Ayzenberg v Bronx House Emauel Campus, Inc., etc., 93 A.D.3d 607; 941 N.Y.S.2d 106; 2012 N.Y. App. Div. LEXIS 2316; 2012 NY Slip Op 2396Posted: October 29, 2012
Ayzenberg v Bronx House Emauel Campus, Inc., etc., 93 A.D.3d 607; 941 N.Y.S.2d 106; 2012 N.Y. App. Div. LEXIS 2316; 2012 NY Slip Op 2396
Roza Ayzenberg, Plaintiff-Respondent-Appellant, v Bronx House Emauel Campus, Inc., etc., Defendant-Appellant-Respondent.
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
93 A.D.3d 607; 941 N.Y.S.2d 106; 2012 N.Y. App. Div. LEXIS 2316; 2012 NY Slip Op 2396
March 29, 2012, Decided
March 29, 2012, Entered
THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
COUNSEL: [***1] Mound Cotton Wollan & Greengrass, Garden City (Rodney E. Gould of counsel), for appellant-respondent.
Hill & Moin, LLP, New York (Cheryl Eisberg Moin of counsel), for respondent-appellant.
JUDGES: Mazarelli J.P., Andrias, Moskowitz, Acosta, Abdus-Salaam, JJ.
[*607] [**107] 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 [**108] 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, 709 N.Y.S.2d 208 ). [***2] 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, 182 L. Ed. 2d 42 ; see also Remco Maintenance, LLC v CC Mgt. & Consulting, Inc., 85 AD3d 477, 925 N.Y.S.2d 30 ).
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 U.S. 52, 56, 123 S. Ct. 2037, 156 L. Ed. 2d 46 [*608] ). Thus, we find that to the extent GBL § 399-c may prohibit the subject arbitration clause, it is preempted [***3] 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
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