TO BE ENFORCABLE, AN AGREEMENT TO ARBITRATE MUST BE CLEAR, EXPLICIT AND UNEQUIVOCAL; HERE THE WORD “DISAGREEMENTS” IN THE ARBITRATION CLAUSE WAS TOO VAGUE AND AMBIGUOUS TO REQUIRE PLAINTIFF TO ARBITRATE HER CLAIMS OF UNPAID COMMISSIONS AND WRONGFUL TERMINATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the arbitration clause in the employment agreement was ambiguous and vague. The clause could not be the basis for forcing plaintiff to arbitrate her claims that she was not paid commissions owed to her and was wrongfully terminated:

… “[A] party will not be compelled to arbitrate and, thereby, to surrender the right to resort to the courts, absent ‘evidence which affirmatively establishes that the parties expressly agreed to arbitrate their disputes'” … . “The agreement must be clear, explicit and unequivocal and must not depend upon implication or subtlety” … .

Here, the provision, “[t]hird party in case of a disagreement: Rabbi Shlomo Gross (Belze Dayan) or Rabbi Meir Labin,” does not expressly and unequivocally establish that the parties agreed to arbitrate the plaintiffs’ claims for unpaid commissions or wrongful termination … . Moreover, this provision ambiguously refers to a disagreement, but does not specify the types of disagreements to which it applies … . Rubinstein v C & A Mktg., Inc., 2022 NY Slip Op 03136, Second Dept 5-11-22

Practice Point: Plaintiff alleged the defendant employer did not pay her commissions she was owed and wrongfully terminated her. Although the employment contract called for the arbitration of “disagreements,” that term was not specific enough to serve as a basis for forcing plaintiff to arbitrate her unpaid-commission and wrongful-termination claims.