Friedman v Hebrew Home for the Aged at Riverdale

Friedman v Hebrew Home for the Aged at Riverdale 2015 NY Slip Op 06478 Decided on August 11, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 11, 2015
Tom, J.P., Friedman, Sweeny, Saxe, Clark, JJ.
15249N

[*1] David Friedman, etc., 24793/13E 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.

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 AD3d 607 [1st Dept 2012]). The McCarran-Ferguson Act (15 USC § 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 US 491, 493 [1993]; see also Matter of Monarch Consulting, Inc. v National Union Fire Ins. Co. of Pittsburgh, PA, 123 AD3d 51, 59-60 [1st Dept 2014]).

We find that the arbitration clause is not unconscionable, either procedurally or substantively (see Lawrence v Graubard Miller, 11 NY3d 588 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: AUGUST 11, 2015

CLERK