Santillan v Gentle Touch Lasers

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Santillan v Gentle Touch Lasers 2017 NY Slip Op 32898(U) May 19, 2017 Supreme Court, Westchester County Docket Number: 60082/2016 Judge: Charles D. Wood Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: WESTCHESTER COUNTY CLERK 05/19/2017 10:25 AM 1] NYSCEF DOC. NO. 15 INDEX NO. 60082/2016 RECEIVED NYSCEF: 05/19/2017 To commence the statutory time period 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 ------------------------------------------------------------------------)( MARIA SANTILLAN, Plaintiff, DECISION & ORDER -againstIndex No.: 60082/2016 Sequence No.1 GENTLE TOUCH LASERS, GENTLE TOUCH LASERS INC., EFRAIN AGUILAR d/b/a GENTLE TOUCH LASERS, and MARIA SKAFF a/kla MARl SKAFF, Defendant. ------------------------------------------------------------------------)( WOOD, 1. The following documents were read in connection with defendants' motion: Defendants' Notice of Motion, Memorandum of Law, Counsel's Affirmation, Exhibits. Plaintiff s Counsel's Affirmation in Opposition, Exhibits. Defendant's Counsel's Affirmation. Plaintiff alleges that the last of three laser hair removal treatments performed by defendants on July 23, 2013, was performed in a negligent and careless manner causing her Injury. By their motion, defendants seek to have the complaint dismissed, or in the alternative, defendants request that the court enter an order compelling arbitration of plaintiffs claims. 1 of 4 [*FILED: WESTCHESTER COUNTY CLERK 05/19/2017 10:25 AM 2] NYSCEF DOC. NO. 15 INDEX NO. 60082/2016 RECEIVED NYSCEF: 05/19/2017 The crux of the dispute is that prior to receiving any services from defendants, on April 17, 2013, plaintiff signed a release form containing an arbitration agreement ("the "Agreement") which read in pertinent part: "I understand and agree that any dispute concerning medical malpractice will be determine by arbitration, the term medical malpractice interpreted broadly and shall include any and all claims in tort, contract, lack of informed consent, or other legal theories which in any way pertain to claims or unnecessary, unauthorized, improper, negligent, or incompetent rendering of medical treatment. I understand that I am giving up my rights to bring a lawsuit or to resort to any court process except as NY law provides for judicial review of arbitration proceedings. By signing this Agreement, I agree to resolve all disputes by arbitration rather than through the court. I understand and agree that this Arbitration agreement binds me and anyone else who may have a right to assert a claim on my behalf or make a claim as a result of injury to me. I also understand that if 1 sign this Agreement on Behalf of someone else, 1am binding to this Agreement." Arbitration is favored in New York State as a means of resolving disputes, and courts should interfere as little as possible with agreements to arbitrate. It is well-settled that "a party will not be compelled to arbitrate and, in effect, give up the right to resort to the courts, absent evidence which affirmatively disputes" establishes that the parties expressly agreed to arbitrate their (Shah v Monpat Const., Inc., 65 AD3d 541, 543 [2d Dept 2009]). A written agreement that is clear and unambiguous as a matter of law must be enforced according to the plain meaning of its terms (Maroney v Hawkins, 50 AD3d 862, 863 [2d Dept 2008]). "[W]here parties enter into an agreement and, in one of its provisions, promise that any dispute arising out of or in connection with it shall be settled by arbitration, any controversy which arises between them and is within the compass of the provision must go to arbitration. The use of the phrase "any dispute arising out of this agreement" is a broad provision which compels 2 2 of 4 [*FILED: WESTCHESTER COUNTY CLERK 05/19/2017 10:25 AM 3] NYSCEF DOC. NO. 15 INDEX NO. 60082/2016 RECEIVED NYSCEF: 05/19/2017 submission of all issues arising under the agreement to arbitration" (Giahn v Giahn, 290 AD2d 483, 483-84, [2d Dept 2002]). Moreover, any "ambiguity in the wording" of an agreement "must be construed against the drafter" (Quality King Distributors, Inc. v E & M ESR, 36 AD3d 780, 783 [2d Dept 2007]). Applying simple principles of contract interpretation, the court directs the parties to arbitrate, as there is no substantial question whether a valid agreement to arbitrate was made. The Agreement contains an expansive clause which explicitly lists that the term "medical malpractice" shall be interpreted broadly and includes all claims in tort and contract and other legal theories including negligence or incompetent rendering of medical treatment. It includes the claims at issue here. Therefore, the Agreement shall be honored, as it affirmatively establishes that the parties clearly, explicitly, and unequivocally agreed to arbitrate the dispute, and the issue sought to be submitted to arbitration falls within the scope of the agreement (God's Battalion of Prayer Pentecostal Church, Inc. v Miele Associates, LLP, 10 AD3d 671 (2d Dept. 2004), (Frankel v Citicorp Ins. Servs., Inc., 80 AD3d 280, 284 [2d Dept 2010]). For these reasons, the couit compels plaintiff to arbitrate her claim. Now, based upon the foregoing it is hereby ORDERED, that Defendants' motion is granted to the extent that this action is hereby stayed, and plaintiff is directed. forthwith to proceed to arbitration in accordance with the Arbitration Rules of the American Arbitration Association; and it is further 3 3 of 4 [*FILED: WESTCHESTER COUNTY CLERK 05/19/2017 10:25 AM 4] NYSCEF DOC. NO. 15 INDEX NO. 60082/2016 RECEIVED NYSCEF: 05/19/2017 ORDERED, that Defendants shall serve a copy of this order with notice of entry upon plaintiff within twenty (20) days of entry thereof and file proof of service on NYSCEF within five (5) days of service, in accordance with the protocols ofNYSCEF; and it is further All matters not herein mentioned are denied. This constitutes the decision and order of the court. Dated: To: May 19 ,2017 White Plains, New York All Parties by NYSCEF AMERICAN ARBITRATION ASSOCIATION 120 Broadway, 11th Floor New York, New York 10271 4 4 of 4

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