Branch v. ATR New York LH, Inc.

EASTERN DISTRICT OF NEW YORK

----------------------------------------------------------------------X For Online Publication Only

AMY BRANCH, as Executor of the Estate

of DENNIS OVERZAT,

ORDER

Plaintiff, 2:23-cv-09456 (JMA) (LGD)

-against- FILED

CLERK

ATR NEW YORK LH, INC. and ATRIA 5/14/2025 2:22 pm

SENIOR LIVING, INC.,

U.S. DISTRICT COURT

Defendants. EASTERN DISTRICT OF NEW YORK

----------------------------------------------------------------------X LONG ISLAND OFFICE

AZRACK, United States District Judge:

Plaintiff Amy Branch (“Plaintiff”), as the executor of the estate of decedent Dennis Overzat

(“Decedent”), brings claims against Defendants ATR New York LH, Inc. and Atria Senior Living,

Inc. (“Defendants”) alleging negligence and breach of contract in relation to Decedent’s stay at

Defendants’ assisted living facilities. (See Compl., ECF No. 1-2 ¶¶ 34, 45.) Presently before the

Court is Defendants’ motion to compel arbitration and stay the instant action. For the following

reasons, Defendants’ motion is GRANTED.

I. BACKGROUND

For purposes of the instant motion, the Court sets forth only the factual background

necessary to determine whether arbitration should be compelled.

On June 6, 2016, Decedent executed an agreement granting his son, Ian Overzat, plenary

Power of Attorney (“POA”). (See ECF No. 20-5 at 2-20.) That same day, Decedent also

designated Ian Overzat as his Health Care Proxy (“HCP”). (See id. at 21-25.) On June 28, 2018,

Ian Overzat, acting in his role as Decedent’s HCP and POA, executed a residency agreement to

enter Decedent into Defendants’ assisted living facility at 53 Ocean Avenue, Bay Shore, New York

11706. (ECF 20-4.) The agreement includes an arbitration provision, which provides:

to care or services provided to you at Atria Bay Shore by Atria Senior Living Group

Inc. (“Atria”) (e.g. claims for refund, breach of contract, intentional tort, wrongful

death, elder abuse, unfair business practices) or relating to the validity or

enforceability of the Residency Agreement for Atria Bay Shore, will be determined

by submission to arbitration as provided by: (1) the Federal Arbitration Act

(“FAA”) 9 U.S.C., Sections 1-16, or (2) NY law, in the event a court determines

that the FAA does not apply. This includes claims or actions regarding whether the

care or services you received, or lack of care or services, was unnecessary or

unauthorized or was improperly, negligently, or incompetently rendered. Both

parties to this contract, by entering into it, are giving up their constitutional

right to have any such dispute decided in a court of law before a jury, and

instead are accepting the use of arbitration.

(ECF No. 20-4 at 35.) (bold in original.) On July 23, 2018, Decedent moved into Atria Bay Shore.

(ECF No. 15 at 1-2.) On July 27, 2018, and June 6, 2020, Decedent suffered falls at the facility.

(ECF No. 20-6 at 5; ECF No. 21-9 at 4.) Five days after the second fall, Dennis Overzat died.

(ECF No. 21-9 at 4.)

On June 1, 2023, Plaintiff filed a summons and complaint in the Supreme Court of the State

of New York. (ECF No. 21-3.) On December 22, 2023, Defendants removed the case to this Court

based on diversity jurisdiction. (ECF No. 1.) On March 5, 2024, the parties appeared for an initial

conference proceeding before Magistrate Judge Lee G. Dunst. (ECF No. 11.) Subsequently, the

parties were referred to the EDNY mediation program. (See March 11, 2024 Order.) On June 24,

2024, the parties appeared for mediation before Justice George J. Silver but were unable to resolve

their claims. (ECF No. 21-9 at 6; ECF No. 20-6 at 7.) On July 8, 2024, Defendants filed a pre-

motion letter to move to compel arbitration. (ECF No. 13.) On August 9, 2024, the Court waived

its pre-motion conference requirement and allowed the parties to brief the instant motion. (See

August 9, 2024 Order.)

Accordingly, on October 25, 2024, Defendants filed their fully briefed motion to compel

arbitration and stay this action pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 3-4 9 (“FAA”).

(See ECF No. 20.)

In reviewing motions to compel arbitration brought under the FAA, the court applies a

standard similar to that applicable for a motion for summary judgment. Bensadoun v. Jobe-Riat,

316 F.3d 171, 175 (2d Cir. 2003); see also Brown v. St. Paul Travelers Companies, Inc., 331 F.

App’x 68, 69-70 (2d Cir. 2009) (“The Court must evaluate a motion to compel arbitration, pursuant

to the FAA, under a standard similar to the standard for a summary judgment motion.”)

In deciding whether to compel arbitration, courts generally conduct a two-part test: “(1)

[h]ave the parties entered into a contractually valid arbitration agreement? and (2) [i]f so, does the

parties’ dispute fall within the scope of that agreement?” Ostreicher v. TransUnion, LLC, 2020

WL 3414633 (S.D.N.Y. 2020) (citing In re Am. Express Fin. Advisors Secs. Litig., F.3d 113, 128

(2d Cir. 2011)). If these two conditions are met, the FAA “mandates that district courts shall direct

the parties to proceed to arbitration. . . .” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218

(1985).

“When performing this analysis, the court is not limited to the pleadings, and need not

assume the truth of the facts alleged in the complaint.” Harris v. TD Ameritrade Inc., 338 F. Supp.

3d 170, 182 (S.D.N.Y. 2018) (relying on Oppenheimer & Co. v. Neidhardt, 56 F.3d 352, 358 (2d

Cir. 1995)). “Once the moving party has established the existence of an arbitration agreement, the

burden shifts to the party seeking to avoid arbitration to show the agreement to be inapplicable or

invalid.” Id. (citing Harrington v. Atl. Sounding Co., Inc., 602 F.3d 113, 124 (2d Cir. 2010))

(internal citations omitted). At this stage of the analysis, “any doubts concerning the scope of

arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone Mem’l Hosp. v.

Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).

A. Validity of the Arbitration Agreement

With respect to the first prong, the Court finds that there is a valid agreement to arbitrate

between the parties. Plaintiff disputes the validity of the agreement and asserts that “an evidentiary

hearing should be held to determine the issue.” (Id.) (citing Wolf v. Hollis Operating Co., LLC,

211 A.D.3d 769, 770 (2d Dep’t 2022)). The Court disagrees with Plaintiff and finds that there is

no genuine dispute as to the validity of the arbitration agreement.

To determine the validity of an agreement to arbitrate, courts apply principles of contract

law. See Gold v. Deutsche Aktiengesellschaft, 365 F.3d 144, 149 (2d Cir. 2004). Signatories to a

contract are presumed to understand its terms and assent to them unless the party resisting

enforcement can demonstrate that the agreement is inapplicable or invalid. See Herskovic v.

Verizon Wireless, 2020 WL 1089601 (E.D.N. Y 2020) (requiring a customer resisting arbitration

pursuant to a customer agreement to demonstrate that the agreement is deficient); cf. Accardo v.

Equifax, Inc., 2019 WL 5695947 (E.D.N.Y. 2019) (denying a motion to compel arbitration where

there existed a genuine dispute of material fact as to the existence of a valid arbitration agreement.)

Here, Defendants have satisfied their burden to prove the existence of an agreement to

arbitrate. It is undisputed that Decedent signed a plenary POA to his son, Ian Overzat. (ECF No.

20-5 at 2-20.) Ian Overzat then signed the “Agreement to Arbitrate Disputes (NY)” rider to the

residency agreement, affixing his signature to the bottom of the page with the designation “POA.”

(Id. at 35.) By signing the residency agreement, Ian Overzat expressly acknowledged receiving

the pre-dispute arbitration clause. See Morgikian v. Fid. Invs., No 20CV05724, 2022 WL 836950,

at *3 (E.D.N.Y. Mar. 21, 2022). The Court also finds no evidence in the record calling into question

the authenticity of these agreements. Accordingly, the Court finds that Defendants have met their

burden to demonstrate the existence of an agreement to arbitrate between the parties.

arbitration agreement, the burden now moves to Plaintiff to contest its validity. See Harris, 338 F.

Supp. 3d 170 at 182 (citation omitted). To that end, Plaintiff summarily argues that “there is no

evidence regarding the ability of Plaintiff’s decedent to understand what the arbitrations agreement

says or whether he in fact would have agreed to waive his rights to a trial by jury.” (ECF No. 21-

9 at 7.) This argument, however, and the precedent it relies upon, are inapposite. Plaintiff cites no

authority as to why Decedent would have to understand the arbitration agreement or waive his

rights to trial by jury, when Decedent had already signed a plenary POA to his son, who manifested

his assent to both. (See ECF No. 20-5 at 4) (granting authority to Ian Overzat over “claims and

litigation” and “all other matters.”); c.f. Bergman v. Rosalind & Joseph Gurwin Jewish Geriatric

Ctr. of Long Island, Inc., 227 A.D.3d 942, 944, 210 N.Y.S.3d 295, 296 (2024) (“The defendants

failed to submit the power of attorney through which the plaintiff allegedly derived authority to

bind the resident to arbitration.”) (citing Sunshine Care Corp. v. Warrick, 100 A.D.3d 981, 981–

982, 957 N.Y.S.2d 122)). Additionally, the authority Plaintiff does cite is misplaced. In Wolf, the

State Court found Defendants failed to meet their burden on a motion to compel arbitration where,

crucially, they failed to “submit sufficient evidence of the plaintiff's authority to bind the decedent

to arbitration at the time he signed the admission agreement on the decedent's behalf. Most

significantly, the defendants failed to submit the instrument through which the plaintiff allegedly

derived his authority to bind the decedent to arbitration.” Wolf, 211 A.D.3d 769 at 770–71

(emphasis added).

Here, Defendants produced the instruments through which the Decedent was bound to Ian

Overzat before the latter signed the arbitration agreement. Nowhere does Plaintiff contest the

authenticity of these documents. Thus, the Court rejects Plaintiff’s argument and finds that there

is a valid agreement to arbitrate.

Having determined that a binding agreement to arbitrate exists, the Court also finds that

the arbitration agreement governs Plaintiff’s claims. The agreement mandates arbitration for “any

and all legal claims or civil actions arising out of or relating to care or services provided to you at

Atria Bay Shore by Atria Senior Living Group Inc. (“Atria”) (e.g. claims for refund, breach of

contract, intentional tort, wrongful death, elder abuse, unfair business practices).” (ECF No. 20-4

at 35.) As the Second Circuit has explained in interpreting similarly broad language, “[t]he clause

in this case, submitting to arbitration ‘any claim or controversy arising out of or relating to the

agreement,’ is the paradigm of a broad clause.” Collins & Aikman Prods. Co. v. Bldg. Sys., Inc.,

58 F.3d 16, 20 (2d Cir. 1995). In situations involving such broad clauses, “there is a presumption

of arbitrability ... [and t]he Court will compel arbitration of even a dispute that does not implicate

the contract's express provisions as long as ‘the claim alleged implicates issues of contract

construction or the parties’ rights and obligations under it.’” Catz v. Precision Glob. Consulting,

No. 19 CIV. 7499, 2021 WL 1600097, at *8 (S.D.N.Y. Apr. 23, 2021) (quoting Collins & Aikman

Prods. Co., 58 F.3d at 23).

Here, neither party disputes that Plaintiff's claims are covered by the Agreement's express

provisions in that he brings claims regarding the care and services provided to Decedent at Atria

Bay Shore. (See generally, Compl.) Nor could they. Accordingly, the broad scope of the

Agreement supports an order to compel arbitration.

C. Waiver of Arbitration

Plaintiff further argues that “even if there was a valid agreement defendants waived their

right to enforce the arbitration agreement after litigating the matter for over 13 months and

inducing Plaintiff to defer depositions with what turned out to be an insincere effort to mediate and

not waived their right to enforce the arbitration agreement.

As a threshold matter, ‘“there is a strong presumption in favor of arbitration, [and] waiver

of the right to arbitration is not to be lightly inferred.”’ Thyssen, Inc. v. Calypso Shipping Corp.,

S.A., 310 F.3d 102, 104–05 (2d Cir. 2002) (quoting Coca–Cola Bottling Co. v. Soft Drink and

Brewery Workers Union Local 812, 242 F.3d 52, 57 (2d Cir. 2001)). In fact, “the rule preferring

arbitration, when agreed upon, ha[s] led to its corollary that any doubts concerning whether there

has been a waiver are resolved in favor of arbitration.” Louis Dreyfus Negoce S.A. v. Blystad

Shipping & Trading, Inc., 252 F.3d 218, 228 (2d Cir. 2001); Leadertex, Inc. v. Morganton Dyeing

& Finishing Corp., 67 F.3d 20, 25 (2d Cir. 1995). Nevertheless, a party may waive its right to

arbitration “when it engages in protracted litigation.” Tech. in P'ship, Inc. v. Rudin, 538 F. App'x

38, 39 (2d Cir. 2013) (quoting In re Crysen/Montenay Energy Co., 226 F.3d 160, 162 (2d Cir.

2000)); see also De Jesus v. Gregorys Coffee Mgmt., LLC, No. 20CV6305, 2022 WL 3097883, at

*7 (E.D.N.Y. Aug. 4, 2022) (same).

“To determine whether a party has waived its right to arbitration, a court considers ‘(1) the

time elapsed from when litigation was commenced until the request for arbitration’ and ‘(2) the

amount of litigation to date, including motion practice and discovery.’” De Jesus, 2022 WL

3097883, at *7 (quoting LifeTree Trading Pte., Ltd. v. Washakie Renewable Energy, LLC, 764 F.

App'x 105, 107 (2d Cir. 2019)); La. Stadium & Expo. Dist. v. Merrill Lynch, Pierce, Fenner &

Smith Inc., 626 F.3d 156, 159 (2d Cir. 2010) (same)); Johnson v. Ensite USA, Inc., No. 21-CV-

4437, 2022 WL 463381, at *4 (S.D.N.Y. Feb. 15, 2022) (similar). “There is no rigid formula or

bright-line rule for identifying when a party has waived its right to arbitration; rather, the above

factors must be applied to the specific context of each particular case.” La. Stadium & Expo. Dist.,

626 F.3d at 159. Instead, the Court considers whether Defendants “knowingly relinquish[ed] the

amount of litigation to date. Morgan v. Sundance, Inc., 596 U.S. 411, 415 (2022).

Here, the Court finds that Defendants have not waived their right to enforce the arbitration

agreement. Although Plaintiff is correct that Defendants “litigat[ed] the matter for over 13

months” before moving to compel arbitration, there was minimal discovery exchanged, and no

depositions have taken place. (ECF No. 21-9 at 6.) Put another way, although this case has been

open for over 13 months, scant litigation has occurred. After the case was initially removed to

federal court in December of 2022, the parties appeared for one initial conference and one

mediation session, which Plaintiff states “lasted less than 15 minutes.” (Id.) Despite the delay,

the lack of actual litigation militates strongly against a finding that Defendants have waived

enforcement of the arbitration provision. See Thyssen, 310 F.3d 102 at 105 (“This Circuit has

refused to find waiver in a number of cases where delay in trial proceedings was not accompanied

by substantial motion practice or discovery.”) (collecting cases); accord McClain v. Rochdale Vill.,

No. 18CV03781, 2021 WL 3023087, at *5 (E.D.N.Y. July 16, 2021) (compelling arbitration where

“the parties nearly completed fact discovery with only one deposition remaining.”) Thus, the Court

finds that here, where fact discovery has just commenced and no depositions have been taken, that

Defendants have not waived enforcement of the arbitration agreement.

1. Medical Malpractice

Finally, Plaintiff asserts that “under New York State law, despite an ‘agreement’ to arbitrate

disputes, medical malpractice defendants who participate in litigation before making any demand

for arbitration waive their right to arbitrate.” (ECF No. 21-9 at 5.) (citing Figueroa v. Flatbush

Women’s Services, Inc, 344 A.D. 2d 453 (2d Dep’t 1997); then citing Hyde v. Jewish Home

Lifecare, 149 A.D.3d 674, 674, 53 N.Y.S.3d 57, 59 (2017)). First, the Court has examined these

cases and the applicable law and does not find that they stand for Plaintiff’s purported proposition

perhaps more important, Plaintiff does not assert a cause of action for medical malpractice. Thus,

the Court finds that Defendants have not waived enforcement of the arbitration provision.

D. Stay of the Instant Proceedings

Having determined that Plaintiff’s claims are wholly governed by the arbitration clause,

the Court must stay the instant action pending arbitration. See Katz v. Cellco P’ship, 794 F.3d 341

(2d Cir. 2015) (finding that the Federal Arbitration Act requires courts to stay actions where claims

are wholly arbitrable and either party has requested a stay).

IV. CONCLUSION

Defendants’ motion to compel arbitration is GRANTED and the instant action is STAYED

pending arbitration between the parties.

SO ORDERED.

Dated: May 14, 2025

Central Islip, New York

/s/ (JMA)

JOAN M. AZRACK

UNITED STATES DISTRICT JUDGE