The steadfast advocacy of a Goldberg Segalla defense team resulted recently in the state’s highest court reversing a lower court ruling, delivering for our client a favorable decision in a lawsuit brought by a man against our client, a rehabilitation facility, following his mother’s death. 

Secured by Edward V. Schwendemann, a Garden City-based partner in our Civil Litigation and Trial Practice, and Appellate partner William T. O’Connell in our White Plains office, the decision is being viewed as a significant win for nursing homes and rehabilitation facilities with respect to the enforcement of contractual forum selection clauses.  

The plaintiff in the case filed a lawsuit against our client following the death of his 88-year-old mother who experienced complications during treatment for a fractured hip she suffered in a fall. Also named in the suit as a co-defendant was a New York hospital. 

A New York County trial judge initially granted our client’s motion to change venue to Nassau County based on a ‘contractual-forum selection’ clause in two agreements the decedent signed upon her admission to the rehabilitation facility. While the agreements bore the decedent’s signature and initials in multiple locations via the electronic signature recorder Docusign — and though our client submitted an affidavit from its director of admissions stating that such agreements were customarily reviewed by staff members with residents — the specific staff member who co-signed the agreements no longer was employed by our facility and, therefore, could not submit an affidavit.   

Plaintiff appealed the change of venue order, arguing our client did not meet its burden of proving the decedent signed the agreement. Based on a ruling in a 2021 appellate case in which the panel determined a nursing home failed to provide sufficient evidence authenticating an agreement because it could not provide an affidavit or any other proof of actual signing from a staff member, the Appellate Division, First Department, reversed the trial court’s decision that had granted our client’s motion to change venue to Nassau County. However, based on our arguments, two justices dissented and granted leave for our client to appeal to the New York State Court of Appeals. After briefing and hearing oral argument, the high court unanimously reversed the First Department and granted our client’s motion to change venue to Nassau County based on the forum clause in the parties’ agreements.   

Specifically, the court agreed with Ed and Bill’s argument that our client made a sufficient “initial showing” that the agreements were authentic based on “circumstantial evidence,” including the agreements and signatures themselves, the statement in the agreements that the resident’s admission was “conditioned” upon their review and execution of “the Agreement,” and the uncontested fact the decedent was admitted to our client’s facility on the dates the agreements were allegedly signed.  Plaintiff’s arguments in opposition were found to be insufficient to establish a triable issue of fact as to whether the signatures were forged. 

The victory that Ed and Bill were able to secure for our client is considered especially significant since the decision is expected to be helpful in nursing home cases where the burden of proof is at issue and no direct evidence of signing exists.