Supreme Court, Bronx County, April 12, 2022

Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, White Plains (Dena Berke of counsel), for Bronx Harbor Health Care Complex, Inc., defendant.

Sinel & Olesen, PLLC, New York City (Austin P. O'Brien of counsel), for plaintiff.

Decorato, Cohen, Sheehan & Federico, LLP, New York City, for Pourrat M. Monahemi, M.D., defendant.

Soon after plaintiff commenced the instant nursing home action, which alleges negligence, medical malpractice, Public Health Law violations, and wrongful death, the defendant, Bronx Harbor Health Care Complex, Inc., moved to change venue (CPLR 501) from Bronx to Westchester County based on a venue selection clause contained in its admission agreement. According to Bronx Harbor, the agreement was signed by plaintiff, Loretta Nesmith, on behalf of decedent, Ferman Nesmith, and it was this agreement that contained the aforementioned venue selection clause. Bronx Harbor argued that Loretta had apparent authority to sign the agreement as the designated representative of her father, the decedent. In its decision dated May 10, 2018, the court denied the motion due to Bronx Harbor's failure to provide proof demonstrating that Loretta had apparent authority to enter into the agreement.

In its earlier motion, Bronx Harbor did not provide proof that Loretta had either actual or apparent authority to bind decedent to the agreement's venue selection clause. Although the venue selection clause may still be enforceable under the doctrine of apparent authority (Indosuez Intl. Fin. v National Reserve Bank, 98 NY2d 238 [2002]), apparent authority will only be found where the words or conduct of the principal (i.e., decedent), and not the agent (i.e., Loretta), give rise to a reasonable belief that the agent possessed the authority to enter into the agreement. (Hallock v State of New York, 64 NY2d 224 [1984].) In other words, an agent cannot by her own conduct imbue herself with the apparent authority to act on behalf of{**75 Misc 3d at 354} the principal. (Id.) Here for example, Bronx Harbor could have provided an affidavit from someone at the facility who has personal knowledge of the facts surrounding the signing of the agreement. This affidavit should also describe the circumstances under which the agreement was executed, including what, if any, words or conduct were conveyed by decedent that would suggest that his daughter, Loretta, had authority to sign same. (Indosuez, 98 NY2d 238; Hallock, 64 NY2d 224.) However, the earlier motion was only supported by an attorney affirmation, which the court found insufficient to raise a triable issue of fact and of no probative value. (Zuckerman v City of New York, 49 NY2d 557 [1980].) Bronx Harbor now seeks to renew (CPLR 2221 [e]) its earlier requested relief to change venue based on newly acquired evidence.

The newly acquired evidence that Bronx Harbor now relies upon is the deposition testimony (taken after the May 2018 decision) of Loretta, and nonparty witnesses, Tracey and Arlene Nesmith. Their testimony appears to establish that Loretta was authorized to enter into the agreement on behalf of decedent. Therefore, the court is satisfied that this is in fact newly acquired evidence that warrants renewal of Bronx Harbor's earlier request to change venue, and to that extent, Bronx Harbor's instant motion to renew (CPLR 2221 [e]) is granted.

Nursing home admission agreements often contain arbitration and venue selection [*2]clauses, and it appears that in addressing these topics, the Appellate Division, First Department, has treated each clause differently. For example, in Gayle v Regeis Care Ctr., LLC, the First Department was called upon to address defendant nursing home's motion to enforce an arbitration clause contained in an admission agreement signed by decedent's daughter. (191 AD3d 598 [2021].) The First Department did not address the broader issue regarding apparent authority (Indosuez, 98 NY2d 238; Hallock, 64 NY2d 224), and instead addressed how the authority of decedent's daughter under Public Health Law § 2994-d was limited to making decisions regarding health care treatment. It went on to find that the arbitration clause had no bearing on her father's health care, and held that as this was outside her purview of authority, then she had no authority to bind her father to same.

A few months later, in a case entitled Caio v Throgs Neck Rehabilitation & Nursing Ctr., the First Department was called {**75 Misc 3d at 355}upon to address defendant nursing home's motion to enforce a venue selection clause contained in an admission agreement signed by decedent's son. (197 AD3d 1030 [2021].) In Caio, defendant nursing home did not provide an affidavit from someone with personal knowledge to describe why the nursing home relied upon the apparent authority of decedent's son to sign the admission agreement. (Indosuez, 98 NY2d 238; Hallock, 64 NY2d 224.) And as in Gayle, there can be no dispute that a venue selection clause has no bearing on health care (Public Health Law § 2994-d). In Caio, the First Department did not refer to its earlier decision in Gayle, nor did it address Public Health Law § 2994-d. Instead, it shifted the burden to plaintiff (non-movant) as the party challenging the validity of the admission agreement's venue selection clause, to show why this provision should not be enforced. The First Department then determined that the venue selection clause did not violate public policy and was not the result of fraud or overreaching, and as plaintiff would not be deprived of her day in court, it enforced the venue selection clause.

Although there appears to be some inconsistency in the First Department's review of arbitration and venue selection clauses in nursing home admission agreements, Bronx Harbor has come forward with newly acquired evidence to suggest that it appropriately relied upon Loretta's apparent authority to sign the instant agreement. There is still no affidavit from a Bronx Harbor employee describing decedent's words or conduct that would have suggested that Loretta had authority to bind the estate to the venue selection clause. But given the First Department's decision in Caio, and despite the fact that plaintiff is not the movant, the burden is on plaintiff as the party challenging the validity of the agreement's venue selection clause, to show why the provision should not be enforced. And here, there is no affidavit from Loretta in opposition to Bronx Harbor's motion. In addition, the court finds the venue selection clause clear and unambiguous (R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29 [2002]), and as for the agreement, it is not unreasonable, unjust, in contravention of public policy, or invalid due to fraud or overreaching. (Friedman v Hebrew Home for the Aged at Riverdale, 131 AD3d 421 [1st Dept 2015]; KMK Safety Consulting, LLC v Jeffrey M. Brown Assoc., Inc., 72 AD3d 650 [2d Dept 2010].) Therefore, Bronx Harbor's instant motion is granted, this court's earlier decision dated May 10, 2018, is vacated, and Bronx Harbor's earlier{**75 Misc 3d at 356} motion to change venue is granted. Upon payment of the appropriate fees, the Bronx County Clerk shall transfer this action to the Westchester County Clerk.