On November 06, 2020 a
Exhibit,Appendix
was filed
involving a dispute between
Kevin Lynch
As Administrator Of The Estate Of Rose Bouknight,
and
Glen Island Center For Nursing And Rehabilitation And,
Jopal Bronx Llc
D B A Workmen'S Circle Multicare Center,
Montefiore Medical Center,
for Torts - Medical, Dental, or Podiatrist Malpractice
in the District Court of Westchester County.
Preview
FILED: WESTCHESTER COUNTY CLERK 02/03/2021 04:05 PM INDEX NO. 64205/2020
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/03/2021
"D"
Exhibit
FILED:
..-.......,. WESTCHESTER
---.- -,..,.....- COUNTY
-.....-- CLERK
--, 02/03/2021
.....,..- - - ...... ...
. 04:05 PM INDEX NO. 64205/2020
-_._,
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 67
18 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 2/ /2020
02/03/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX, PART 23
------------ -
----------------------X
JEFFERSON, RICKY Index No. 029627/2018E
-against- Hon. JOSEPH E. CAPELLA
BRONX HARBOR HEALTH CARE Justice Suprerne Court
-----------------------------------------------------X
The following papers numbered 1 to 3 were read on this motion ( Seq. No. 002 )
for CHANGE VENUE noticed on 9/18/20 .
Notice of Motion - Order to Show Cause - Evhibits and Affidavits Annexed No(s). (D
Answering Affidavit and Exhibits No(s).
(Q)
Replying Affidavit and Exhibits No(s). (3)
decided as follows:
Upon the foregoing papers, it isordered that this motion is
Motion by defendant to change venue to Westchester County based on a forum selection clause
contained in defendant's Admission Agreement signed by decedent's daughter, Eugenia Jefferson, is
denied. (CPLR § 501.) Defendant provides no proof that Ms. Jefferson had legal authority to execute
the Admission Agreement on decedent's behalf. Although the Admission Agreement may stillbe
enforceable under the doctrine of apparent authority, (Indosuez v National, 98 NY2d 238 [2002]),
apparent authority will only be found where the words or conduct of the principal (i.e.,decedent), and
not the agent (i.e.,Ms. Jefferson), give rise to a reasonable belief that the agent possessed the
authority to enter into the agreement. (Hallock v State of New York, 64 NY2d 224 [1984].) In other
words, an agent cannot by her own conduct imbue herself with the apparent authority to act on behalf
of the principal. (M.) Moreover, the mere creation of an agency for a certain purpose does not
automatically invest the agent with apparent authority to bind the principal without limitation. (Ford
v Unity Hospital, 32 NY2d 464 [1973].) Here, defendent provides no affidavit from someone with
personal knowledge to describe the circumstances under which the Admission Agreement was
executed, including what, ifany, words or conduct were ccaveyed by decedent that would suggest
that her dâüghter, Ms. Jefferson, had authority to sign the Admission Agreement. Instead, the motion
isonly supported by an attorney affirmation, which is insufficient to raise a triable issue of fact and of
no probative value, (Zuckerman v City of New York, 49 NY2d 557 [1980]), and a business record
8 certification for the Admission Agreement. In addition, the motion is not timely as it was made nearly
2 years after the action commenced and over I½ years after defendant interposed itsanswer. (CPLR
[1"
511(a); Medina v Gold, I 17 AD3d 633 Dept 2014].) Therefore, the motion is denied.
.3 Plaintiff is directed to serve a copy of this decision with notice of entry by firstclass mail upon
defendant within 20 days of receipt of copy of same. This constitutes the decision and order of this
court.
Dated: ll 0 Hon.
. CAPELLA J.S. .
.--____ ...___.....____.-- ...___.._..___ .._____________ _______._____.__.
1. CHECK ONE..... ........ a CASE DISPOSED IN ITS ENTlRETY CASE STILL ACTIVE
2. MOTION IS......- ...... a GRANTED dENIED a GRANTED IN PART a OTHER
3. CHECK IF APPROPRIATE a SETTLE ORDER a SUBMIT ORDER a SCHEDULE APPEARANCE
a FIDUCIARY APPOINTMENT a REFEREE APPOINTMENT
Document Filed Date
February 03, 2021
Case Filing Date
November 06, 2020
Category
Torts - Medical, Dental, or Podiatrist Malpractice
For full print and download access, please subscribe at https://www.trellis.law/.
Preview
FILED: WESTCHESTER COUNTY CLERK 02/03/2021 04:05 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 02/03/2021 "D" Exhibit FILED: ..-.......,. WESTCHESTER ---.- -,..,.....- COUNTY -.....-- CLERK --, 02/03/2021 .....,..- - - ...... ... . 04:05 PM INDEX NO. 64205/2020 -_._, NYSCEF NYSCEF DOC. DOC. NO. NO. 67 18 RECEIVED RECEIVED NYSCEF: NYSCEF: 2/ /2020 02/03/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX, PART 23 ------------ - ----------------------X JEFFERSON, RICKY Index No. 029627/2018E -against- Hon. JOSEPH E. CAPELLA BRONX HARBOR HEALTH CARE Justice Suprerne Court -----------------------------------------------------X The following papers numbered 1 to 3 were read on this motion ( Seq. No. 002 ) for CHANGE VENUE noticed on 9/18/20 . Notice of Motion - Order to Show Cause - Evhibits and Affidavits Annexed No(s). (D Answering Affidavit and Exhibits No(s). (Q) Replying Affidavit and Exhibits No(s). (3) decided as follows: Upon the foregoing papers, it isordered that this motion is Motion by defendant to change venue to Westchester County based on a forum selection clause contained in defendant's Admission Agreement signed by decedent's daughter, Eugenia Jefferson, is denied. (CPLR § 501.) Defendant provides no proof that Ms. Jefferson had legal authority to execute the Admission Agreement on decedent's behalf. Although the Admission Agreement may stillbe enforceable under the doctrine of apparent authority, (Indosuez v National, 98 NY2d 238 [2002]), apparent authority will only be found where the words or conduct of the principal (i.e.,decedent), and not the agent (i.e.,Ms. Jefferson), give rise to a reasonable belief that the agent possessed the authority to enter into the agreement. (Hallock v State of New York, 64 NY2d 224 [1984].) In other words, an agent cannot by her own conduct imbue herself with the apparent authority to act on behalf of the principal. (M.) Moreover, the mere creation of an agency for a certain purpose does not automatically invest the agent with apparent authority to bind the principal without limitation. (Ford v Unity Hospital, 32 NY2d 464 [1973].) Here, defendent provides no affidavit from someone with personal knowledge to describe the circumstances under which the Admission Agreement was executed, including what, ifany, words or conduct were ccaveyed by decedent that would suggest that her dâüghter, Ms. Jefferson, had authority to sign the Admission Agreement. Instead, the motion isonly supported by an attorney affirmation, which is insufficient to raise a triable issue of fact and of no probative value, (Zuckerman v City of New York, 49 NY2d 557 [1980]), and a business record 8 certification for the Admission Agreement. In addition, the motion is not timely as it was made nearly 2 years after the action commenced and over I½ years after defendant interposed itsanswer. (CPLR [1" 511(a); Medina v Gold, I 17 AD3d 633 Dept 2014].) Therefore, the motion is denied. .3 Plaintiff is directed to serve a copy of this decision with notice of entry by firstclass mail upon defendant within 20 days of receipt of copy of same. This constitutes the decision and order of this court. Dated: ll 0 Hon. . CAPELLA J.S. . .--____ ...___.....____.-- ...___.._..___ .._____________ _______._____.__. 1. CHECK ONE..... ........ a CASE DISPOSED IN ITS ENTlRETY CASE STILL ACTIVE 2. MOTION IS......- ...... a GRANTED dENIED a GRANTED IN PART a OTHER 3. CHECK IF APPROPRIATE a SETTLE ORDER a SUBMIT ORDER a SCHEDULE APPEARANCE a FIDUCIARY APPOINTMENT a REFEREE APPOINTMENT