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Roza Ayzenberg, Plaintiff-Respondent-Appellant v. Bronx House Emanuel Campus

New York Supreme and/or Appellate Courts Appellate Division, First Department


March 29, 2012

ROZA AYZENBERG, PLAINTIFF-RESPONDENT-APPELLANT,
v.
BRONX HOUSE EMANUEL CAMPUS, INC., ETC., DEFENDANT-APPELLANT-RESPONDENT.

Ayzenberg v Bronx House Emanuel Campus, Inc.

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 March 29, 2012

Mazarelli J.P., Andrias, Moskowitz, Acosta, Abdus-Salaam, JJ.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered October 13, 2011, which denied defendant's motion to stay the proceeding and compel arbitration pending further discovery, unanimously reversed, on the law, without costs, the motion to compel arbitration granted, and the action stayed.

In this action for personal injuries allegedly suffered by plaintiff while she and her husband were guests at defendant's camp facility, defendant moved to stay the proceeding and compel arbitration based on an arbitration clause contained in the application for defendant's camp program that was filled out by plaintiff's husband and bears his signature. We find that the arbitration clause is binding on plaintiff. Irrespective of whether there was a language barrier that precluded plaintiff and her husband from understanding the content of the application, they are bound by its enforceable terms (see Shklovsky v Kahn, 273 AD2d 371, 372 [2000]). Although plaintiff's husband signed the application, which provided for the couples' joint participation in defendant's program, plaintiff is bound by it since her husband had, at the very least, apparent authority to sign for her (see Restatement, Agency 2d, § 8 and § 27).

Plaintiff's assertion that the arbitration clause does not apply to this personal injury action because it provides for the submission of claims "pursuant to the Commercial Rules of the American Arbitration Association," is unavailing. The clause provides for arbitration of "any dispute resulting from [their] stay at" defendant's facility (italics supplied), and thus, this matter is not excluded (see Marmet Health Care Center, Inc., et al. v Brown, __ US __, 132 S Ct 1201 [2012]; see also Remco Maintenance, LLC v CC Mgt. & Consulting, Inc., 85 AD3d 477 [2011]).

Contrary to plaintiff's argument, we find that the sale/purchase of the services defendant provided constitutes a transaction "involving commerce" within the meaning of the Federal Arbitration Act (see Citizens Bank v Alafabco, 539 US 52, 56 [2003]). Thus, we find that to the extent GBL § 399-c may prohibit the subject arbitration clause, it is preempted by federal law.

We have reviewed plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 29, 2012

CLERK

20120329

© 1992-2012 VersusLaw Inc.



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