Preview
FILED: WESTCHESTER COUNTY CLERK 11/09/2020 04:00 PM INDEX NO. 69498/2019
64205/2020
NYSCEF DOC. NO. 32
9 RECEIVED NYSCEF: 03/13/2020
11/09/2020
To com m ence th e s ta tu to ry
tim e
SUPREM E COURT OF THE STATE OF NEW YORK
p e rio d
fo ra p p e a ls
as of rig h t
(C P L R
COUNTY OF W ESTCHESTER 5 5 1 3 (a ]),
you a rea d v is e d
to se rv e
a
copy of th iso rd e r,
w ith n o tic e
of
e n try ,
upon a ll p a rtie s .
PRESENT:
HON. MARY H. SMITH
JUSTICE OF THE SUPREME COURT
A L E X IS ALM ONTE as A d m in is tra to rof th e ESTATE of
C A R L IT A ALM ONTE,
ORDER
P la in tiff(
s), In d e xN o .: 6 9 4 9 8 /2 0 1 9
M o tio n D a te : 1 /3 1 /2 0 1 9
-a g a in s t-
JE W IS H HOME L IF E C A R E HARRY AND JE A N E T T E
W E IN B E R G CAM PUS, BRONX; JE W IS H HOME
L IF E C A R E ; THE NEW JE W IS H HOM E, BRONX;
SENTOSACARE, LLC; THE PLAZA REHAB AND
N U R S IN G CENTER; and TCPRNC LLC,
D e fe n d a n t(s ).
- - -------- -_ ..------- ------ -'- -------- --------- - - ------ - - - ------ --- - - - - - -- ---
D e fe n d a n ts
TCPRNC L L C d /b /a The P la z a R ehab and N u rs in g C e n te rand
S e n to c a re ,
LLC m ove (M o tio n #1) to change venue. D e fe n d a n ts
J e w is hH om e L ife c a re ,
H a rry and J e a n e tte
W e in b e rgC am pus, B ro n x ,and J e w is hH om e L ife c a re ,
M a n h a tta ns /h /a
J e w is hH om e L ife c a re ,
The N ew J e w is hH om e, B ro n x c ro ss-m o v e (M o tiO n #2) fo r th e
sam e re lie f.
The fo llo w in gp a p e rsw e re re a d :
N o tic e of M o tio n (# 1 ),A ffirm a tio n ,
and E x h ib its(4 ) 1 -6
A ffirm a tio n in O p p o s itio n 7
A ffirm a tio n in R e p ly 8
N o tic e of C ro s s -M o tio n(# 2 ),A ffirm a tio n ,and E x h ib its(4 ) 9 -1 4
A ffirm a tio n in O p p o s itio n 15
A ffirm a tio n in R e p ly 16
By w ay of b a c k g ro u n d ,
p la in tiff
com m enced th is a c tio n
fo r p e rso n a l
in ju rie sin th e
S u p re m e C o u rt,B ro n x C o u n ty . D e fe n d a n ts
TCPRNC LLC d /b /a The P la z aR ehab and
N u rs in g C e n te rand S e n to s a c a re ,
LLC now m ove (M o tio n # 1) p re -a n sw e rto change
venue. D e fe n d a n ts
J e w is hH om e L ife c a re ,
H a rry and J e a n e tte
W e in b e rg C am pus, B ro n x ,
and J e w is hH om e L ife c a re ,
M a n h a tta ns /h /a J e w is hH om e L ife c a re ,
The N ew J e w is h
1
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H om e, B ro n x a lso m ove (M o tio n #2) p re -a n sw e r
to change venue.
In su p p o rtof th e m o tio n s,d e fe n d a n ts
n o te th a tth e p a rtie se n te re din to a w ritte n
a g re e m e n t
w h ic hp ro v id e d ,
in re le v a n t
p a rt,
th a tth ep a rtie s
w o u ld su b m it any m a tte ra risin g
under or re la tin gto th ep a rtie s'a g re e m e n t
to th e ju risd ic tio nof th e c o u rtsof th e sta te of
N ew Y o rk in th e C o u n tyof W e stc h e ste r. B a se d h e re o n ,
under CPLR 501, d e fe n d a n ts
c o n te n d
th a tvenue of th isa c tio nm u st be changed to W e stc h e ste rC o u n ty .
In o p p o sitio n ,
p la in tiffa sse rtsth a td e fe n d a n ts
fa ile d to c o m p ly w ith th e c o n d itio n
of CPLR 511, w h ic h re q u ire sth e se rv ic e of a dem and to change venue fo llo w e d by a
m o tio n .H e re ,p la in tiff
c o n te n d s,
d e fe n d a n ts
d id not se rv e su c h a dem and.
CPLR 510 p ro v id e s
in re le v a n t
p a rt
th a tth e C o u rtm ay change th e p la c eof tria lof
an a c tio nw h e reth e c o u n tyd e sig n a te d
fo rth a tp u rp o seis not a p ro p e rc o u n ty .
CPLR 501
p ro v id e s
in re le v a n t
p a rtth a tth a t
" w ritte n a g re e m e n t
fix in g p la c eof tria l,m ade b e fo rean
a c tio nis com m enced, sh a llbe e n fo rc e dupon a m o tio n fo r change of p la c eof tria l." A
p a rty m o v in g under CPLR 501 to change venue is not re q u ire dto se rv e th e dem and
p ro v id e dfo r in CPLR 511 (see Puleo v Shore View Ctr. for Rehabilitation and Health
Care, 132 A D 3d 651, 652 [2 d D ept 2 0 1 5 ])."A c o n tra c tu a l
fo ru m se le c tio n
c la u seis p rim a
fa c iev a lidand e n fo rc e a b le
u n le ssitis sh o w n by th e c h a lle n g in g
p a rty to be u n re a so n a b le ,
u n ju st,in c o n tra v e n tio n
o f p u b lic
p o lic y ,
in v a lid
due to fra u dor o v e rre a c h in g ,
or it is sh o w n
th a ta tria l in th e se le c te dfo ru m w o u ld be so g ra v e lyd iffic u lt
th a tth e c h a lle n g in g
p a rty
w o u ld ,fo r a llp ra c tic a l
p u rp o se s,
be d e p riv e d
of its day in c o u rt"(id .,in te rn a l
q u o ta tio n
m a rk s o m itte d ).H e re , p la in tifffa ile d to sh o w th a te n fo rc e m e n t
of th e fo ru m se le c tio n
c la u sew o u ld be u n re a so n a b le ,
u n ju st,or in c o n tra v e n tio n
of p u b licp o lic y ,or th a tth e
in c lu sio nof th e fo ru m se le c tio nc la u se in th e a g re e m e n t
w as th e re su lt of fra u d or
o v e rre a c h in g .
To th e e x te n t
not sp e c ific a lly
a d d re sse dh e re in ,
th e C o u rtfin d s p la in tiffs
re m a in in ga rg u m e n ts
to be w ith o u tm e rit.A c c o rd in g ly ,
M o tio n ## 1 and 2 a re g ra n te d ;
th e
m o v a n tsa re d ire c te dto su b m it p ro p o se d
'o rd e rw ith in 20 days h e re o f;th e m o v a n tsa re
re m in d e dth a tth isp a rtre q u ire sth esu b m issio n of w o rk in g c o p ie s.
D a te d :
M a rc h If, 2020
W h ite P la in s,
N ew Y o rk
HON. RY H. S M IT H
Ju stic e of th e S u p re m eC o u rt
2
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To commence the statutory time for appeals as of right
(CPLR 5513 [a]), you are advised to serve a copy
of this order, with notice of entry, upon all parties.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
-----------------------------------------------------------------------X
PUBLIC ADMINISTRATOR OF BRONX
COUNTY, as the ADMINISTRATOR OF THE INDEX NO. 68372/2019
ESTATE OF GWEN FUENTES, deceased
Plaintiff, DECISION/ORDER
- against -
REGENCY EXTENDED CARE CENTER, Mot. Seqs. 1 & 2
HUDSON VIEW CARE CENTER, INC., HUDSON Submit Date: 2/26/2020
VIEW CARE CENTER, INC. d/b/a REGENCY
EXTENDED CARE CENTER, EASTCHESTER
REHABILITATION AND HEALTH CARE CENTER,
LLC, EASTCHESTER REHABILITATION AND
HEALTH CARE CENTER, LLC d/b/a
EASTCHESTER REHABILITATION AND
HEALTH CARE CENTER, EASTCHESTER
REHABILITATION AND HEALTH CARE CENTER,
ST. JOSEPH'S MEDICAL CENTER,
Defendants.
-------------------------------------------------------------------------X
ECKER, J.
In accordance with CPLR 2219 (a), the decision herein is made upon consideration
of all papers filed in NYSCEF as submitted regarding the the motion of defendants
EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC s/h/a
EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC,
EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC d/b/a
EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, EASTCHESTER
REHABILITATION AND HEALTH CARE CENTER (“Eastchester”) (Mot. Seq. 1), made
pursuant to CPLR 501, 510 (1), and 511, for an order directing a change of venue from
Bronx County to Westchester County; and the cross motion of plaintiff, PUBLIC
ADMINISTRATOR OF BRONX COUNTY AS ADMINISTRATOR OF THE ESTATE OF
GWEN FUENTES, DECEASED (Mot. Seq. 2), made pursuant to CPLR 3211 (a) (4), for
an order dismissing this action on the grounds that there is another action between the
same parties for the same causes of action pending in Supreme Court, Bronx County
under Index No.: 31893/2018E.
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Gwen Fuentes (hereinafter the decedent) was a resident of the Eastchester
Rehabilitation and Health Care Center, Inc. (hereinafter Eastchester), a residential health
care facility located in the Bronx, from April 28, 2016, until her death in June 28, 2016.
After decedent’s admission to the facility, Sandra L. Standen, the decedent’s sister as her
“designated representative,” signed an “Admission Agreement” (hereinafter the
agreement), dated June 6, 2016, that contains a forum selection clause which is disputed
in this litigation. While a resident at Eastchester’s facility and other nursing homes, the
decedent allegedly sustained physical injuries due to negligent care resulting in her death.
In October 2018, plaintiff, as the administrator of the decedent’s estate, commenced
an action in Supreme Court, Bronx County under Index No. 31893/2018E, alleging, inter
alia, causes of action to recover damages for wrongful death, negligence, and violations
of the Public Health Law (hereinafter the Bronx action). In June 2019, Eastchester filed
an answer raising, as relevant here, improper venue and the forum selection clause as
affirmative defenses. In October 2019, Eastchester served plaintiff with a written demand
to change venue. Plaintiff, in turn, denied Eastchester’s demand on the grounds that the
decedent was a resident of Bronx County at the time of her death, and because the
Surrogate Court, Bronx County issued letters of administration to plaintiff in May 2018.
In November 2019, Eastchester filed the instant motion in this court to change venue
of the action from Bronx County to Westchester County based on the forum selection
1
clause contained in the agreement. Plaintiff filed a cross motion pursuant to CPLR 3211
(a) (4) to dismiss this action on the grounds that there is a prior action pending.
Contrary to plaintiff’s contention, since Eastchester moved to change venue based
on the agreement, Eastchester was not required to serve a written demand for a change
of venue with or prior to filing its answer, before making the instant motion (see CPLR
501; Medina v Gold Crest Care Ctr., Inc., 117 AD3d 633, 634 [1st Dept 2014]).
Next, plaintiff challenges the validity of the agreement. Plaintiff alleges that Standen,
the decedent’s sister and signee of the agreement as the purported designated
representative, had no legal authority to contract on behalf of the decedent or her estate.
Plaintiff asserts that the decedent was incapable of making medical decisions at the time
of her admission to Eastchester’s nursing facility because she had previously been in a
psychiatric facility for several years before her admission to Regency Extended Care
Center (hereinafter Regency), a long-term care nursing care facility located in the City of
Yonkers.2
Eastchester counters that the agreement is binding on the decedent’s estate as a
third-party beneficiary inasmuch as Standen had statutory and apparent authority to enter
into a validly binding contract for plaintiff’s benefit. Specifically, Eastchester asserts that
1
The complaint filed in the Bronx action was filed along with Eastchester’s motion.
2
The complaint alleges that the decedent was a resident at Regency’s facility from 2008 to
March 2016. As a named defendant, Regency filed a separate answer in the Bronx action and
does not oppose this motion.
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Standen is a statutorily designated representative of the decedent within the meaning of
10 NYCRR 415.2 (F) (1) (iii) since she was the family member most intimately involved
in the decedent’s affairs based on her steady communications with the facility.
Eastchester thus argues Standen had apparent authority to execute the agreement on
the decedent’s behalf.
The court finds plaintiff’s contentions challenging the agreement unavailing inasmuch
as plaintiff has not submitted any documents contradicting or disputing Standen’s
authority as the decedent’s designated representative. In contrast, Eastchester submits
a notarized, handwritten letter dated May 5, 2016 from Standen addressed to
Eastchester’s facility in which she states, among other things, that their “parents are
deceased” and the decedent’s mother, prior to her death, “gave me the rights to take care
of her” when the decedent was a resident at Regency.3 Additionally, Eastchester’s clinical
records evince that Standen was listed as her primary contact and designated
representative before execution of the agreement, and that medical professionals at the
facility periodically communicated and discussed the decedent’s condition with Standen.
Moreover, Eastchester’s progress notes from May 2016 evince that Standen occasionally
visited the decedent at the facility despite living “2 hours away.” Also, Eastchester’s
records notate that, although the decedent had been married over 10 years, Standen
conveyed to Eastchester that the decedent “was never divorced,” and that Standen was
of the belief that the decedent’s husband would not “make attempts to contact” her.
Importantly, Eastchester’s clinical records are filled with several entries that the facility
was in regular communication with Standen since the decedent’s admission to the facility
up to her date of death.
Furthermore, Section IV (a) (ii) of the agreement sets forth that “the [d]esignated
[r]epresentative is the individual designated to receive information and assist and/or act
on behalf of the [r]esident to the extent permitted by State law” and, among other
inapplicable grounds, “is identified by family members or other interested parties as the
individual most personally involved in the [r]esident's affairs, as discussed with the Facility
(if the Resident is unable to make the designation).” The statute cited to by plaintiff, 10
NYCRR 415.2 (F) (1) (iii), governs nursing homes and closely mirrors the language in the
agreement, providing that “[s]uch individual . . . shall be designated, with such designation
noted in the clinical record.” The record tends to demonstrate that Standen was such
individual. Moreover, plaintiff does not dispute the fact that Standen had been
unequivocally specified in Eastchester’s clinical records as the designated representative
for the decedent, well before the agreement had been executed by Standen in June 2016.
Thus, contrary to plaintiff's position, the agreement at issue is binding on the parties to
this litigation (see Puleo v Shore View Ctr. for Rehabilitation & Health Care, 132 AD3d
651, 653 [2d Dept 2015]; Casale v Sheepshead Nursing & Rehabilitation Ctr., 131 AD3d
436, 437 [2d Dept 2015]; see also Hendrickson v Birchwood Nursing Home Partnership,
26 AD3d 187, 187-188 [1st Dept 2006]; Buhler v French Woods Festival of Performing
Arts, Inc., 154 AD2d 303, 305 [1st Dept 1989]).
3
Standen’s letter concluded with “I am looking out for what is best for [the decedent].”
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Turning to the forum selection clause itself, the court also uphold its validity. It is well
settled that “[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” (Puleo v Shore View Ctr. for
Rehabilitation & Health Care, 132 AD3d at 652 [internal quotation marks omitted]; accord
Casale v Sheepshead Nursing & Rehabilitation Ctr., 131 AD3d 436, 437 [2d Dept 2015];
Molino v Sagamore, 105 AD3d 922, 923 [2d Dept 2013]).
Reviewing the agreement, page 8 contains the “general provisions” which includes
the forum selection clause as is set forth in Section X (a), titled “Governing Law.” It recites,
in relevant part, that “[a]ny and all actions arising out of or related to this [a]greement shall
be brought in, and the parties agree to exclusive jurisdiction of, the New York State
Supreme Court, located in Westchester County, New York.” The agreement also states
in Section X (b), titled “Binding Effect,” that it “shall be binding on the parties, their heirs,
administrators, distributes, successors and assignees.”4
Applying the governing legal principles here, the provision in the agreement reciting
that “[a]ny and all actions arising out of or related to th[e] [a]greement” is unambiguous
and includes all causes of action in connection with the decedent’s death at Eastchester’s
facility (see Couvertier v Concourse Rehabilitation & Nursing, Inc., 117 AD3d at 773;
Medina v Gold Crest Care Ctr., Inc., 117 AD3d at 634; Public Adm’r Bronx County v
Montefiore Med. Ctr., 93 AD3d at 621). Further, plaintiff failed to demonstrate 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, plaintiff would be deprived of
its day in court (see Puleo v Shore View Ctr. for Rehabilitation & Health Care, 132 AD3d
at 653; Casale v Sheepshead Nursing & Rehabilitation Ctr., 131 AD3d at 437; Couvertier
v Concourse Rehabilitation & Nursing, Inc., 117 AD3d at 773; Public Adm’r Bronx County
v Montefiore Med. Ctr., 93 AD3d at 621). Plaintiff also failed to show that the forum
selection clause was the result of fraud or overreaching (see Couvertier v Concourse
Rehabilitation & Nursing, Inc., 117 AD3d 772, 773 [2d Dept 2014]; see Public Adm’r Bronx
County v Montefiore Med. Ctr., 93 AD3d 620, 621 [1st Dept 2012]). Accordingly, the forum
selection clause is also binding on the parties to this litigation (see Puleo v Shore View
Ctr. for Rehabilitation & Health Care, 132 at 653; Casale v Sheepshead Nursing &
Rehabilitation Ctr., 131 AD3d at 437).
Also without merit is plaintiff’s argument that Eastchester’s motion is in derogation of
CPLR 511 (a) since it was not made in a reasonable time after commencement of the
Bronx action. Change of venue will not be barred by laches absent a showing of prejudice
(see Bonilla v Tishman Interiors Corp., 100 AD3d 673, 674 [2d Dept 2012]). Here,
although Eastchester did not move for a change of venue more than a year after
4
The agreement further provides that it “contains the entire understanding between the
Resident, Designated Representative . . . and the Facility” and “cannot be modified orally and any
changes must be in writing, signed by the parties to this [a]greement.” The parties to not aver that
subsequent modifications or changes were made to the agreement.
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commencing the Bronx action, the instant motion was filed less than five months after it
asserted the affirmative defenses of improper venue and the forum selection clause in
the Bronx action, alerting plaintiff of a potential change of venue. Nor does it appear that
significant discovery has taken place in the Bronx action (see id.). In any event, a motion
to change venue may be made at any time prior to the trial (see Gangi v DaimlerChrysler
Corp., 14 AD3d 482, 482 [2d Dept 2005]). Plaintiff has not alleged prejudice by the delay
or by the prospect of changing venue. Thus, the relief requested by Eastchester is not
barred by laches (see CPLR 503; Bonilla v Tishman Interiors Corp., 100 AD3d at 674;
Rizzuto v Aurelia Osborne Fox Mem. Hosp. Socy., 265 AD2d 471, 472 [2d Dept 1999];
Gennaro v Grossfeld, 186 AD2d 718, 718 [2d Dept 1992]). For the foregoing reasons,
Eastchester’s motion directing a change of venue from Bronx County to Westchester
County is granted and plaintiff’s cross motion to dismiss is denied.
The court has considered the additional contentions of the parties not specifically
addressed herein. To the extent any relief requested by the parties was not addressed
by the court, it is hereby denied. Accordingly, it is hereby:
ORDERED that the motion of EASTCHESTER REHABILITATION AND HEALTH
CARE CENTER, LLC s/h/a EASTCHESTER REHABILITATION AND HEALTH CARE
CENTER, LLC, EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC
d/b/a EASTCHESTER REHABILITATION AND HEALTH CARE CENTER,
EASTCHESTER REHABILITATION AND HEALTH CARE CENTER (“Eastchester”) (Mot.
Seq. 1), made pursuant to CPLR 501, 510 (1), and 511, for an order directing a change
of venue from Supreme Court, Bronx County to Supreme Court, Westchester County is
granted; and it is further
ORDERED that the cross motion of PUBLIC ADMINISTRATOR OF BRONX
COUNTY AS ADMINISTRATOR OF THE ESTATE OF GWEN FUENTES, DECEASED
(Mot. Seq. 2), made pursuant to CPLR 3211 (a) (4), for an order dismissing this action on
the grounds that there is another action between the same parties for the same causes
of action pending in Supreme Court, Bronx County under Index No.: 31893/2018E is
denied; and it is further
ORDERED that Eastchester is directed to serve a copy of this Decision/Order with
Notice of Entry upon plaintiff and the Clerk of the Supreme Court, Bronx County, who
shall then, pursuant to CPLR 511 (d), forthwith deliver to the Clerk of the Supreme Court,
Westchester County, all papers heretofore filed in the action and certified copies of all
minutes and entries, if any.
The foregoing constitutes the decision and order of the court.
Dated: May 7, 2020
White Plains, New York E N T E R:
______________________________
HON. LAWRENCE H. ECKER, J.S.C.
APPEARANCES: Parties appearing via NYSCEF. May 7, 2020, 11:40 a.m.
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To com m ence the statutory
tim e for appeals as of right
(CPLR 5513[a]), you are
advised to serve a copy
of this order, with notice
of entry, upon all parties.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
PRESENT: HON. SAM D. WALKER, J.S.C.
-------------------------------------------------------------------------x
HAZEL MARTINEZ, AS EXECUTOR OF THE ESTATE, DECISION AND ORDER
OF RUTH THORNTON, Deceased Index No. 67819/2019
Plaintiff, Motion Sequence 1
-against-
MORNINGSIDE NURSING AND REHABILITATION
CENTER, MORNINGSIDE ACQUISITION I, LLC and
CASSENA CARE, LLC,
Defendants.
-------------------------------------------------------------------------x
The following documents were read and considered on the motion to change
venue:
Notice of Motion/Affirmation/Exhibits A-C 1-5
Affirmation in Opposition/Exhibits 1-2 6-8
Reply Affirmation/Exhibits A-B 9-11
The plaintiff commenced this action in Bronx County on July 23, 2019 to recover
money damages for alleged personal injuries sustained by and the wrongful death of
Ruth Thornton. The complaint alleges causes of action sounding in negligence,
negligent hiring, negligent staffing, violations of PHL 2801-d, and wrongful death.
The defendants, Mornigside Acquisition I, LLC d/b/a Morningside Nursing and
Rehabilitation Center (“Morningside”) and Cassena Care, LLC (“Cassena”) file the
instant motion to change the venue of the action pursuant to CPLR 501 and CPLR
511[a] from Bronx County to Westchester County. The defendants argue that the venue
selection clause contained in the Admission Agreement, is legally binding and
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enforceable. The defendants argue that the venue selection clause is valid and
enforceable because Hazel Martinez had authority as the decedent’s designated
representative and because the decedent was a third-party beneficiary.
In opposition, the plaintiff argues that Morningside is deemed a resident of Bronx
County and the matter was properly venued in Bronx County. The plaintiff also argues
that the defendants have brought the instant motion in Westchester County, which is not
the proper county under CPLR 511[b].
In reply, the defendants argue that the the plaintiff’s opposition failed to raise a
legally cognizable basis for disregarding the venue selection clause contained within
Morningside’s Admission Agreement and case law has consistently held that venue
selectin clauses are prima facie valid and must be enforced, unless proven otherwise by
the challenging party.
Discussion
CPLR 501 states that:
Subject to the provisions of subdivision two of section 510, written
agreement fixing place of trial, made before an action is commenced, shall
be enforced upon a motion for change of place of trial (NY CPLR 501).
CPLR 510 provides that:
The court, upon motion, may change the place of trial of an action where:
1. the county designated for that purpose is not a proper county; or
2. there is reason to believe that an impartial trial cannot be had in the
proper county; or
3. the convenience of material witnesses and the ends of justice will be
promoted by the change. (CPLR 510).
CPLR 511 provides in pertinent part that:
[a] Time for motion or demand. A demand under subdivision (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
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FILED: WESTCHESTER COUNTY CLERK 11/09/2020 04:00 PM INDEX NO. 67819/2019
64205/2020
NYSCEF DOC.
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FILED: WESTCHESTER COUNTY CLERK 11/09/2020 04:00 PM INDEX NO. 69498/2019 64205/2020 NYSCEF DOC. NO. 32 9 RECEIVED NYSCEF: 03/13/2020 11/09/2020 To com m ence th e s ta tu to ry tim e SUPREM E COURT OF THE STATE OF NEW YORK p e rio d fo ra p p e a ls as of rig h t (C P L R COUNTY OF W ESTCHESTER 5 5 1 3 (a ]), you a rea d v is e d to se rv e a copy of th iso rd e r, w ith n o tic e of e n try , upon a ll p a rtie s . PRESENT: HON. MARY H. SMITH JUSTICE OF THE SUPREME COURT A L E X IS ALM ONTE as A d m in is tra to rof th e ESTATE of C A R L IT A ALM ONTE, ORDER P la in tiff( s), In d e xN o .: 6 9 4 9 8 /2 0 1 9 M o tio n D a te : 1 /3 1 /2 0 1 9 -a g a in s t- JE W IS H HOME L IF E C A R E HARRY AND JE A N E T T E W E IN B E R G CAM PUS, BRONX; JE W IS H HOME L IF E C A R E ; THE NEW JE W IS H HOM E, BRONX; SENTOSACARE, LLC; THE PLAZA REHAB AND N U R S IN G CENTER; and TCPRNC LLC, D e fe n d a n t(s ). - - -------- -_ ..------- ------ -'- -------- --------- - - ------ - - - ------ --- - - - - - -- --- D e fe n d a n ts TCPRNC L L C d /b /a The P la z a R ehab and N u rs in g C e n te rand S e n to c a re , LLC m ove (M o tio n #1) to change venue. D e fe n d a n ts J e w is hH om e L ife c a re , H a rry and J e a n e tte W e in b e rgC am pus, B ro n x ,and J e w is hH om e L ife c a re , M a n h a tta ns /h /a J e w is hH om e L ife c a re , The N ew J e w is hH om e, B ro n x c ro ss-m o v e (M o tiO n #2) fo r th e sam e re lie f. The fo llo w in gp a p e rsw e re re a d : N o tic e of M o tio n (# 1 ),A ffirm a tio n , and E x h ib its(4 ) 1 -6 A ffirm a tio n in O p p o s itio n 7 A ffirm a tio n in R e p ly 8 N o tic e of C ro s s -M o tio n(# 2 ),A ffirm a tio n ,and E x h ib its(4 ) 9 -1 4 A ffirm a tio n in O p p o s itio n 15 A ffirm a tio n in R e p ly 16 By w ay of b a c k g ro u n d , p la in tiff com m enced th is a c tio n fo r p e rso n a l in ju rie sin th e S u p re m e C o u rt,B ro n x C o u n ty . D e fe n d a n ts TCPRNC LLC d /b /a The P la z aR ehab and N u rs in g C e n te rand S e n to s a c a re , LLC now m ove (M o tio n # 1) p re -a n sw e rto change venue. D e fe n d a n ts J e w is hH om e L ife c a re , H a rry and J e a n e tte W e in b e rg C am pus, B ro n x , and J e w is hH om e L ife c a re , M a n h a tta ns /h /a J e w is hH om e L ife c a re , The N ew J e w is h 1 1 of 2 FILED: WESTCHESTER COUNTY CLERK 11/09/2020 04:00 PM INDEX NO. 69498/2019 64205/2020 NYSCEF DOC. NO. 32 9 RECEIVED NYSCEF: 03/13/2020 11/09/2020 H om e, B ro n x a lso m ove (M o tio n #2) p re -a n sw e r to change venue. In su p p o rtof th e m o tio n s,d e fe n d a n ts n o te th a tth e p a rtie se n te re din to a w ritte n a g re e m e n t w h ic hp ro v id e d , in re le v a n t p a rt, th a tth ep a rtie s w o u ld su b m it any m a tte ra risin g under or re la tin gto th ep a rtie s'a g re e m e n t to th e ju risd ic tio nof th e c o u rtsof th e sta te of N ew Y o rk in th e C o u n tyof W e stc h e ste r. B a se d h e re o n , under CPLR 501, d e fe n d a n ts c o n te n d th a tvenue of th isa c tio nm u st be changed to W e stc h e ste rC o u n ty . In o p p o sitio n , p la in tiffa sse rtsth a td e fe n d a n ts fa ile d to c o m p ly w ith th e c o n d itio n of CPLR 511, w h ic h re q u ire sth e se rv ic e of a dem and to change venue fo llo w e d by a m o tio n .H e re ,p la in tiff c o n te n d s, d e fe n d a n ts d id not se rv e su c h a dem and. CPLR 510 p ro v id e s in re le v a n t p a rt th a tth e C o u rtm ay change th e p la c eof tria lof an a c tio nw h e reth e c o u n tyd e sig n a te d fo rth a tp u rp o seis not a p ro p e rc o u n ty . CPLR 501 p ro v id e s in re le v a n t p a rtth a tth a t " w ritte n a g re e m e n t fix in g p la c eof tria l,m ade b e fo rean a c tio nis com m enced, sh a llbe e n fo rc e dupon a m o tio n fo r change of p la c eof tria l." A p a rty m o v in g under CPLR 501 to change venue is not re q u ire dto se rv e th e dem and p ro v id e dfo r in CPLR 511 (see Puleo v Shore View Ctr. for Rehabilitation and Health Care, 132 A D 3d 651, 652 [2 d D ept 2 0 1 5 ])."A c o n tra c tu a l fo ru m se le c tio n c la u seis p rim a fa c iev a lidand e n fo rc e a b le u n le ssitis sh o w n by th e c h a lle n g in g p a rty to be u n re a so n a b le , u n ju st,in c o n tra v e n tio n o f p u b lic p o lic y , in v a lid due to fra u dor o v e rre a c h in g , or it is sh o w n th a ta tria l in th e se le c te dfo ru m w o u ld be so g ra v e lyd iffic u lt th a tth e c h a lle n g in g p a rty w o u ld ,fo r a llp ra c tic a l p u rp o se s, be d e p riv e d of its day in c o u rt"(id .,in te rn a l q u o ta tio n m a rk s o m itte d ).H e re , p la in tifffa ile d to sh o w th a te n fo rc e m e n t of th e fo ru m se le c tio n c la u sew o u ld be u n re a so n a b le , u n ju st,or in c o n tra v e n tio n of p u b licp o lic y ,or th a tth e in c lu sio nof th e fo ru m se le c tio nc la u se in th e a g re e m e n t w as th e re su lt of fra u d or o v e rre a c h in g . To th e e x te n t not sp e c ific a lly a d d re sse dh e re in , th e C o u rtfin d s p la in tiffs re m a in in ga rg u m e n ts to be w ith o u tm e rit.A c c o rd in g ly , M o tio n ## 1 and 2 a re g ra n te d ; th e m o v a n tsa re d ire c te dto su b m it p ro p o se d 'o rd e rw ith in 20 days h e re o f;th e m o v a n tsa re re m in d e dth a tth isp a rtre q u ire sth esu b m issio n of w o rk in g c o p ie s. D a te d : M a rc h If, 2020 W h ite P la in s, N ew Y o rk HON. RY H. S M IT H Ju stic e of th e S u p re m eC o u rt 2 2 of 2 FILED: WESTCHESTER COUNTY CLERK 11/09/2020 04:00 PM INDEX NO. 68372/2019 64205/2020 NYSCEF DOC. NO. 36 9 RECEIVED NYSCEF: 05/07/2020 11/09/2020 To commence the statutory time for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER -----------------------------------------------------------------------X PUBLIC ADMINISTRATOR OF BRONX COUNTY, as the ADMINISTRATOR OF THE INDEX NO. 68372/2019 ESTATE OF GWEN FUENTES, deceased Plaintiff, DECISION/ORDER - against - REGENCY EXTENDED CARE CENTER, Mot. Seqs. 1 & 2 HUDSON VIEW CARE CENTER, INC., HUDSON Submit Date: 2/26/2020 VIEW CARE CENTER, INC. d/b/a REGENCY EXTENDED CARE CENTER, EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC, EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC d/b/a EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, ST. JOSEPH'S MEDICAL CENTER, Defendants. -------------------------------------------------------------------------X ECKER, J. In accordance with CPLR 2219 (a), the decision herein is made upon consideration of all papers filed in NYSCEF as submitted regarding the the motion of defendants EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC s/h/a EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC, EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC d/b/a EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, EASTCHESTER REHABILITATION AND HEALTH CARE CENTER (“Eastchester”) (Mot. Seq. 1), made pursuant to CPLR 501, 510 (1), and 511, for an order directing a change of venue from Bronx County to Westchester County; and the cross motion of plaintiff, PUBLIC ADMINISTRATOR OF BRONX COUNTY AS ADMINISTRATOR OF THE ESTATE OF GWEN FUENTES, DECEASED (Mot. Seq. 2), made pursuant to CPLR 3211 (a) (4), for an order dismissing this action on the grounds that there is another action between the same parties for the same causes of action pending in Supreme Court, Bronx County under Index No.: 31893/2018E. -1- 1 of 5 FILED: WESTCHESTER COUNTY CLERK 11/09/2020 04:00 PM INDEX NO. 68372/2019 64205/2020 NYSCEF DOC. NO. 36 9 RECEIVED NYSCEF: 05/07/2020 11/09/2020 Gwen Fuentes (hereinafter the decedent) was a resident of the Eastchester Rehabilitation and Health Care Center, Inc. (hereinafter Eastchester), a residential health care facility located in the Bronx, from April 28, 2016, until her death in June 28, 2016. After decedent’s admission to the facility, Sandra L. Standen, the decedent’s sister as her “designated representative,” signed an “Admission Agreement” (hereinafter the agreement), dated June 6, 2016, that contains a forum selection clause which is disputed in this litigation. While a resident at Eastchester’s facility and other nursing homes, the decedent allegedly sustained physical injuries due to negligent care resulting in her death. In October 2018, plaintiff, as the administrator of the decedent’s estate, commenced an action in Supreme Court, Bronx County under Index No. 31893/2018E, alleging, inter alia, causes of action to recover damages for wrongful death, negligence, and violations of the Public Health Law (hereinafter the Bronx action). In June 2019, Eastchester filed an answer raising, as relevant here, improper venue and the forum selection clause as affirmative defenses. In October 2019, Eastchester served plaintiff with a written demand to change venue. Plaintiff, in turn, denied Eastchester’s demand on the grounds that the decedent was a resident of Bronx County at the time of her death, and because the Surrogate Court, Bronx County issued letters of administration to plaintiff in May 2018. In November 2019, Eastchester filed the instant motion in this court to change venue of the action from Bronx County to Westchester County based on the forum selection 1 clause contained in the agreement. Plaintiff filed a cross motion pursuant to CPLR 3211 (a) (4) to dismiss this action on the grounds that there is a prior action pending. Contrary to plaintiff’s contention, since Eastchester moved to change venue based on the agreement, Eastchester was not required to serve a written demand for a change of venue with or prior to filing its answer, before making the instant motion (see CPLR 501; Medina v Gold Crest Care Ctr., Inc., 117 AD3d 633, 634 [1st Dept 2014]). Next, plaintiff challenges the validity of the agreement. Plaintiff alleges that Standen, the decedent’s sister and signee of the agreement as the purported designated representative, had no legal authority to contract on behalf of the decedent or her estate. Plaintiff asserts that the decedent was incapable of making medical decisions at the time of her admission to Eastchester’s nursing facility because she had previously been in a psychiatric facility for several years before her admission to Regency Extended Care Center (hereinafter Regency), a long-term care nursing care facility located in the City of Yonkers.2 Eastchester counters that the agreement is binding on the decedent’s estate as a third-party beneficiary inasmuch as Standen had statutory and apparent authority to enter into a validly binding contract for plaintiff’s benefit. Specifically, Eastchester asserts that 1 The complaint filed in the Bronx action was filed along with Eastchester’s motion. 2 The complaint alleges that the decedent was a resident at Regency’s facility from 2008 to March 2016. As a named defendant, Regency filed a separate answer in the Bronx action and does not oppose this motion. -2- 2 of 5 FILED: WESTCHESTER COUNTY CLERK 11/09/2020 04:00 PM INDEX NO. 68372/2019 64205/2020 NYSCEF DOC. NO. 36 9 RECEIVED NYSCEF: 05/07/2020 11/09/2020 Standen is a statutorily designated representative of the decedent within the meaning of 10 NYCRR 415.2 (F) (1) (iii) since she was the family member most intimately involved in the decedent’s affairs based on her steady communications with the facility. Eastchester thus argues Standen had apparent authority to execute the agreement on the decedent’s behalf. The court finds plaintiff’s contentions challenging the agreement unavailing inasmuch as plaintiff has not submitted any documents contradicting or disputing Standen’s authority as the decedent’s designated representative. In contrast, Eastchester submits a notarized, handwritten letter dated May 5, 2016 from Standen addressed to Eastchester’s facility in which she states, among other things, that their “parents are deceased” and the decedent’s mother, prior to her death, “gave me the rights to take care of her” when the decedent was a resident at Regency.3 Additionally, Eastchester’s clinical records evince that Standen was listed as her primary contact and designated representative before execution of the agreement, and that medical professionals at the facility periodically communicated and discussed the decedent’s condition with Standen. Moreover, Eastchester’s progress notes from May 2016 evince that Standen occasionally visited the decedent at the facility despite living “2 hours away.” Also, Eastchester’s records notate that, although the decedent had been married over 10 years, Standen conveyed to Eastchester that the decedent “was never divorced,” and that Standen was of the belief that the decedent’s husband would not “make attempts to contact” her. Importantly, Eastchester’s clinical records are filled with several entries that the facility was in regular communication with Standen since the decedent’s admission to the facility up to her date of death. Furthermore, Section IV (a) (ii) of the agreement sets forth that “the [d]esignated [r]epresentative is the individual designated to receive information and assist and/or act on behalf of the [r]esident to the extent permitted by State law” and, among other inapplicable grounds, “is identified by family members or other interested parties as the individual most personally involved in the [r]esident's affairs, as discussed with the Facility (if the Resident is unable to make the designation).” The statute cited to by plaintiff, 10 NYCRR 415.2 (F) (1) (iii), governs nursing homes and closely mirrors the language in the agreement, providing that “[s]uch individual . . . shall be designated, with such designation noted in the clinical record.” The record tends to demonstrate that Standen was such individual. Moreover, plaintiff does not dispute the fact that Standen had been unequivocally specified in Eastchester’s clinical records as the designated representative for the decedent, well before the agreement had been executed by Standen in June 2016. Thus, contrary to plaintiff's position, the agreement at issue is binding on the parties to this litigation (see Puleo v Shore View Ctr. for Rehabilitation & Health Care, 132 AD3d 651, 653 [2d Dept 2015]; Casale v Sheepshead Nursing & Rehabilitation Ctr., 131 AD3d 436, 437 [2d Dept 2015]; see also Hendrickson v Birchwood Nursing Home Partnership, 26 AD3d 187, 187-188 [1st Dept 2006]; Buhler v French Woods Festival of Performing Arts, Inc., 154 AD2d 303, 305 [1st Dept 1989]). 3 Standen’s letter concluded with “I am looking out for what is best for [the decedent].” -3- 3 of 5 FILED: WESTCHESTER COUNTY CLERK 11/09/2020 04:00 PM INDEX NO. 68372/2019 64205/2020 NYSCEF DOC. NO. 36 9 RECEIVED NYSCEF: 05/07/2020 11/09/2020 Turning to the forum selection clause itself, the court also uphold its validity. It is well settled that “[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” (Puleo v Shore View Ctr. for Rehabilitation & Health Care, 132 AD3d at 652 [internal quotation marks omitted]; accord Casale v Sheepshead Nursing & Rehabilitation Ctr., 131 AD3d 436, 437 [2d Dept 2015]; Molino v Sagamore, 105 AD3d 922, 923 [2d Dept 2013]). Reviewing the agreement, page 8 contains the “general provisions” which includes the forum selection clause as is set forth in Section X (a), titled “Governing Law.” It recites, in relevant part, that “[a]ny and all actions arising out of or related to this [a]greement shall be brought in, and the parties agree to exclusive jurisdiction of, the New York State Supreme Court, located in Westchester County, New York.” The agreement also states in Section X (b), titled “Binding Effect,” that it “shall be binding on the parties, their heirs, administrators, distributes, successors and assignees.”4 Applying the governing legal principles here, the provision in the agreement reciting that “[a]ny and all actions arising out of or related to th[e] [a]greement” is unambiguous and includes all causes of action in connection with the decedent’s death at Eastchester’s facility (see Couvertier v Concourse Rehabilitation & Nursing, Inc., 117 AD3d at 773; Medina v Gold Crest Care Ctr., Inc., 117 AD3d at 634; Public Adm’r Bronx County v Montefiore Med. Ctr., 93 AD3d at 621). Further, plaintiff failed to demonstrate 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, plaintiff would be deprived of its day in court (see Puleo v Shore View Ctr. for Rehabilitation & Health Care, 132 AD3d at 653; Casale v Sheepshead Nursing & Rehabilitation Ctr., 131 AD3d at 437; Couvertier v Concourse Rehabilitation & Nursing, Inc., 117 AD3d at 773; Public Adm’r Bronx County v Montefiore Med. Ctr., 93 AD3d at 621). Plaintiff also failed to show that the forum selection clause was the result of fraud or overreaching (see Couvertier v Concourse Rehabilitation & Nursing, Inc., 117 AD3d 772, 773 [2d Dept 2014]; see Public Adm’r Bronx County v Montefiore Med. Ctr., 93 AD3d 620, 621 [1st Dept 2012]). Accordingly, the forum selection clause is also binding on the parties to this litigation (see Puleo v Shore View Ctr. for Rehabilitation & Health Care, 132 at 653; Casale v Sheepshead Nursing & Rehabilitation Ctr., 131 AD3d at 437). Also without merit is plaintiff’s argument that Eastchester’s motion is in derogation of CPLR 511 (a) since it was not made in a reasonable time after commencement of the Bronx action. Change of venue will not be barred by laches absent a showing of prejudice (see Bonilla v Tishman Interiors Corp., 100 AD3d 673, 674 [2d Dept 2012]). Here, although Eastchester did not move for a change of venue more than a year after 4 The agreement further provides that it “contains the entire understanding between the Resident, Designated Representative . . . and the Facility” and “cannot be modified orally and any changes must be in writing, signed by the parties to this [a]greement.” The parties to not aver that subsequent modifications or changes were made to the agreement. -4- 4 of 5 FILED: WESTCHESTER COUNTY CLERK 11/09/2020 04:00 PM INDEX NO. 68372/2019 64205/2020 NYSCEF DOC. NO. 36 9 RECEIVED NYSCEF: 05/07/2020 11/09/2020 commencing the Bronx action, the instant motion was filed less than five months after it asserted the affirmative defenses of improper venue and the forum selection clause in the Bronx action, alerting plaintiff of a potential change of venue. Nor does it appear that significant discovery has taken place in the Bronx action (see id.). In any event, a motion to change venue may be made at any time prior to the trial (see Gangi v DaimlerChrysler Corp., 14 AD3d 482, 482 [2d Dept 2005]). Plaintiff has not alleged prejudice by the delay or by the prospect of changing venue. Thus, the relief requested by Eastchester is not barred by laches (see CPLR 503; Bonilla v Tishman Interiors Corp., 100 AD3d at 674; Rizzuto v Aurelia Osborne Fox Mem. Hosp. Socy., 265 AD2d 471, 472 [2d Dept 1999]; Gennaro v Grossfeld, 186 AD2d 718, 718 [2d Dept 1992]). For the foregoing reasons, Eastchester’s motion directing a change of venue from Bronx County to Westchester County is granted and plaintiff’s cross motion to dismiss is denied. The court has considered the additional contentions of the parties not specifically addressed herein. To the extent any relief requested by the parties was not addressed by the court, it is hereby denied. Accordingly, it is hereby: ORDERED that the motion of EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC s/h/a EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC, EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, LLC d/b/a EASTCHESTER REHABILITATION AND HEALTH CARE CENTER, EASTCHESTER REHABILITATION AND HEALTH CARE CENTER (“Eastchester”) (Mot. Seq. 1), made pursuant to CPLR 501, 510 (1), and 511, for an order directing a change of venue from Supreme Court, Bronx County to Supreme Court, Westchester County is granted; and it is further ORDERED that the cross motion of PUBLIC ADMINISTRATOR OF BRONX COUNTY AS ADMINISTRATOR OF THE ESTATE OF GWEN FUENTES, DECEASED (Mot. Seq. 2), made pursuant to CPLR 3211 (a) (4), for an order dismissing this action on the grounds that there is another action between the same parties for the same causes of action pending in Supreme Court, Bronx County under Index No.: 31893/2018E is denied; and it is further ORDERED that Eastchester is directed to serve a copy of this Decision/Order with Notice of Entry upon plaintiff and the Clerk of the Supreme Court, Bronx County, who shall then, pursuant to CPLR 511 (d), forthwith deliver to the Clerk of the Supreme Court, Westchester County, all papers heretofore filed in the action and certified copies of all minutes and entries, if any. The foregoing constitutes the decision and order of the court. Dated: May 7, 2020 White Plains, New York E N T E R: ______________________________ HON. LAWRENCE H. ECKER, J.S.C. APPEARANCES: Parties appearing via NYSCEF. May 7, 2020, 11:40 a.m. -5- 5 of 5 FILED: WESTCHESTER COUNTY CLERK 11/09/2020 04:00 PM INDEX NO. 67819/2019 64205/2020 NYSCEF DOC. NO. 17 9 RECEIVED NYSCEF: 04/28/2020 11/09/2020 To com m ence the statutory tim e for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PRESENT: HON. SAM D. WALKER, J.S.C. -------------------------------------------------------------------------x HAZEL MARTINEZ, AS EXECUTOR OF THE ESTATE, DECISION AND ORDER OF RUTH THORNTON, Deceased Index No. 67819/2019 Plaintiff, Motion Sequence 1 -against- MORNINGSIDE NURSING AND REHABILITATION CENTER, MORNINGSIDE ACQUISITION I, LLC and CASSENA CARE, LLC, Defendants. -------------------------------------------------------------------------x The following documents were read and considered on the motion to change venue: Notice of Motion/Affirmation/Exhibits A-C 1-5 Affirmation in Opposition/Exhibits 1-2 6-8 Reply Affirmation/Exhibits A-B 9-11 The plaintiff commenced this action in Bronx County on July 23, 2019 to recover money damages for alleged personal injuries sustained by and the wrongful death of Ruth Thornton. The complaint alleges causes of action sounding in negligence, negligent hiring, negligent staffing, violations of PHL 2801-d, and wrongful death. The defendants, Mornigside Acquisition I, LLC d/b/a Morningside Nursing and Rehabilitation Center (“Morningside”) and Cassena Care, LLC (“Cassena”) file the instant motion to change the venue of the action pursuant to CPLR 501 and CPLR 511[a] from Bronx County to Westchester County. The defendants argue that the venue selection clause contained in the Admission Agreement, is legally binding and 1 of 5 FILED: WESTCHESTER COUNTY CLERK 11/09/2020 04:00 PM INDEX NO. 67819/2019 64205/2020 NYSCEF DOC. NO. 17 9 RECEIVED NYSCEF: 04/28/2020 11/09/2020 enforceable. The defendants argue that the venue selection clause is valid and enforceable because Hazel Martinez had authority as the decedent’s designated representative and because the decedent was a third-party beneficiary. In opposition, the plaintiff argues that Morningside is deemed a resident of Bronx County and the matter was properly venued in Bronx County. The plaintiff also argues that the defendants have brought the instant motion in Westchester County, which is not the proper county under CPLR 511[b]. In reply, the defendants argue that the the plaintiff’s opposition failed to raise a legally cognizable basis for disregarding the venue selection clause contained within Morningside’s Admission Agreement and case law has consistently held that venue selectin clauses are prima facie valid and must be enforced, unless proven otherwise by the challenging party. Discussion CPLR 501 states that: Subject to the provisions of subdivision two of section 510, written agreement fixing place of trial, made before an action is commenced, shall be enforced upon a motion for change of place of trial (NY CPLR 501). CPLR 510 provides that: The court, upon motion, may change the place of trial of an action where: 1. the county designated for that purpose is not a proper county; or 2. there is reason to believe that an impartial trial cannot be had in the proper county; or 3. the convenience of material witnesses and the ends of justice will be promoted by the change. (CPLR 510). CPLR 511 provides in pertinent part that: [a] Time for motion or demand. A demand under subdivision (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 2 of 5 FILED: WESTCHESTER COUNTY CLERK 11/09/2020 04:00 PM INDEX NO. 67819/2019 64205/2020 NYSCEF DOC.