In Mercado v. Schwartz, 2022 NY Slip Op 4962 (N.Y. App. Div. 2022), the plaintiff patient signed a number of documents in the waiting room of a doctor’s office. The doctor later performed a hysterectomy on the patient. Following the hysterectomy, the plaintiff and her husband sued the doctor alleging that the doctor negligently pierced the patient's duodenum during the procedure and then failed to recognize that the duodenum had been pierced. The patient and her husband moved for a declaration that one of the signed documents (“Agreement”) was void and unenforceable. The Supreme Court granted the plaintiffs' motion and determined that several provisions in the Agreement were void and unenforceable. The Court also noted that the Agreement did not contain a severability provision.

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Appeal decision

On appeal, the defendants challenged the trial court’s order only with respect to one of the provisions that the trial court had found unenforceable. The New York Appellate Division, Second Department, affirmed the order of the trial court.

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Lack of severability clause causes the entire agreement to be unenforceable

The New York Appellate Division, Second Department, agreed with the trial court that the provision in question violated public policy. However, the Appellate Divison also noted that the provision at issue on appeal was unenforceable because the other provisions that the Supreme Court found to be unenforceable were not severable from the Agreement. Thus, the entire Agreement was unenforceable.