Opinion
2015-08-11
David FRIEDMAN, etc., Plaintiff–Respondent, v. The HEBREW HOME FOR the AGED AT RIVERDALE, Defendant–Appellant. Continuing Care Leadership Coalition and AARP, Amici Curiae.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for appellant. Law Offices of Annette G. Hasapidis, Mt. Kisco (Annette G. Hasapidis of counsel), and Abend & Silber, PLLC, New York (Richard H. Abend of counsel), for respondent.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for appellant. Law Offices of Annette G. Hasapidis, Mt. Kisco (Annette G. Hasapidis of counsel), and Abend & Silber, PLLC, New York (Richard H. Abend of counsel), for respondent.
Roxanne Gregorio Tena–Nelson, New York, for Continuing Care Leadership Coalition, amicus curiae.
AARP, New York (Andrew Strickland of counsel), for AARP, amicus curiae.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered August 6, 2014, which denied defendant's motion to stay this action pending arbitration, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff brought this action alleging negligence after his mother was injured at defendant's facility. Defendant seeks to stay the action pending arbitration, pursuant to the arbitration clause in the admission agreement that plaintiff executed in placing his mother in its care. Contrary to the motion court's finding, the arbitration clause is not invalidated by Public Health Law § 2801–d (“Private actions by patients of residential health care facilities”). Because defendant is engaged in interstate commerce, the Federal Arbitration Act preempts Public Health Law § 2801–d ( Ayzenberg v. Bronx House Emanuel Campus, Inc., 93 A.D.3d 607, 941 N.Y.S.2d 106 [1st Dept.2012] ). The McCarran–Ferguson Act (15 U.S.C. § 1012[b] ), which “reverse preempts” certain federal laws affecting insurance, is not implicated here, because Public Health Law § 2801–d “was not enacted ‘for the purpose of regulating the business of insurance,’ within the meaning of [the Act]” ( United States Dept. of the Treasury v. Fabe, 508 U.S. 491, 493, 113 S.Ct. 2202, 124 L.Ed.2d 449 [1993]; see also Matter of Monarch Consulting, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 123 A.D.3d 51, 59–60, 993 N.Y.S.2d 275 [1st Dept.2014] ).
We find that the arbitration clause is not unconscionable, either procedurally or substantively ( see Lawrence v. Graubard Miller, 11 N.Y.3d 588, 873 N.Y.S.2d 517, 901 N.E.2d 1268 [2008] ).