Preview
FILED: WESTCHESTER COUNTY CLERK 02/16/2021 05:18 PM INDEX NO. 64205/2020
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/16/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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KEVIN LYNCH as Administrator of the Estate of ROSE Index No. 64205/2020
BOUKNIGHT,
Bronx Index No.: 26889/2020E
Plaintiffs,
OPPOSITION TO
-against- PLAINTIFF’S MOTION TO
RENEW AND REARGUE
MONTEFIORE MEDICAL CENTER, GLEN ISLAND
CENTER FOR NURSING AND REHABILITATION and
JOPAL BRONX LLC d/b/a WORKMEN’S CIRCLE
MULTICARE CENTER,
Defendants,
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GONZALO G. SUAREZ, an attorney duly admitted to practice law in the Courts of the
State of New York, hereby affirms the following pursuant to the penalties of perjury pursuant to
CPLR § 2106:
1. I am an associate of the law firm of KAUFMAN BORGEEST & RYAN LLP,
attorneys for Defendant JOPAL BRONX, LLC d/b/a WOMAN’S CIRCLE MULTICARE
CENTER (hereinafter “JOPAL”), and as such, am familiar with the facts and circumstances set
forth herein.
2. This Affirmation is submitted upon information and belief, the sources of which
are the files and records maintained by the law offices of Kaufman Borgeest & Ryan LLP
pertaining to this matter.
3. This Affirmation is submitted in Opposition to plaintiff’s motion pursuant to CPLR
2221 for leave to renew or reargue the motion to transfer venue by Defendant JOPAL, and upon
re-argument reverse the Court’s decision that this matter be transferred to Westchester County
pursuant to CPLR §§ 501, 510(i) and 511(b).
4. At the outset it should be noted that plaintiff has failed to move to vacate the prior
Order pursuant to CPLR § 5015. To the extent that plaintiff did not oppose the defendant’s
motion to change venue, plaintiff can not now move to reargue without first moving to vacate.
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Under CPLR § 5015, a party seeking to vacate an Order granted upon prior default is required
to demonstrate both a reasonable excuse for the default and potentially meritorious opposition
to the motion. See Garcia v. City of New York, 189 A.D. 3d 788 (App. Div. 2d Dep’t. 2020);
Hamilton v. New York Hospital Queens, 183 A.D. 3d 621 (App. Div. 2d Dep’t. 2020). Plaintiff
contends that the motion papers were not received and plaintiff’s substantive contentions in
opposition to the underlying motion are spurious and run contrary to long established rules
concerning the enforcement on contracts, including those with venue selection causes. Plaintiff
has failed to meet the criteria to vacate the Court’s underlying Order which changed venue from
Bronx County to Westchester County. Should the Court choose to decide the motion to reargue
despite the omission which defendant contends is fatal, plaintiff has similarly failed to meet the
requisite burden on a motion for either renewal or reargument as detailed below.
5. Plaintiff’s motion fails to establish that the Court overlooked or misapprehended
any matters of fact or misapplied a controlling principal of law in granting transfer of venue to
JOPAL. This Court correctly determined that transfer of venue in the instant matter was
appropriate. Moreover, plaintiff is incorrect in asserting that their office was not provided with an
opportunity to submit opposition by stating that “plaintiffnever received the motion via regular
mail.” See Plaintiff’s Affirmation Paragraph 11. The Affidavit of Service (NYSCEF Document
#11) provided by this office is prima facie evidence that the Notice of Motion and annexed
exhibits have been exchanged. Finally, despite a blunderbuss of purported reasons why the
motion should not have been granted, there is not a shred of evidence to support any of
Plaintiff’s contentions.
POINT I
PLAINTIFF FAILS TO OFFER THIS COURT ANY LEGITIMATE BASIS
TO GRANT REARGUMENT
6. Plaintiff wrongly asserts that leave to reargue “shall be freely given” when based
upon misapprehension of law or fact. In reality, controlling First and Second Department
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Appellate Division precedent holds that the decision to grant a motion to reargue lies within the
sound discretion of the court which decided the prior motion and may be granted upon a
showing that the court overlooked or misapprehended the facts or law or for some other reason
mistakenly arrived at its earlier decision E.W. Howell Co. v. S.A.F. La Sala Corp., 36 A.D.3d
653, 654, 828 N.Y.S.2d 212 (2d Dept. 2007); Salcedo v. Demon Trucking, Inc., 146 A.D.3d 839,
840, 44 N.Y.S.3d 543, 545 (2d Dept. 2017) (holding that the Supreme Court improvidently
exercised its discretion in granting reargument, where the movant failed to demonstrate that the
court overlooked or misapprehend a matter of fact or law).
7. “While the determination to grant leave to reargue a motion lies within the sound
discretion of the court, a motion for leave to reargue is not designed to provide an unsuccessful
party with successive opportunities to reargue issues previously decided, or to present
arguments different from those originally presented” Ahmed v. Pannone, 116 A.D.3d 802, 805,
984 N.Y.S.2d 104, 107 (2d Dept. 2014) (holding the Court improvidently exercised its discretion
in granting reargument as plaintiff failed to demonstrate the Court overlooked or
misapprehended any matters of fact or law in determining Defendants’ motions for summary
judgment.); see also, Williams v Abiomed, Inc., 173 AD3d 1115 (2d Dept. 2019) (order granting
reargument reversed where the movant “merely sought to restate its earlier arguments rather
than point out matters of fact or law allegedly overlooked or misapprehended”).
8. Here, Plaintiff’s current application is nothing more than an effort to circumvent
their clerical error in not providing opposition to the underlying motion. As noted by the Affidavit
of Service (NYSCEF Document #11), the Notice of Motion with Supporting Documents was
originally served by physical copy on plaintiff’s office on November 10, 2020. Clearly, the Notice
of Motion with Supporting Documents was submitted to all parties, including plaintiff, through a
means acceptable by the CPLR, physical mail. Nowhere in the COVID executive orders, nor the
administrative orders issued by this Court system, is itrequired that a Notice of Motion be e-
mailed to a party. Furthermore, plaintiff’s position that a “courtesy copy” was not filed under the
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original Bronx County Index Number is disingenuous at best as the NYSCEF system does not
allow filing of motions from another county into the system. The fact that plaintiff’scounsel’s
office failed to open and review a motion which was physically delivered to their office does not
raise sufficient evidence to show that the Court overlooked or misapprehended the facts or law.
In fact, the Court had the opportunity to review and reject the affidavit of service which was
appropriately uploaded to the NYSCEF and did not do so.
9. A bald denial of receipt of process served by mail is insufficient to rebut the
inference of proper mailing that arises from a properly executed affidavit of service. See Kihl v.
Pfeffer, 94 N.Y.2d 118, 700 N.Y.S.2d 87, 722 N.E.2d 55 (1999); Facey v. Heyward, 244 A.D.2d
452, 664 N.Y.S.2d 119 (2d Dep't 1997); Spangenberg v. Chaloupka, 229 A.D.2d 482, 645
N.Y.S.2d 514 (2d Dep't 1996); European American Bank v. Abramoff, 201 A.D.2d 611, 608
N.Y.S.2d 233 (2d Dep't 1994).
10. Similarly, plaintiff's mere or bare denial of service is insufficient to rebut the prima
facie proof or the presumption of proper service created by an affidavit of service. See
Pasanella v. Quinn, 126 A.D.3d 504, 5 N.Y.S.3d 413 (1st Dep't 2015); Board of Managers of
Foundry at Washington Park Condominium v. Foundry Development Co., Inc., 111 A.D.3d 776,
975 N.Y.S.2d 456 (2d Dep't 2013) (the defendant's conclusory and unsubstantiated denial of
service lacked the factual specificity and detail required to rebut the prima facie proof of proper
service set forth in the process server's affidavit of service); City of New York v. Miller, 72
A.D.3d 726, 898 N.Y.S.2d 643 (2d Dep't 2010); Slimani v. Citibank, N.A., 47 A.D.3d 489, 849
N.Y.S.2d 541 (1st Dep't 2008); Wunsch v. Cerwinski, 36 A.D.3d 612, 828 N.Y.S.2d 157 (2d
Dep't 2007). See also Rabinowitz v. Rabinowitz, 137 A.D.3d 884, 28 N.Y.S.3d 70 (2d Dep't
2016) (an affidavit by the defendant that is conclusory and unsubstantiated is not sufficient to
rebut the presumption of proper service); Abdelqader v. Abdelqader, 120 A.D.3d 1275, 993
N.Y.S.2d 71 (2d Dep't 2014), leave to appeal dismissed, 25 N.Y.3d 1031, 10 N.Y.S.3d 513, 32
N.E.3d 950 (2015); Rodriguez v. Rodriguez, 103 A.D.3d 117, 957 N.Y.S.2d 699 (2d Dep't
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2012); Reich v. Redley, 96 A.D.3d 1038, 947 N.Y.S.2d 564 (2d Dep't 2012); U.S. Bank Nat.
Ass'n v. Hossain, 94 A.D.3d 979, 943 N.Y.S.2d 140 (2d Dep't 2012).
11. Plaintiff’s counsel fails to provide any tangible evidence that they did not receive
the motion. They fail to provide any evidence to rebut the prima facie proof of proper service set
forth in the affidavit of service. Notwithstanding the lack of evidence, should the Court grant the
motion to reargue, the underlying decision changing venue was proper in all respects and this
remains the case despite plaintiff’s unsupported arguments to the contrary, which are
addressed below.
POINT II
PLAINTIFF’S ARGUMENT THAT THERE IS NO PROOF THAT PLAINTIFF’S
DECEDENT NOR ANY PARTY WITH APPARENT AUTHORITY SIGNED THE
AGREEMENT FLIES IN THE FACE OF COMMON SENSE, THE LAW,
AND THE PLAIN, UNAMBIGUOUS TERMS OF THE ADMISSION AGREEMENT
9. Should this Court grant plaintiff’s motion to reargue the motion to change venue,
the motion should stillbe granted as plaintiff’s position regarding the Admission Agreement is
incorrect and without merit. Plaintiff’s argument that no one with apparent authority signed the
Admission Agreement is without merit. Plaintiff himself, the Decedent’s son, and the
Administrator of his estate, signed the agreement – this is the very same scenario that was
present in multiple other cases against this same exact plaintiff’s firm, which the Court has
decided in defendant’s favor. See Plass v. Brookdale (Index No: 507832/2020), and most
recently Hubbard v. Four Seasons (514223/2020) (which was granted on February 5, 2021 after
oral argument however it has not been transcribed and entered at this point) annexed
collectively with other decisions as Exhibit “1”. Neither Plaintiff nor his counsel disputes the
fact that plaintiff signed the Agreement or that it is his signature transcribed to the Admissions
contract. Furthermore, plaintiff’s counsel admits that the plaintiff’s decedent suffered from
dementia and lacked the ability to sign on her own behalf. See Plaintiff’s Affirmation Paragraph
17. Likewise, Plaintiff’s counsel fail to provide any case law that supports the absurd notion that
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one’s son lacks the authority to enter into contracts on behalf of an incapacitated mother in
order to facilitate the admission and care of the aforesaid debilitated mother. Plaintiff’s counsel
failed to offer any evidence that at the time Plaintiff himself signed the Admission Agreement he
was not acting on behalf or in the interests of his mother as her agent.
10. The term “Designated Representative” has a specific meaning within the law. It
means that the person acting in that capacity has the ability to assist and/or act on behalf of a
particular resident. Despite being given the opportunity when crafting their papers, Plaintiff’s
counsel utterly abrogated their duty to support the argument that plaintiff lacked as a matter of
law the authority to assist and/or act on behalf of her husband. This is because the argument
has no basis in either law or fact and is thus, unsupportable. The law in New York is clear that
one who signs a document is, absent fraud or other wrongful act of the other contracting party,
bound by its terms. DaSilva v. Musso, 53 N.Y.2d 543, 444 N.Y.S.2d 50 (1981); Patterson v.
Somerset Investors Corp., 96 A.D.3d 817, 946 N.Y.S.2d 217 (2nd Dept. 2012). Plaintiff has not
offered any evidence that he lacked the power to act in the interest of his mother as her agent;
that he was not the person most personally involved in her care; or that he lacked the ability to
make decisions regarding his mother’s care, treatment and well-being.
11. Plaintiff’s papers are silent as to whether plaintiff himself had any difficulty
understanding the Agreement or its clear and conspicuous terms, or that he was faced with any
credible barriers during the execution of the Admission Agreement. Accordingly, the facts before
the Court are that he in fact signed the Admissions Agreement as his mother’s Designated
Representative, manifested his authority to act in her interests and he did so knowingly and
voluntarily. Accordingly, Plaintiff’s argument that his client did not have authority is devoid of any
foundational support and rests on nothing more than speculation and conjecture by plaintiff’s
counsel. Simply put, there is no admissible evidentiary proof that could ever support any of
plaintiff’s arguments.
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12. Plaintiff’s reliance on the position that the motion should be denied as itis not
supported by anyone with personal knowledge is completely misplaced, as evidenced by the
case law cited to in defendant’s underlying motion and herein. Moreover, the underlying motion
in this case was accompanied by the Affidavit of Noriama Khan who signed the admissions
agreement on behalf of the defendant facility, as such, although the caselaw imposes no such
requirement, the plaintiff’s argument wholly disregards that in this case, the facts at issue
include an affidavit by the signing party. In January 2020, Justice Loren Baily-Schiffman, J.S.C.
of issued a decision in Tepper v. Grace Plaza of Great Neck, Inc., 2020 NY Slip Op 31634
(Supreme Court, Kings County 2020) where the Court stressed that nursing home admission
agreements are not to be held to a higher standard than other contracts. See Tepper
decision annexed collectively with other decisions as Exhibit “1.” What Judge Baily-Schiffman
determined is that an Affidavit from someone with personal knowledge as to the circumstances
under which the contract was executed was not a requirement of the law and was in fact, not a
permissible ground to invalidate a venue selection clause.
13. In Tepper, the Court examined the validity of a venue selection clause in a
nursing home contract that stated that "[a]ny 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." Plaintiff opposed the motion on
several bases, including that: the subject Agreement was unverified and incomplete; the nursing
home failed to support the motion with an Affidavit of a witness with personal knowledge; the
venue provision at issue was not clear, conspicuous, or reasonably communicated and was,
therefore, unenforceable.
14. In rejecting all those grounds Justice Loren Baily-Schiffman held:
“The instant motion asserts several reasons why the subject Admissions
Agreement is invalid which will be dealt with below. It is clear, however, that
there is no reason to hold nursing home admissions agreements to a
higher standard than any other contracts.”
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15. It is crystal clear that nursing home agreements cannot be held to a higher
standard than any other contracts. In examining the issue of whether the lack of an affidavit
from someone with personal knowledge was fatal to the venue selection clause, Judge Baily-
Schiffman held that the defendant provided an Affidavit from an employee with general
knowledge that the contract was a business record of the defendant and attested to the
defendant’s practices, which was enough to validate the agreement. The Court further held that
the fact that the person who executed the Affidavit did not personally witness the signatures on
the Agreement “is irrelevant and purports to add a non-existent requirement to the
enforceability of the Agreement”. The Court also held that there was no requirement that the
document be signed by both parties to it at the same time, nor was the moving defendant
required to establish the competency of the plaintiff to understand and sign the Agreement
especially as plaintiff did not argue that plaintiff was incompetent at the time the Agreement was
signed. The Court held: “Nor does plaintiff provide any law supporting these purported
requirements”.
16. Recently, this very Court held in a case Serino v. Waterview (Index No:
59902/2020 - annexed collectively with other decisions as Exhibit “1”) that nursing home
contracts should not be held to a higher standard. There, the Court reiterated the First
Department’s position in Grant v United Odd Fellow, 129 N.Y.S.3d 785 (1st Dept 2020) that
absent a showing by plaintiff that a clause contained in the admission agreement is
“unreasonable, unjust, in contravention of public policy, invalid due to fraud, or overreaching,
and enforceable,” it is prima facie valid and enforceable. See Grant decision annexed
collectively with other decisions as Exhibit “1.” In both these cases, the Court rejected the
argument that the validity of the venue selection clause had to be supported by someone with
personal knowledge as to the execution of the agreement. In fact, these cases reject the
holdings of all the cases cited to by plaintiff’s counsel, including Brown v. United Odd Fellow,
Starnella v. Ganti, M.D., and Thomas-Pinckney v. United Odd Fellow. The cases cited to by
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plaintiff’s counsel are no longer good law due to the appellate decision on the matter clearly and
unequivocally refuting any notion that there are any extra requirements that the validity of the
venue selection clause had to be supported by someone with personal knowledge as to the
execution of the agreement. Plaintiff’s reliance on these Bronx County cases which are not
binding on this Court, and which are outdated and no longer of good standing, further confirms
that their position is without merit.
17. Furthermore, in Couvertier, supra, the Appellate Division, Second Department,
upheld the validity of an analogous venue selection clause contained in a Bronx County nursing
home’s admission agreement. In that case, the Second Department held that the venue clause,
designating Westchester County as the venue for “[a]ny and all actions arising out of or related
to” the Agreement was enforceable. Couvertier, 117 A.D.3d at 772, 985 N.Y.S.2d at 683. The
Court noted that the broad language of the venue clause, stating that it applied to “[a]ny and all
actions arising out of or related to th[e] Agreement” encompassed the plaintiff’s tort-based
claims. Couvertier, 117 A.D.3d at 773, 985 N.Y.S.2d at 684.
18. In August 2016, the Second Department reiterated its Couvertier holding in
Casale v. Sheepshead Nursing & Rehabilitation Ctr., again ordering a transfer of venue based
on a forum selection clause contained in the defendant nursing home’s admission agreement. In
Casale, the decedent’s wife filed a wrongful death action against Sheepshead Nursing &
Rehabilitation Center in Supreme Court, Kings County, based on the location of the defendant
facility. The nursing home promptly moved to transfer the matter to Nassau County, based on a
forum selection clause contained in the Admission Agreement that was signed by the plaintiff-
spouse. The lower court denied defendant’s motion, and the Second Department reversed,
stating that the plaintiff “failed to show that the 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 was the result of fraud or overreaching.” See Casale v. Sheepshead Nursing &
Rehabilitation Ctr, 131 A.D.3d 436, 13 N.Y.S.3d 904 (2d Dep’t 2015). The Court also noted that
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plaintiff failed to 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. As a result, the forum selection
clause was deemed binding and the venue of the matter was transferred from Kings County to
Nassau County, in accordance with the provisions of the signed agreement.
19. Similarly, in Public Admin. Bronx County v. Montefiore Med. Ctr., 93 A.D.3d 620,
941 N.Y.S.2d 104 (1st Dep’t 2012), the Appellate Division, First Department, deemed
enforceable a venue selection clause contained in a nursing home admission agreement. In
that case, the Appellate Division held that the admission agreement’s venue selection clause,
which stated that “[a]ny and all actions arising out of or related to th[e] Agreement shall be
brought in Westchester County,” Public Admin. Bronx Co., 93 A.D.3d at 621, 941 N.Y.S.2d at
105, was deemed prima facie valid. The First Department held that since the plaintiff’s action
arose out of or related to the defendant’s duties and obligations under the admission
agreement, the venue selection clause applied and venue was properly transferred to
Westchester County. Public Admin. Bronx Co., 93 A.D.3d at 621, 941 N.Y.S.2d at 105.
Furthermore, the Court observed that the plaintiff failed to show that enforcement of the forum
selection clause would violate public policy or that a trialin Westchester County would be so
impracticable and inconvenient that the plaintiff would be deprived of his day in court. Public
Admin. Bronx Co., 93 A.D.3d at 621, 941 N.Y.S.2d at 105.
20. In Medina v. Gold Crest Care Ctr., Inc., 117 A.D.3d 633, 634, 988 N.Y.S.2d 578,
579 (1st Dep’t 2014), the Appellate Division held that where, as here, a lawsuit arises out of a
nursing home residency admission agreement, the venue selection clause applies to all acts
and omissions set forth in the Complaint, even those occurring before the execution of the
agreement. See also Hendrickson v. Birchwood Nsg. Home Partnership, 26 A.D.3d 187, 807
N.Y.S.2d 876 (1st Dep’t 2006); Buhler v. French Woods Festival of the Performing Arts, Inc.,
154 A.D.2d 303, 546 N.Y.S.2d 591 (1st Dep’t 1989).
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21. The instant matter is indistinguishable from the cases cited above as the subject
Admissions Agreement was executed by Ms. Bouknight’s Designated Representative – her son.
It cannot be credibly argued that the decedent’s own son lacked authority to serve as her agent
or that he lacked the ability to hold himself out as the person making decisions on behalf of his
mother. It is equally clear that under no circumstances could the venue selection clause here
violate public policy or that a trial in Westchester County would be so impracticable or
inconvenient such that it would deprive the plaintiff of his day in Court. Accordingly, transfer to
Westchester County is required.
22. The law in New York is clear that one who signs a document is, absent fraud or
other wrongful act of the other contracting party, bound by its terms. DaSilva v. Musso, 53
N.Y.2d 543, 444 N.Y.S.2d 50 (1981); Patterson v. Somerset Investors Corp., 96 A.D.3d 817,
946 N.Y.S.2d 217 (2nd Dept. 2012). In Guerra v. Astoria Generating Co., L.P., 8 A.D.3d 617, 779
N.Y.S.2d 563 (2nd Dept. 2004), the Court held that a party who signs a document is conclusively
bound by its terms absent a valid excuse for having failed to read it.
23. Mere self-serving statements as to why a venue selection clause ought not be
enforced are insufficient. Rather, Courts require a “strong showing” that the venue selection
should be set aside, otherwise the forum selection agreement will be given effect. (See
DiRuocco v. Flamingo Beach Hotel & Casino, Inc., 163 AD2d 270, 272 (2d Dept. 1990) (holding
that plaintiff failed to make the requisite "strong showing" that the venue agreement was a
product of overreaching or was unreasonable, or that its enforcement would be unjust); and
Horton v Concerns of Police Survivors, 62 AD3d 836 (2d Dept 2009) (holding that plaintiff failed
to make the requisite "strong showing" that the forum selection clause in her employment
agreement, which required disputes to be decided in the courts of the State of Missouri, should
be set aside even though plaintiff averred that she was a single mother who resides with her
teenaged daughter in Dutchess County, New York).
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24. It is an undisputed fact in this case that Mr. Lynch signed the contractual
Admission Agreement. Therefore, pursuant to the above-cited precedent, he is conclusively
bound by its terms, including the prima facie valid and enforceable forum selection clause.
25. The Admission Agreement speaks for itself. It is clear that based on the four
corners of the document and terms therein that Mr. Lynch executed the Agreement with the
intent that the Agreement inure to the benefit of Ms. Bouknight. The purpose of the Agreement
was to provide for the care and treatment of Ms. Bouknight – the very care plaintiff now sues
upon. She signed as his mother’s agent and placed his name directly below the attestation that
he read the agreement, understood it and agreed to be bound by its terms.
26. The contractual forum selection clause is valid, binding and enforceable.
Therefore, your affirmant respectfully submits that this Court should issue an Order directing
that the venue of this matter should be transferred to Westchester County.
POINT III
PLAINTIFF’S ARGUMENT THAT THE ADMISSION AGREEMENT
IS NOT BINDING IS IN COMPLETE DEROGATION OF THE LAW
BINDING ON THIS COURT
27. Plaintiff also makes the rather preposterous suggestion that this Agreement,
signed by Plaintiff, is not binding on Plaintiff or the Decedent. Of course, no case law is provided
in support of this tenuous position. As this Court is aware, there is binding precedent from
multiple County Supreme Courts and the Second Department that speaks conclusively on the
binding nature of Admission Agreement on the parties who sign it as well as others. The recent
decision in Plass v. Brookdale (Index No: 507832/2020), in which this same exact plaintiff’s firm
made the same exact arguments and the motion was granted is one of these decisions.
Likewise, in Ellman v. Birchwood, 2010 N.Y. Slip Op. 32946 (N.Y. Sup. Ct. 2010), Justice
Schlesinger rejected a Plaintiff’s arguments why a venue selection clause in the admission
agreement Plaintiff signed ought to be invalidated as follows:
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Wholly without merit is plaintiff’s claim that the Admission Agreement is
inapplicable because the parties to the Agreement differ from the parties to this
litigation. The Agreement was signed by the spouse of Roderic Ellman and the
company operating the nursing home. The plaintiff here is Nancy Ellman, as the
administrator of Mr. Ellman's estate, and the defendant is the entity that operates
the nursing home. Paragraph XI(b) of the Admission Agreement states that:
"This agreement shall be binding on the parties, their heirs, administrators,
distributees, successors and assignees." Thus, by its express terms, the
Agreement is binding on the parties to this litigation, including the
Administrator of the decedent's estate…
28. Clearly, based on Plass and Ellman (see Plass and Ellman decisions annexed
collectively with other decisions as Exhibit “1”), the facts of which are both squarely on point
with the matter before this Court, the Agreement signed by Plaintiff is binding on Plaintiff and
others as it is a broad clause.
29. Also, Plaintiff’s counsel did not even attempt to distinguish or even discuss the
multiple cases cited by JOPAL in our initialAffirmation based on case law from the Second
Department that demonstrated venue selection clauses in nursing home Admission Agreements
are routinely granted and deemed to be binding on the signatory as well as others. See
Couvertier v. Concourse Rehab. & Nsg., Inc., 117 A.D.3d 772, 985 N.Y.S.2d 683, 684 (2d Dep’t
2014); (Puleo v Shore View Ctr. for Rehabilitation & Health Care, 132 AD3d 651, 652 [2d Dept
2015]; and Casale v. Sheepshead Nursing & Rehabilitation Ctr, 131 A.D.3d 436, 13 N.Y.S.3d
904 (2d Dep’t 2015). Again, plaintiff utterly abrogated their burden of proof to establish any
cognizable grounds upon which to invalidate the subject venue selection clause,
POINT IV
PLAINTIFF’S COUNSEL OFFERS NOTHING TO SUPPORT THE
SELF-SERVING ARGUMENT THAT THE VENUE SELECTION
CLAUSE IS UNREASONABLE, VAGUE, AN ATTEMPT AT
FORUM SHOPPING, CONSTITUTES A CONTRACT OF
ADHESION AND IS AGAINST PUBLIC POLICY
30. The law is clear: Forum selection clauses . . . are prima facie valid because they
provide certainty and predictability in the resolution of disputes" (See Sterling Natl. Bank v E.
Shipping Worldwide, Inc., 35 AD3d 222, 222 [1st Dept 2006]). Each of the arguments raised by
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Plaintiff in the point heading above are routinely rejected by Courts when they are not supported
by admissible evidence.
31. As previously noted and argued above, the Court in Tepper v. Grace Plaza of
Great Neck, Inc., 2020 NY Slip Op 31634 (Supreme Court, Kings County 2020) reiterated the
principle that nursing home admission agreements are not to be held to a higher standard
than other contracts. This decision by Judge Baily-Schiffman reiterates the position that there
is no requirement of the law that an affidavit from someone with personal knowledge as to the
circumstances under which the contract was executed. In fact, the Court noted that this was not
a permissible ground to invalidate a venue selection clause. In rejecting the arguments that an
Admission Agreement was unverified
Preview
FILED: WESTCHESTER COUNTY CLERK 02/16/2021 05:18 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/16/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ---------------------------------------------------------------------------X KEVIN LYNCH as Administrator of the Estate of ROSE Index No. 64205/2020 BOUKNIGHT, Bronx Index No.: 26889/2020E Plaintiffs, OPPOSITION TO -against- PLAINTIFF’S MOTION TO RENEW AND REARGUE MONTEFIORE MEDICAL CENTER, GLEN ISLAND CENTER FOR NURSING AND REHABILITATION and JOPAL BRONX LLC d/b/a WORKMEN’S CIRCLE MULTICARE CENTER, Defendants, ---------------------------------------------------------------------------X GONZALO G. SUAREZ, an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following pursuant to the penalties of perjury pursuant to CPLR § 2106: 1. I am an associate of the law firm of KAUFMAN BORGEEST & RYAN LLP, attorneys for Defendant JOPAL BRONX, LLC d/b/a WOMAN’S CIRCLE MULTICARE CENTER (hereinafter “JOPAL”), and as such, am familiar with the facts and circumstances set forth herein. 2. This Affirmation is submitted upon information and belief, the sources of which are the files and records maintained by the law offices of Kaufman Borgeest & Ryan LLP pertaining to this matter. 3. This Affirmation is submitted in Opposition to plaintiff’s motion pursuant to CPLR 2221 for leave to renew or reargue the motion to transfer venue by Defendant JOPAL, and upon re-argument reverse the Court’s decision that this matter be transferred to Westchester County pursuant to CPLR §§ 501, 510(i) and 511(b). 4. At the outset it should be noted that plaintiff has failed to move to vacate the prior Order pursuant to CPLR § 5015. To the extent that plaintiff did not oppose the defendant’s motion to change venue, plaintiff can not now move to reargue without first moving to vacate. 7080904 1 of 19 FILED: WESTCHESTER COUNTY CLERK 02/16/2021 05:18 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/16/2021 Under CPLR § 5015, a party seeking to vacate an Order granted upon prior default is required to demonstrate both a reasonable excuse for the default and potentially meritorious opposition to the motion. See Garcia v. City of New York, 189 A.D. 3d 788 (App. Div. 2d Dep’t. 2020); Hamilton v. New York Hospital Queens, 183 A.D. 3d 621 (App. Div. 2d Dep’t. 2020). Plaintiff contends that the motion papers were not received and plaintiff’s substantive contentions in opposition to the underlying motion are spurious and run contrary to long established rules concerning the enforcement on contracts, including those with venue selection causes. Plaintiff has failed to meet the criteria to vacate the Court’s underlying Order which changed venue from Bronx County to Westchester County. Should the Court choose to decide the motion to reargue despite the omission which defendant contends is fatal, plaintiff has similarly failed to meet the requisite burden on a motion for either renewal or reargument as detailed below. 5. Plaintiff’s motion fails to establish that the Court overlooked or misapprehended any matters of fact or misapplied a controlling principal of law in granting transfer of venue to JOPAL. This Court correctly determined that transfer of venue in the instant matter was appropriate. Moreover, plaintiff is incorrect in asserting that their office was not provided with an opportunity to submit opposition by stating that “plaintiffnever received the motion via regular mail.” See Plaintiff’s Affirmation Paragraph 11. The Affidavit of Service (NYSCEF Document #11) provided by this office is prima facie evidence that the Notice of Motion and annexed exhibits have been exchanged. Finally, despite a blunderbuss of purported reasons why the motion should not have been granted, there is not a shred of evidence to support any of Plaintiff’s contentions. POINT I PLAINTIFF FAILS TO OFFER THIS COURT ANY LEGITIMATE BASIS TO GRANT REARGUMENT 6. Plaintiff wrongly asserts that leave to reargue “shall be freely given” when based upon misapprehension of law or fact. In reality, controlling First and Second Department 2 7080904 2 of 19 FILED: WESTCHESTER COUNTY CLERK 02/16/2021 05:18 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/16/2021 Appellate Division precedent holds that the decision to grant a motion to reargue lies within the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision E.W. Howell Co. v. S.A.F. La Sala Corp., 36 A.D.3d 653, 654, 828 N.Y.S.2d 212 (2d Dept. 2007); Salcedo v. Demon Trucking, Inc., 146 A.D.3d 839, 840, 44 N.Y.S.3d 543, 545 (2d Dept. 2017) (holding that the Supreme Court improvidently exercised its discretion in granting reargument, where the movant failed to demonstrate that the court overlooked or misapprehend a matter of fact or law). 7. “While the determination to grant leave to reargue a motion lies within the sound discretion of the court, a motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented” Ahmed v. Pannone, 116 A.D.3d 802, 805, 984 N.Y.S.2d 104, 107 (2d Dept. 2014) (holding the Court improvidently exercised its discretion in granting reargument as plaintiff failed to demonstrate the Court overlooked or misapprehended any matters of fact or law in determining Defendants’ motions for summary judgment.); see also, Williams v Abiomed, Inc., 173 AD3d 1115 (2d Dept. 2019) (order granting reargument reversed where the movant “merely sought to restate its earlier arguments rather than point out matters of fact or law allegedly overlooked or misapprehended”). 8. Here, Plaintiff’s current application is nothing more than an effort to circumvent their clerical error in not providing opposition to the underlying motion. As noted by the Affidavit of Service (NYSCEF Document #11), the Notice of Motion with Supporting Documents was originally served by physical copy on plaintiff’s office on November 10, 2020. Clearly, the Notice of Motion with Supporting Documents was submitted to all parties, including plaintiff, through a means acceptable by the CPLR, physical mail. Nowhere in the COVID executive orders, nor the administrative orders issued by this Court system, is itrequired that a Notice of Motion be e- mailed to a party. Furthermore, plaintiff’s position that a “courtesy copy” was not filed under the 3 7080904 3 of 19 FILED: WESTCHESTER COUNTY CLERK 02/16/2021 05:18 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/16/2021 original Bronx County Index Number is disingenuous at best as the NYSCEF system does not allow filing of motions from another county into the system. The fact that plaintiff’scounsel’s office failed to open and review a motion which was physically delivered to their office does not raise sufficient evidence to show that the Court overlooked or misapprehended the facts or law. In fact, the Court had the opportunity to review and reject the affidavit of service which was appropriately uploaded to the NYSCEF and did not do so. 9. A bald denial of receipt of process served by mail is insufficient to rebut the inference of proper mailing that arises from a properly executed affidavit of service. See Kihl v. Pfeffer, 94 N.Y.2d 118, 700 N.Y.S.2d 87, 722 N.E.2d 55 (1999); Facey v. Heyward, 244 A.D.2d 452, 664 N.Y.S.2d 119 (2d Dep't 1997); Spangenberg v. Chaloupka, 229 A.D.2d 482, 645 N.Y.S.2d 514 (2d Dep't 1996); European American Bank v. Abramoff, 201 A.D.2d 611, 608 N.Y.S.2d 233 (2d Dep't 1994). 10. Similarly, plaintiff's mere or bare denial of service is insufficient to rebut the prima facie proof or the presumption of proper service created by an affidavit of service. See Pasanella v. Quinn, 126 A.D.3d 504, 5 N.Y.S.3d 413 (1st Dep't 2015); Board of Managers of Foundry at Washington Park Condominium v. Foundry Development Co., Inc., 111 A.D.3d 776, 975 N.Y.S.2d 456 (2d Dep't 2013) (the defendant's conclusory and unsubstantiated denial of service lacked the factual specificity and detail required to rebut the prima facie proof of proper service set forth in the process server's affidavit of service); City of New York v. Miller, 72 A.D.3d 726, 898 N.Y.S.2d 643 (2d Dep't 2010); Slimani v. Citibank, N.A., 47 A.D.3d 489, 849 N.Y.S.2d 541 (1st Dep't 2008); Wunsch v. Cerwinski, 36 A.D.3d 612, 828 N.Y.S.2d 157 (2d Dep't 2007). See also Rabinowitz v. Rabinowitz, 137 A.D.3d 884, 28 N.Y.S.3d 70 (2d Dep't 2016) (an affidavit by the defendant that is conclusory and unsubstantiated is not sufficient to rebut the presumption of proper service); Abdelqader v. Abdelqader, 120 A.D.3d 1275, 993 N.Y.S.2d 71 (2d Dep't 2014), leave to appeal dismissed, 25 N.Y.3d 1031, 10 N.Y.S.3d 513, 32 N.E.3d 950 (2015); Rodriguez v. Rodriguez, 103 A.D.3d 117, 957 N.Y.S.2d 699 (2d Dep't 4 7080904 4 of 19 FILED: WESTCHESTER COUNTY CLERK 02/16/2021 05:18 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/16/2021 2012); Reich v. Redley, 96 A.D.3d 1038, 947 N.Y.S.2d 564 (2d Dep't 2012); U.S. Bank Nat. Ass'n v. Hossain, 94 A.D.3d 979, 943 N.Y.S.2d 140 (2d Dep't 2012). 11. Plaintiff’s counsel fails to provide any tangible evidence that they did not receive the motion. They fail to provide any evidence to rebut the prima facie proof of proper service set forth in the affidavit of service. Notwithstanding the lack of evidence, should the Court grant the motion to reargue, the underlying decision changing venue was proper in all respects and this remains the case despite plaintiff’s unsupported arguments to the contrary, which are addressed below. POINT II PLAINTIFF’S ARGUMENT THAT THERE IS NO PROOF THAT PLAINTIFF’S DECEDENT NOR ANY PARTY WITH APPARENT AUTHORITY SIGNED THE AGREEMENT FLIES IN THE FACE OF COMMON SENSE, THE LAW, AND THE PLAIN, UNAMBIGUOUS TERMS OF THE ADMISSION AGREEMENT 9. Should this Court grant plaintiff’s motion to reargue the motion to change venue, the motion should stillbe granted as plaintiff’s position regarding the Admission Agreement is incorrect and without merit. Plaintiff’s argument that no one with apparent authority signed the Admission Agreement is without merit. Plaintiff himself, the Decedent’s son, and the Administrator of his estate, signed the agreement – this is the very same scenario that was present in multiple other cases against this same exact plaintiff’s firm, which the Court has decided in defendant’s favor. See Plass v. Brookdale (Index No: 507832/2020), and most recently Hubbard v. Four Seasons (514223/2020) (which was granted on February 5, 2021 after oral argument however it has not been transcribed and entered at this point) annexed collectively with other decisions as Exhibit “1”. Neither Plaintiff nor his counsel disputes the fact that plaintiff signed the Agreement or that it is his signature transcribed to the Admissions contract. Furthermore, plaintiff’s counsel admits that the plaintiff’s decedent suffered from dementia and lacked the ability to sign on her own behalf. See Plaintiff’s Affirmation Paragraph 17. Likewise, Plaintiff’s counsel fail to provide any case law that supports the absurd notion that 5 7080904 5 of 19 FILED: WESTCHESTER COUNTY CLERK 02/16/2021 05:18 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/16/2021 one’s son lacks the authority to enter into contracts on behalf of an incapacitated mother in order to facilitate the admission and care of the aforesaid debilitated mother. Plaintiff’s counsel failed to offer any evidence that at the time Plaintiff himself signed the Admission Agreement he was not acting on behalf or in the interests of his mother as her agent. 10. The term “Designated Representative” has a specific meaning within the law. It means that the person acting in that capacity has the ability to assist and/or act on behalf of a particular resident. Despite being given the opportunity when crafting their papers, Plaintiff’s counsel utterly abrogated their duty to support the argument that plaintiff lacked as a matter of law the authority to assist and/or act on behalf of her husband. This is because the argument has no basis in either law or fact and is thus, unsupportable. The law in New York is clear that one who signs a document is, absent fraud or other wrongful act of the other contracting party, bound by its terms. DaSilva v. Musso, 53 N.Y.2d 543, 444 N.Y.S.2d 50 (1981); Patterson v. Somerset Investors Corp., 96 A.D.3d 817, 946 N.Y.S.2d 217 (2nd Dept. 2012). Plaintiff has not offered any evidence that he lacked the power to act in the interest of his mother as her agent; that he was not the person most personally involved in her care; or that he lacked the ability to make decisions regarding his mother’s care, treatment and well-being. 11. Plaintiff’s papers are silent as to whether plaintiff himself had any difficulty understanding the Agreement or its clear and conspicuous terms, or that he was faced with any credible barriers during the execution of the Admission Agreement. Accordingly, the facts before the Court are that he in fact signed the Admissions Agreement as his mother’s Designated Representative, manifested his authority to act in her interests and he did so knowingly and voluntarily. Accordingly, Plaintiff’s argument that his client did not have authority is devoid of any foundational support and rests on nothing more than speculation and conjecture by plaintiff’s counsel. Simply put, there is no admissible evidentiary proof that could ever support any of plaintiff’s arguments. 6 7080904 6 of 19 FILED: WESTCHESTER COUNTY CLERK 02/16/2021 05:18 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/16/2021 12. Plaintiff’s reliance on the position that the motion should be denied as itis not supported by anyone with personal knowledge is completely misplaced, as evidenced by the case law cited to in defendant’s underlying motion and herein. Moreover, the underlying motion in this case was accompanied by the Affidavit of Noriama Khan who signed the admissions agreement on behalf of the defendant facility, as such, although the caselaw imposes no such requirement, the plaintiff’s argument wholly disregards that in this case, the facts at issue include an affidavit by the signing party. In January 2020, Justice Loren Baily-Schiffman, J.S.C. of issued a decision in Tepper v. Grace Plaza of Great Neck, Inc., 2020 NY Slip Op 31634 (Supreme Court, Kings County 2020) where the Court stressed that nursing home admission agreements are not to be held to a higher standard than other contracts. See Tepper decision annexed collectively with other decisions as Exhibit “1.” What Judge Baily-Schiffman determined is that an Affidavit from someone with personal knowledge as to the circumstances under which the contract was executed was not a requirement of the law and was in fact, not a permissible ground to invalidate a venue selection clause. 13. In Tepper, the Court examined the validity of a venue selection clause in a nursing home contract that stated that "[a]ny 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." Plaintiff opposed the motion on several bases, including that: the subject Agreement was unverified and incomplete; the nursing home failed to support the motion with an Affidavit of a witness with personal knowledge; the venue provision at issue was not clear, conspicuous, or reasonably communicated and was, therefore, unenforceable. 14. In rejecting all those grounds Justice Loren Baily-Schiffman held: “The instant motion asserts several reasons why the subject Admissions Agreement is invalid which will be dealt with below. It is clear, however, that there is no reason to hold nursing home admissions agreements to a higher standard than any other contracts.” 7 7080904 7 of 19 FILED: WESTCHESTER COUNTY CLERK 02/16/2021 05:18 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/16/2021 15. It is crystal clear that nursing home agreements cannot be held to a higher standard than any other contracts. In examining the issue of whether the lack of an affidavit from someone with personal knowledge was fatal to the venue selection clause, Judge Baily- Schiffman held that the defendant provided an Affidavit from an employee with general knowledge that the contract was a business record of the defendant and attested to the defendant’s practices, which was enough to validate the agreement. The Court further held that the fact that the person who executed the Affidavit did not personally witness the signatures on the Agreement “is irrelevant and purports to add a non-existent requirement to the enforceability of the Agreement”. The Court also held that there was no requirement that the document be signed by both parties to it at the same time, nor was the moving defendant required to establish the competency of the plaintiff to understand and sign the Agreement especially as plaintiff did not argue that plaintiff was incompetent at the time the Agreement was signed. The Court held: “Nor does plaintiff provide any law supporting these purported requirements”. 16. Recently, this very Court held in a case Serino v. Waterview (Index No: 59902/2020 - annexed collectively with other decisions as Exhibit “1”) that nursing home contracts should not be held to a higher standard. There, the Court reiterated the First Department’s position in Grant v United Odd Fellow, 129 N.Y.S.3d 785 (1st Dept 2020) that absent a showing by plaintiff that a clause contained in the admission agreement is “unreasonable, unjust, in contravention of public policy, invalid due to fraud, or overreaching, and enforceable,” it is prima facie valid and enforceable. See Grant decision annexed collectively with other decisions as Exhibit “1.” In both these cases, the Court rejected the argument that the validity of the venue selection clause had to be supported by someone with personal knowledge as to the execution of the agreement. In fact, these cases reject the holdings of all the cases cited to by plaintiff’s counsel, including Brown v. United Odd Fellow, Starnella v. Ganti, M.D., and Thomas-Pinckney v. United Odd Fellow. The cases cited to by 8 7080904 8 of 19 FILED: WESTCHESTER COUNTY CLERK 02/16/2021 05:18 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/16/2021 plaintiff’s counsel are no longer good law due to the appellate decision on the matter clearly and unequivocally refuting any notion that there are any extra requirements that the validity of the venue selection clause had to be supported by someone with personal knowledge as to the execution of the agreement. Plaintiff’s reliance on these Bronx County cases which are not binding on this Court, and which are outdated and no longer of good standing, further confirms that their position is without merit. 17. Furthermore, in Couvertier, supra, the Appellate Division, Second Department, upheld the validity of an analogous venue selection clause contained in a Bronx County nursing home’s admission agreement. In that case, the Second Department held that the venue clause, designating Westchester County as the venue for “[a]ny and all actions arising out of or related to” the Agreement was enforceable. Couvertier, 117 A.D.3d at 772, 985 N.Y.S.2d at 683. The Court noted that the broad language of the venue clause, stating that it applied to “[a]ny and all actions arising out of or related to th[e] Agreement” encompassed the plaintiff’s tort-based claims. Couvertier, 117 A.D.3d at 773, 985 N.Y.S.2d at 684. 18. In August 2016, the Second Department reiterated its Couvertier holding in Casale v. Sheepshead Nursing & Rehabilitation Ctr., again ordering a transfer of venue based on a forum selection clause contained in the defendant nursing home’s admission agreement. In Casale, the decedent’s wife filed a wrongful death action against Sheepshead Nursing & Rehabilitation Center in Supreme Court, Kings County, based on the location of the defendant facility. The nursing home promptly moved to transfer the matter to Nassau County, based on a forum selection clause contained in the Admission Agreement that was signed by the plaintiff- spouse. The lower court denied defendant’s motion, and the Second Department reversed, stating that the plaintiff “failed to show that the 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 was the result of fraud or overreaching.” See Casale v. Sheepshead Nursing & Rehabilitation Ctr, 131 A.D.3d 436, 13 N.Y.S.3d 904 (2d Dep’t 2015). The Court also noted that 9 7080904 9 of 19 FILED: WESTCHESTER COUNTY CLERK 02/16/2021 05:18 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/16/2021 plaintiff failed to 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. As a result, the forum selection clause was deemed binding and the venue of the matter was transferred from Kings County to Nassau County, in accordance with the provisions of the signed agreement. 19. Similarly, in Public Admin. Bronx County v. Montefiore Med. Ctr., 93 A.D.3d 620, 941 N.Y.S.2d 104 (1st Dep’t 2012), the Appellate Division, First Department, deemed enforceable a venue selection clause contained in a nursing home admission agreement. In that case, the Appellate Division held that the admission agreement’s venue selection clause, which stated that “[a]ny and all actions arising out of or related to th[e] Agreement shall be brought in Westchester County,” Public Admin. Bronx Co., 93 A.D.3d at 621, 941 N.Y.S.2d at 105, was deemed prima facie valid. The First Department held that since the plaintiff’s action arose out of or related to the defendant’s duties and obligations under the admission agreement, the venue selection clause applied and venue was properly transferred to Westchester County. Public Admin. Bronx Co., 93 A.D.3d at 621, 941 N.Y.S.2d at 105. Furthermore, the Court observed that the plaintiff failed to show that enforcement of the forum selection clause would violate public policy or that a trialin Westchester County would be so impracticable and inconvenient that the plaintiff would be deprived of his day in court. Public Admin. Bronx Co., 93 A.D.3d at 621, 941 N.Y.S.2d at 105. 20. In Medina v. Gold Crest Care Ctr., Inc., 117 A.D.3d 633, 634, 988 N.Y.S.2d 578, 579 (1st Dep’t 2014), the Appellate Division held that where, as here, a lawsuit arises out of a nursing home residency admission agreement, the venue selection clause applies to all acts and omissions set forth in the Complaint, even those occurring before the execution of the agreement. See also Hendrickson v. Birchwood Nsg. Home Partnership, 26 A.D.3d 187, 807 N.Y.S.2d 876 (1st Dep’t 2006); Buhler v. French Woods Festival of the Performing Arts, Inc., 154 A.D.2d 303, 546 N.Y.S.2d 591 (1st Dep’t 1989). 10 7080904 10 of 19 FILED: WESTCHESTER COUNTY CLERK 02/16/2021 05:18 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/16/2021 21. The instant matter is indistinguishable from the cases cited above as the subject Admissions Agreement was executed by Ms. Bouknight’s Designated Representative – her son. It cannot be credibly argued that the decedent’s own son lacked authority to serve as her agent or that he lacked the ability to hold himself out as the person making decisions on behalf of his mother. It is equally clear that under no circumstances could the venue selection clause here violate public policy or that a trial in Westchester County would be so impracticable or inconvenient such that it would deprive the plaintiff of his day in Court. Accordingly, transfer to Westchester County is required. 22. The law in New York is clear that one who signs a document is, absent fraud or other wrongful act of the other contracting party, bound by its terms. DaSilva v. Musso, 53 N.Y.2d 543, 444 N.Y.S.2d 50 (1981); Patterson v. Somerset Investors Corp., 96 A.D.3d 817, 946 N.Y.S.2d 217 (2nd Dept. 2012). In Guerra v. Astoria Generating Co., L.P., 8 A.D.3d 617, 779 N.Y.S.2d 563 (2nd Dept. 2004), the Court held that a party who signs a document is conclusively bound by its terms absent a valid excuse for having failed to read it. 23. Mere self-serving statements as to why a venue selection clause ought not be enforced are insufficient. Rather, Courts require a “strong showing” that the venue selection should be set aside, otherwise the forum selection agreement will be given effect. (See DiRuocco v. Flamingo Beach Hotel & Casino, Inc., 163 AD2d 270, 272 (2d Dept. 1990) (holding that plaintiff failed to make the requisite "strong showing" that the venue agreement was a product of overreaching or was unreasonable, or that its enforcement would be unjust); and Horton v Concerns of Police Survivors, 62 AD3d 836 (2d Dept 2009) (holding that plaintiff failed to make the requisite "strong showing" that the forum selection clause in her employment agreement, which required disputes to be decided in the courts of the State of Missouri, should be set aside even though plaintiff averred that she was a single mother who resides with her teenaged daughter in Dutchess County, New York). 11 7080904 11 of 19 FILED: WESTCHESTER COUNTY CLERK 02/16/2021 05:18 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/16/2021 24. It is an undisputed fact in this case that Mr. Lynch signed the contractual Admission Agreement. Therefore, pursuant to the above-cited precedent, he is conclusively bound by its terms, including the prima facie valid and enforceable forum selection clause. 25. The Admission Agreement speaks for itself. It is clear that based on the four corners of the document and terms therein that Mr. Lynch executed the Agreement with the intent that the Agreement inure to the benefit of Ms. Bouknight. The purpose of the Agreement was to provide for the care and treatment of Ms. Bouknight – the very care plaintiff now sues upon. She signed as his mother’s agent and placed his name directly below the attestation that he read the agreement, understood it and agreed to be bound by its terms. 26. The contractual forum selection clause is valid, binding and enforceable. Therefore, your affirmant respectfully submits that this Court should issue an Order directing that the venue of this matter should be transferred to Westchester County. POINT III PLAINTIFF’S ARGUMENT THAT THE ADMISSION AGREEMENT IS NOT BINDING IS IN COMPLETE DEROGATION OF THE LAW BINDING ON THIS COURT 27. Plaintiff also makes the rather preposterous suggestion that this Agreement, signed by Plaintiff, is not binding on Plaintiff or the Decedent. Of course, no case law is provided in support of this tenuous position. As this Court is aware, there is binding precedent from multiple County Supreme Courts and the Second Department that speaks conclusively on the binding nature of Admission Agreement on the parties who sign it as well as others. The recent decision in Plass v. Brookdale (Index No: 507832/2020), in which this same exact plaintiff’s firm made the same exact arguments and the motion was granted is one of these decisions. Likewise, in Ellman v. Birchwood, 2010 N.Y. Slip Op. 32946 (N.Y. Sup. Ct. 2010), Justice Schlesinger rejected a Plaintiff’s arguments why a venue selection clause in the admission agreement Plaintiff signed ought to be invalidated as follows: 12 7080904 12 of 19 FILED: WESTCHESTER COUNTY CLERK 02/16/2021 05:18 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/16/2021 Wholly without merit is plaintiff’s claim that the Admission Agreement is inapplicable because the parties to the Agreement differ from the parties to this litigation. The Agreement was signed by the spouse of Roderic Ellman and the company operating the nursing home. The plaintiff here is Nancy Ellman, as the administrator of Mr. Ellman's estate, and the defendant is the entity that operates the nursing home. Paragraph XI(b) of the Admission Agreement states that: "This agreement shall be binding on the parties, their heirs, administrators, distributees, successors and assignees." Thus, by its express terms, the Agreement is binding on the parties to this litigation, including the Administrator of the decedent's estate… 28. Clearly, based on Plass and Ellman (see Plass and Ellman decisions annexed collectively with other decisions as Exhibit “1”), the facts of which are both squarely on point with the matter before this Court, the Agreement signed by Plaintiff is binding on Plaintiff and others as it is a broad clause. 29. Also, Plaintiff’s counsel did not even attempt to distinguish or even discuss the multiple cases cited by JOPAL in our initialAffirmation based on case law from the Second Department that demonstrated venue selection clauses in nursing home Admission Agreements are routinely granted and deemed to be binding on the signatory as well as others. See Couvertier v. Concourse Rehab. & Nsg., Inc., 117 A.D.3d 772, 985 N.Y.S.2d 683, 684 (2d Dep’t 2014); (Puleo v Shore View Ctr. for Rehabilitation & Health Care, 132 AD3d 651, 652 [2d Dept 2015]; and Casale v. Sheepshead Nursing & Rehabilitation Ctr, 131 A.D.3d 436, 13 N.Y.S.3d 904 (2d Dep’t 2015). Again, plaintiff utterly abrogated their burden of proof to establish any cognizable grounds upon which to invalidate the subject venue selection clause, POINT IV PLAINTIFF’S COUNSEL OFFERS NOTHING TO SUPPORT THE SELF-SERVING ARGUMENT THAT THE VENUE SELECTION CLAUSE IS UNREASONABLE, VAGUE, AN ATTEMPT AT FORUM SHOPPING, CONSTITUTES A CONTRACT OF ADHESION AND IS AGAINST PUBLIC POLICY 30. The law is clear: Forum selection clauses . . . are prima facie valid because they provide certainty and predictability in the resolution of disputes" (See Sterling Natl. Bank v E. Shipping Worldwide, Inc., 35 AD3d 222, 222 [1st Dept 2006]). Each of the arguments raised by 13 7080904 13 of 19 FILED: WESTCHESTER COUNTY CLERK 02/16/2021 05:18 PM INDEX NO. 64205/2020 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/16/2021 Plaintiff in the point heading above are routinely rejected by Courts when they are not supported by admissible evidence. 31. As previously noted and argued above, the Court in Tepper v. Grace Plaza of Great Neck, Inc., 2020 NY Slip Op 31634 (Supreme Court, Kings County 2020) reiterated the principle that nursing home admission agreements are not to be held to a higher standard than other contracts. This decision by Judge Baily-Schiffman reiterates the position that there is no requirement of the law that an affidavit from someone with personal knowledge as to the circumstances under which the contract was executed. In fact, the Court noted that this was not a permissible ground to invalidate a venue selection clause. In rejecting the arguments that an Admission Agreement was unverified