Opinion
9641/15
03-22-2016
Rosaura Gautier, as Administratrix of the Estate of Ivelyse Gautier, Plaintiff(s), v. Bay Park Center for Nursing and Rehabilitation LLC, Defendant(s).
Attorney for Plaintiff Asher & Assocs. 111 John Street, 14th Floor New York, NY 10038 212-227-5000 Attorneys for Defendant Kaufman Borgeest & Ryan, LLP 1205 Franklin Avenue, 2nd Floor Garden City, NY 11530 516-248-6000
Attorney for Plaintiff Asher & Assocs. 111 John Street, 14th Floor New York, NY 10038 212-227-5000 Attorneys for Defendant Kaufman Borgeest & Ryan, LLP 1205 Franklin Avenue, 2nd Floor Garden City, NY 11530 516-248-6000 Jeffrey S. Brown, J.
The following papers were read on this motion: Papers Numbered Notice of Motion, Affidavits (Affirmations), Exhibits Annexed 1 Answering Affidavit 2 Reply Affidavit 3
Defendant moves pursuant to CPLR 501, 510(1) and 511(b) to change the venue of this action pursuant to a written agreement.
Plaintiff cross-moves for recission of a "purported" venue agreement and to deny defendant's motion to change venue.
Before this court is a personal injury action sounding in negligence and medical malpractice. This action was commenced in the Supreme Court, Bronx County, on August 28, 2015. Plaintiff designated Bronx County based upon her "purported residence." Issue was joined on or about October 23, 2015 by service of a verified answer. Contemporaneously with the service of the answer, defendant served a demand to change venue from Bronx County to Nassau County. Defendant points to a venue selection clause contained within the Admission Agreement between the decedent and the defendant signed on November 28, 2012. The decedent was a resident of defendant's nursing and rehabilitative facility at the time of the alleged negligence and malpractice which is located in Bronx County.
Section XI(a) of the Admission Agreement provides that "[t]his agreement shall be governed by and construed in accordance with the laws of the State of New York without giving affect to conflict of law provisions. Any and all actions arising out of or related to this Agreement shall be brought in, and the parties agree to exclusive jurisdiction of, the New York State Supreme Court, located in Nassau County, New York."
Defendant argues that plaintiff had five days after service by mail of the demand to change of venue to serve a written consent to change the place of trial or to serve an affidavit demonstrating that the county specified by the defendant was improper or that the county designated by the plaintiff was proper. Defendant alleges that such an affidavit was not served.
Plaintiff, in opposition to the motion and in support of the cross-motion, submits an affidavit from the mother of the decedent and administrator of the estate, Rosaura Gautier, and an affirmation from Dr. Lydia Concepcion.
Rosaura Gautier, the administrator of her mother's estate states that she is 68 years of age and has resided in the Bronx since 1968. She presently resides in the Hunts Point section of Bronx County. She was told by her physician that she must use a walker at all times and she is not healthy enough to leave the Bronx. Further, she does not know how to drive a car. She rarely leaves her home and no longer uses the subway because of the stairs. Access-a-Ride does not travel to Nassau County. A combination of subway and Long Island Rail Road travel to Mineola would be approximately a three to four hour round trip. She alleges that her mother had to sign the agreement or else would have been "kicked out of the nursing home." As a result, it would be impossible for her to attend the trial in Nassau County.
Lydia Concepcion, M.D. affirms that she is a board certified physician in internal medicine and is the primary care physician for Rosaura Gautier. Rosaura Gautier is a 68-year-old female who suffers from numerous chronic medical conditions, to wit, esophageal reflux, hypothyroidism, type 2 diabetes mellitus, asthma, essential hypertension, osteoarthritis, sciatica, severe spinal stenosis, depression, hyperlipidemia, and vitamin D deficiency. Her most debilitating condition is her spinal stenosis. She has great difficulty ambulating secondary to pain and medication side effects. She is easily fatigued and presently dependent on a walker for ambulation. Mrs. Gauthier has undergone epidural steroid injections. An MRI impression states that she has significant multilevel disc and facet degeneration and anterolisthesis and spinal canal stenosis greatest at L3-L4. Further she has multilevel degenerative narrowing left greater than right from L3 - L4 through L5 - S1. Dr. Concepcion opines that travel outside the Bronx would cause undue physical and mental stress to Mrs. Gautier and aggravate her already serious conditions.
Plaintiff further argues that the instant motion is untimely brought beyond the 15-day period proscribed in CPLR 511(b), the motion is jurisdictionally defective and the venue provision should be rescinded because a trial in the selected forum, Nassau County, would be so gravely difficult that for all practical purposes would deprive the plaintiff her day in court.
In reply to the motion and in opposition to the cross-motion, defendant argues that the instant motion is not untimely and plaintiff will not be deprived her day in court. Counsel opines that Dr. Concepcion's report is conclusory and without factual basis. Further, such medical conditions do not make it "gravely difficult," thus depriving plaintiff her day in court.
In reply, plaintiff argues Mrs. Gautier will be literally deprived of her day in court because she cannot travel to her trial.
CPLR 501 provides that subject to the provisions of CPLR 510(2) (which is not argued and thus not relevant here) a written agreement fixing the place of trial made before an action is commenced shall be enforced upon a motion for change of place of trial. CPLR 511(a) provides in relevant part that a demand pursuant to CPLR 511(b) for change of place of trial on the ground that the county designated for that purpose is not a proper county shall be served with the answer or before the answer is served. Defendant, as a result, has timely filed its demand. Plaintiff in this case has not served an affidavit consenting to this county as the place of trial. Therefore, pursuant to CPLR 511(b) defendant may move to change the place of the trial within 15 days after service of the demand. The demand was served with the answer on October 23, 2015. The instant motion was served on December 4, 2015. An earlier motion was served on November 3, 2015 but was returned by the clerk's office for a failure to use the revised RJI form.
Statutory time limits however are not applicable in this case. The Appellate Division stated that "since defendant moved to change venue based on the written agreement (see CPLR 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," see CPLR 511 [a]; Hendrickson v Birchwood Nursing Home Partnership, 26 AD3d 187, 187 [1st Dept 2006]). Medina ex rel. Valentin v. Gold Crest Care Ctr., Inc., 117 AD3d 633, 634 [1st Dept. 2014]; see also, Puleo v Shore View Center, 132 AD3d 652 [2d Dept 2015]). Therefore, the court will determine the motion on its merits.
" A contractual forum selection clause is prima facie valid and enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court'" ( KMK Safety Consulting, LLC v Jeffrey M. Brown Assoc., Inc., 72 AD3d 650, 651 [2010], quoting LSPA Enter., Inc. v Jani-King of NY, Inc., 31 AD3d 394, 395 [2006]; see Casale v Sheepshead Nursing & Rehabilitation Ctr., 131 AD3d 436 [2015]; Molino v Sagamore, 105 AD3d 922, 923 [2013]). Absent a strong showing that it should be set aside, a forum selection agreement will control ( Bernstein v Wysoki, 77 AD3d 241 [2d Dept 2010] [internal quotations and citations
omitted]). Here, the plaintiff failed to show that enforcement of the forum selection clause would be unreasonable, unjust, or in contravention of public policy, or that the inclusion of the forum selection clause in the agreement was the result of fraud or overreaching ( see Casale v Sheepshead Nursing & Rehabilitation Ctr., 131 AD3d 436 [2015]; Couvertier v Concourse Rehabilitation & Nursing, Inc., 117 AD3d 772, 773 [2014]; Public Adm'r Bronx County v Montefiore Med. Ctr., 93 AD3d 620, 621 [2012])." Puleo v. Shore View Ctr. for Rehab. & Health Care, 132 AD3d 651, 652 [2d Dept. 2015]).
The main issue in the instant matter is whether the selected forum would be so "gravely difficult" that the challenging party would, for all practical purposes, be deprived of its day in court. A strong showing must be demonstrated that the trial in Nassau County rather than Bronx County would be so impracticable and inconvenient that the plaintiff-administrator would be deprived of her day in court (see gen. Bernstein, 77 AD3d 241). Absent a strong showing that it should be set aside, a forum selection agreement will control (DiRuocco v. Flamingo Beach Hotel & Casino, Inc., 163 AD2d 270, 272 [2d Dept. 1990]; see also, Horton v Concerns of Police Survivors, 62 AD3d 836 [2d Dept 2009] [holding that "[a]lthough the plaintiff averred that she is a single mom who resides with her teenaged daughter in Dutchess County, New York, this claim was insufficient, standing alone that enforcement of the forum selection clause, which required disputes to be decided in the courts of the State of Missouri, would be unjust"]).
The court has reviewed both the plaintiff-administrator's affidavit and the physician's affirmation. Plaintiff sets forth medical reasons why the trial in Nassau County would deprive her of her day in court. The proof sets forth numerous medical ailments that the plaintiff suffers from. She has trouble walking and only leaves her home for medical appointments and to attend church. Her argument is that she cannot attend court in Mineola. Apparently, however, the same difficulties would not prevent her from traveling to court in the Bronx. The doctor opines that the plaintiff's medical condition would be aggravated if she left Bronx County.
It is hard for the court to accept that plaintiff would be able to travel to a courthouse or any location within Bronx County but once she crossed over the county line, it would cause undue physical and mental stress to the plaintiff, or that it would be impossible for plaintiff to find alternate transportation to the Nassau County. Any such opinion is speculation on the physician's part.
According to Merriam-Webster.com, "gravely" is defined as something "meriting serious consideration; likely to produce great harm or danger; significantly serious." The factors here do not rise to the level of a strong showing that would that would cause this court to overcome the strong presumption of validity of a contractual forum selection clause.
In support of her position, plaintiff cites U.S. Mdse, Inc. v L & R Distrib., Inc., 122 AD3d 613 [2nd Dept. 2014] where the court overturned a forum selection cause upon a demonstration, without opposition, that there was no connection of any of the parties to the State of Delaware. Further, in the case of Northern Leasing Sys., Inc. v. French, 48 Misc 3d 43 (Appellate Term, 1st Dept. 2015) , the court set aside a contractual forum selection clause because the parties' controversy had no substantial nexus to New York State, rather the nexus was to the state of California. This, however, is not the case here and the case law is distinguishable. All parties here have a nexus to New York State. The question here is one of venue. The Appellate Division, Second Department, in the case of Puleo v Shore View Ctr, 132 AD3d 651, reversed the lower court and found that under similar factual circumstances that venue was appropriate in Suffolk County, based upon the forum selection clause, rather than Kings County, where plaintiff decedent's nursing home was located ( see also, Casale v Sheepshead Nursing & Rehabilitation Center, 131 AD3d 436 [2d Dept 2015] [holding that the "plaintiff did not demonstrate that a trial in Nassau County would be so gravely difficult that, for all practical purposes, he would be deprived of his day in court. Contrary to the plaintiff's contention, the agreement, including the forums election clause, is binding on the parties to this litigation"]); Couvertier v Concourse Rehabilitation & Nursing, Inc, 117 AD3d 772 [2d Dept 2014] [similarly holding that the plaintiff, as administrator of the decedent's estate, where decedent was a resident of a nursing home facility in the Bronx, failed to show that the forum selection clause was unreasonable or unjust, or that a trial in Westchester County would be so gravely difficult that, for all practical purposes, she would be deprived of her day in court]).
Accordingly, the plaintiff did not demonstrate that a trial in Nassau County would be so gravely difficult that, for all practical purposes, she would be deprived of her day in court Casale, supra. As a result, defendant's motion is granted, and plaintiff's cross-motion is denied.
ORDERED, that the County Clerk of Bronx County is directed to transfer the file to the County Clerk of Nassau County; and it is further
ORDERED, that all parties shall appear at a preliminary conference at the supreme courthouse, 100 Supreme Court Drive, Mineola, NY, lower level, on May 2, 2016 at 9:30 a.m. No adjournments of this conference will be permitted absent the permission of or order of this court. All parties are forewarned that failure to attend the conference may result in judgment by default, the dismissal of pleadings (see 22 NYCRR 202.27) or monetary sanctions (22 NYCRR 130-2.1 et seq.).
This constitutes the decision and order of this court. All applications not specifically addressed herein are denied. Dated: Mineola, New York March 22, 2016 ENTER: HON. JEFFREY S. BROWN J.S.C.