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Decided on January 7, 2010
Supreme Court, Richmond County

Lucille Concille, as the Administratrix of the Estate of MARION MUNAO, Plaintiff(s),
against

Otto Weingarten, SILVER LAKE SPECIALIZED CARE CENTER, SILVER LAKE NURSING HOME, INC. d/b/a SILVER LAKE SPECIALIZED CARE CENTER, SILVER LAKE NURSING HOME and JOHN/JANE DOES NO. 1-10 as OWNERS, OPERATORS, CONTROLLING PERSONS AND MEMBERS OF THE GOVERNING BODY OF SILVER LAKE SPECIALIZED CARE CENTER, Defendant(s),








104798/2007
Judith N. McMahon, J.

This action was commenced on or about April 18, 2008, by the plaintiff against defendants alleging, inter alia, negligence, wrongful death and various violations of New York Public Health Law. Plaintiff specifically alleges that the plaintiff decedent Marion Munao, developed pressure ulcers while a resident of defendant Silver Lake Nursing Home [hereinafter "Silver Lake"] and thereafter passed away in March 2007. During discovery, the parties became aware that nurse Stephanie Chen was involved intimately in the care of the plaintiff decedent. Nurse Chen was employed by third-party defendant Evercare. Evercare is a private company providing treatment to certain patients at Silver Lake. As a result, the defendant Silver Lake filed the third party complaint against third-party defendants Evercare, Evercare Hospice, Inc. and Stephanie Chen on or about August 28, 2009. Third-party defendant Evercare's motion seeks to [*2]compel the third-party dispute to arbitration pursuant to the "Facility Participation Agreement" which was executed
between United HealthCare Insurance Company [FN1] and Silverlake Nursing Home on March 1, 2009. Silver Lake opposes on the ground that the issues in the third party complaint are not within the scope of the arbitration clause of the Facility Participation Agreement.
The third-party complaint seeks contribution/indemnification from Evercare in the event Silver Lake is found liable in the main action. The arbitration provision in the Facility Participation agreement provides:
The parties will work together in good faith to resolve any and all disputes between them . . . including but not limited to all questions of arbitrability, the existence, validity, scope of termination of the Agreement or any term thereof.
New York State "favors and encourages arbitration as a means of expediting the resolution of disputes and conserving judicial resources" and "precludes the parties . . . from simultaneously pursuing their claims before the courts and thus playing one forum off against the other" (Szabados
v. Pepsi-Cola Bottling Co. of New York, Inc. , 174 AD2d at 342). Where arbitration agreements are broad in scope, they can easily encompass the claims disputed between the parties (Hayes v. County Bank, 26 AD3d 465, 467 [2d Dept., 2006]).
Here, the crux of the dispute between the parties is whether a third-party claim for contribution/indemnification in an underlying personal injury action falls within the arbitration provision of the Facility Participation Agreement. The Court finds that the Facility Participation Agreement, while containing a broad arbitration provision, does not encompass contribution/indemnification claims. The Facility Participation Agreement deals predominately with payment issues related to the facilities. As demonstrated by Article I. "Definitions", where the terms defined are: Benefit Plan, Covered Service, Customary Charge, Customer, Payment Policies, Payer, Protocols and United Affiliates. Further support is provided by Article VI. "Submission, Processing and Payment of Claims". This Court finds nothing in the agreement with respect to liability claims or contribution/indemnification which suggests this was not contemplated at the time the Facility Participation Agreement was executed. As such, third-party defendant Evercare's motion to compel arbitration is hereby denied.
With respect to third-party defendant Evercare's alternative plea to sever the third-party action, that request is also denied. This Court held several conferences whereby it directed the plaintiff and defendants/third-party plaintiffs to provide the third-party defendant with all the discovery by November 2009.
Accordingly, it is
ORDERED that third party defendant Evercare, Evercare Hospice, Inc. And Stephanie Chen's motion to compel arbitration is denied, in its entirety, and it is further
ORDERED that the parties proceed directly to trial, and it is further
ORDERED that any and all additional requests for relief are hereby denied.
THIS IS THE DECISION AND ORDER OF THE COURT.
Dated: January 7, 2010E N T E R,
Hon. Judith N. McMahon
Justice of the Supreme Court


Footnotes
Footnote 1:United HealthCare and "other entities that are United's Affiliates" entered into the agreement and it is undisputed that Evercare is a "united affiliate".

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New York Law