Phelan, J.). Defendants, Randee Wysoki, M.D., Dina Farrell, M.D., Michael Farrell, M.D. and Gregory Scagnelli, M.D. (collectively "Wyoski, Farrell and Scagnelli") also move for an order of this court granting leave to reargue and renew their prior motion to dismiss, and upon such reargument and renewal, granting their motion to dismiss pursuant to CPRL 3211(a)(1) and 501. Defendant, Julie Higgins, R.P.A. ("Higgins"), moves, pursuant to CPLR 3211(a) (1) and (2) and 501, for an order dismissing the action against her.
A motion to reargue is addressed to the discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the facts or misapplied the law or for some other reason improperly decided the prior motion. (CPLR 2221(d)(2); Foley v. Roche, 68 A.D.2d 558, 418 N.Y.S.2d 588 [1st Dept. 1979]; Collins v. Stone, 8 A.D.3d 321, 778 N.Y.S.2d 79 (2d Dept. 2004).
A motion to renew is to be based upon any new evidence or any evidence that could not have been discovered with due diligence before the prior motion, which would warrant renewal. In re Eshaghian, 7 A.D.3d 707, 776 N.Y.S.2d 507 (2d Dept. 2004); Orange and Rockland Utilities, Inc. v. Assessor of Town of Haverstraw, 304 A.D.2d 668, 758 N.Y.S.2d 151 (2d Dept. 2003).
The order of this court dated June 10, 2008 (Phelan, J.), denied the Camp's motion based upon, among other things, "that a parent cannot bind a minor child to a forum selection clause." The Camp asserts that the court misapprehended the law in that the forum selection clause is binding where the infant plaintiff is a third-party beneficiary. The Camp relies on Buhler v. French Woods Festival of Performing Arts, Inc., 154 AD2d 303 [1st Dept. 1989]. The First Department in Buhler rejected "plaintiffs' argument that the contract signed by the mother of the infant plaintiff is not binding in an action brought on his behalf" and deemed the contract applicable to the infant "as a third-party beneficiary, even for the purposes of CPLR 501 (citation omitted)" (Id. at 305). Defendants, Wyoski, Farrell and Scagnelli, essentially set forth the same argument as the Camp and further that they became "assigns' of the contract "for the purpose of medical treatment as contemplated in the contract" (Smith Aff. ¶ 28).
Defendant Higgins sets forth the same argument in her motion to dismiss as well. Based upon the same reasoning contained in this court's order dated June 10, 2008 (Phelan, J.) (as modified herein), defendant Higgin's motion is denied.
"While forum selection clauses have of times been enforced (citations omitted), there are considerations of fairness and convenience here ( Societe Anonyme Belge D 'Exploitation DeLaNavigation Aerienne (Sabena) v. Feller, 112 AD2d 837, 839 [1st Dept. 1985). Plaintiff invoked the jurisdiction of this court. "Some of the [claims] do not strictly arise under the . . . agreement and, therefore, could be considered to be without the scope of the forum selection clause (Id.). "In order to properly invoke the court's discretion the circumstances should clearly indicate that fairness and convenience dictate that our courts yield to the foreign jurisdiction" (Export Ins. Co. v. Mitsui S.S. Co., Ltd., 26 AD2d 436 [1st Dept. 1966]). The court does not find this to be the circumstances in this matter.
"[W]here performance is to be rendered [d]irectly to a third party under the terms of an agreement, the third party is deemed an [i]ntended beneficiary of the covenant and is entitled to sue for its breach (citations omitted) (Goodman-Marks Assocs., Inc. v. Westbury Post Assocs., 70 AD2d 145 [2d Dept. 1979]). The forum selection clause in the agreement here provides for "venue of any dispute that may arise out this agreement or otherwise." This is an action for medical malpractice, lack of informed consent and vicarious liability and does not "arise out of the agreement or otherwise."
Plaintiffs' cross-motion for a clarification of this court's order dated June 10, 2008 (Phelan, J.), is granted as set forth below.
Taking into consideration the arguments of both plaintiffs and defendants, the Camp and Wyoski, Farrell and Scagnelli," reargument is granted, and upon reargument the court adheres to its original decision dated June 10, 2008 (Phelan, J.), except as modified below.
The following paragraph is hereby deleted from the order dated June 10, 2008 (Phelan, J.):
Based on the foregoing, only the causes of action by Malka Bernstein against the Camp must be dismissed on the basis of the forum selection clause. The remainder of the complaint is severed and continued (see generally Imperial Imports Co., Inc. v Hugo Neu Sons, Inc., 161 AD2d 411 [1st Dept. 1990]).
This decision constitutes the order of the court.