Arbitration Archives - New York Appellate Digest

THE CONTRACT PROPERLY ACCORDED THE ARBITRATOR THE AUTHORITY TO DETERMINE “GATEWAY” QUESTIONS OF ARBITRABILITY; NONSIGNATORIES ARE COMPELLED TO ARBITRATE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Miller, over a two-justice dissent, determined: (1) the contract properly accorded the arbitrator the power to decide whether the issues raised in the complaint were arbitrable (so-called “gateway” questions); and (2) the non-signatories, here plaintiff’s LLC and defendant’s law partner and law firm, are subject to the arbitration provision in the contract. Plaintiff is a professional football player and defendant is an attorney who represented plaintiff in contract negotiation and marketing and endorsements. The opinion is detailed and comprehensive and cannot be fully summarized here:

… Revis [plaintiff athlete] entered into an agreement with Schwartz [defendant attorney] pursuant to which they agreed to arbitrate “gateway” questions of arbitrability … . …

… [N]either the Supreme Court, nor this Court, nor any court, has the authority to decide whether and to what extent these parties’ disputes are arbitrable … . Indeed, just as a court may not “rule on the potential merits of the underlying” claim that is assigned by contract to an arbitrator, “even if it appears to the court to be frivolous”… , “a court may not decide an arbitrability question that the parties have delegated to an arbitrator” … , even if the court determines that “the argument that the arbitration agreement applies to the particular dispute is ‘wholly groundless'” … . * * *

“Under the direct benefits theory of estoppel, a nonsignatory may be compelled to arbitrate where the nonsignatory ‘knowingly exploits’ the benefits of an agreement containing an arbitration clause, and receives benefits flowing directly from the agreement” … . “The benefits must be direct, and the party seeking to compel arbitration must demonstrate that the party seeking to avoid arbitration relies on the terms of the agreement containing the arbitration provision in pursuing its claim” … . Revis v Schwartz, 2020 NY Slip Op 08094, Second Dept 12-30-20

December 30, 2020/0 Comments/by Bruce Freeman

Arbitration, Civil Procedure, Evidence, Insurance Law

THERE WAS A QUESTION OF FACT WHETHER THE VEHICLE WHICH STRUCK PETITIONER WAS THE VEHICLE INSURED BY GEICO; ARBITRATION OF PETITIONER’S DEMAND FOR UNINSURED MOTORIST BENEFITS FROM ALLSTATE, HER INSURER, SHOULD HAVE BEEN STAYED AND A FRAMED ISSUE HEARING SHOULD HAVE BEEN ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a stay of arbitration should have been granted and a framed issue hearing granted. Respondent, Michelle Robinson, was struck from behind The driver, Randall, gave Robinson her contact information but left the scene before the police arrived. GEICO, the insurer of the offending vehicle, denied Robinson’s claim stating that Lewis, not Randall, was their insured. Robinson then demanded arbitration for uninsured motorist benefits from Allstate, her insurer. Allstate moved to stay arbitration and requested a framed issue hearing:

“The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay” … . “Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing” … . “Where a triable issue of fact is raised, the Supreme Court, not the arbitrator, must determine it in a framed-issue hearing, and the appropriate procedure under such circumstances is to temporarily stay arbitration pending a determination of the issue” … .

Here, the documents submitted by Allstate in support of the petition demonstrated the existence of sufficient evidentiary facts to establish a preliminary issue justifying a temporary stay … . By submitting the MV-104 motor vehicle accident report and the MVR vehicle record report with the results of the license plate search for the plate number provided by Robinson, Allstate made a prima facie showing that the offending vehicle involved in the subject accident had insurance coverage with GEICO at the time of the accident … .

In opposition, Robinson and the GEICO respondents raised questions of fact as to whether the offending vehicle was involved in the subject accident … . Matter of Allstate Ins. Co. v Robinson, 2020 NY Slip Op 07051, Second Dept 11-25-20

November 25, 2020/by Bruce Freeman

Arbitration, Employment Law, Medicaid

THE ARBITRATOR’S AWARD, REINSTATING NURSING HOME EMPLOYEES WHO WERE FIRED AND INDICTED FOR ALLEGEDLY IGNORING A RESIDENT IN RESPIRATORY DISTRESS, VIOLATED PUBLIC POLICY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the arbitrator’s award, reinstating the employees to their former positions as care providers at a nursing home, violated public policy. The employees were fired and indicted for allegedly ignoring an alarm indicating a resident on a ventilator was in distress:

… [T]he record reflects that after the employees were indicted, inter alia, on felony charges, OMIG [Office of Medicaid Inspector General] notified the employees that they were excluded “from participation in the New York State Medicaid program based on New York State regulations authorizing the immediate exclusion of a person who has been charged with committing an act which would be a felony under the laws of New York and which relates to or results from,” among other things, “the furnishing of or billing for medical care, services or supplies.” Pursuant to 18 NYCRR 515.5(c), “[a] person who is excluded from the program cannot be involved in any activity relating to furnishing medical care, services or supplies to recipients of medical assistance for which claims are submitted to the program, or relating to claiming or receiving payment for medical care, services or supplies during the period.” The regulations also preclude reimbursement for medical care, services, or supplies provided by an excluded person (see 18 NYCRR 515.5[b]), and the Department of Health’s published Medicaid Update instructs Medicaid providers “to ensure that they do not employ, or are affiliated with, any individual who has been excluded from either the Medicare or the Medicaid program” … . There is no evidence in the record that the exclusion was vacated. Therefore, the final result of the arbitrator’s award, reinstating the employees to their former positions, creates an explicit conflict with the subject regulations and their attendant policy concerns … . Civil Serv. Employees Assn., A.F.S.C.M.E. Local 1000, A.F.L.-C.I.O. by its Local 830 v Nassau Healthcare Corp., 2020 NY Slip Op 06777, Second Dept 11-18-20

November 18, 2020/by Bruce Freeman

Arbitration, Contract Law, Judges

THE DISTINCTION BETWEEN DETERMINING THE VALIDITY OF AN AGREEMENT TO ARBITRATE, THE COURT’S ROLE, AND THE INTERPRETATION OF A PROVISION IN THE AGREEMENT, THE ARBITRATOR’S ROLE, EXPLAINED; THE MOTION TO COMPEL ARBITRATION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the motion to compel arbitration should have been granted. Among several substantive issues (not summarized here) the court explained the difference between determining the validity of the arbitration agreement, the court’s role, and interpreting a provision in the agreement, the arbitrator’s role:

The only challenge … that plaintiff could raise in opposition to that part of defendants’ motion seeking to compel arbitration is whether a valid arbitration agreement exists, which is for a court to determine … . The challenge must be directed “specifically to the agreement to arbitrate” … . The validity and enforceability of arbitration agreements is governed by the rules applicable to contracts generally … . “[A] party may resist enforcement of an agreement to arbitrate on any basis that could provide a defense to or grounds for the revocation of any contract, including fraud, unconscionability, duress, overreaching conduct, violation of public policy, or lack of contractual capacity” … .

… [P]laintiff failed to raise any challenge to the validity of the agreement to arbitrate. … [P]laintiff relied on a provision in the arbitration agreement that stated that it would not apply “to any employee represented by a labor organization … ” which plaintiff contends shows that there was no valid agreement to arbitrate. … [P]laintiff’s contention conflates the issue of whether there is a valid agreement to arbitrate, which is for a court to decide, with the issue of the arbitrability of the dispute, which is for the arbitrator to determine. The arbitrability issue includes the interpretation of any contract provision, such as the provision exempting union employees from the arbitration agreement under certain circumstances … . Basile v Riley, 2020 NY Slip Op 06600, Fourth De[pt 11-13-20

November 13, 2020/by Bruce Freeman

Arbitration, Contract Law

IN THIS WRONGFUL DEATH ACTION AGAINST DEFENDANT RESIDENTIAL CARE FACILITY, PLAINTIFF’S DECEDENT DID NOT SIGN THE ADMISSION AGREEMENT AND DECLINED TO HAVE IT READ TO HER; PLAINTIFF’S DECEDENT’S SON, WHO HAD POWER OF ATTORNEY, REFUSED TO SIGN THE AGREEMENT; THE FACILITY CAN NOT ENFORCE THE ARBITRATION CLAUSE IN THE AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the arbitration clause in the defendant residential care facility’s (Richmond Center’s) admission agreement could not be enforced on behalf of plaintiff’s decedent. Plaintiff’s decedent was unable to sign the admission agreement and blinked twice for “no” when asked if she wanted the agreement read to her. Her son, William, had power of attorney but refused to sign the agreement. The facility therefore could not enforce the arbitration clause of the admission agreement in this wrongful death action:

“[A]n arbitration clause in a written agreement is enforceable, even if the agreement is not signed, when it is evident that the parties intended to be bound by the contract” … . “‘The manifestation or expression of assent necessary to form a contract may be by word, act, or conduct which evinces the intention of the parties to contract'” … . “A party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties’ clear, explicit and unequivocal agreement to arbitrate” … .

Here, Richmond Center failed to demonstrate that the resident, or William as her representative, by word, act, or conduct evinced an intention to be bound by the terms of the arbitration agreement. Since the evidence failed to show a clear, explicit, and unequivocal agreement to arbitrate, the plaintiff may not be compelled to arbitrate … . Pankiv v Richmond Ctr. for Rehabilitation & Specialty Healthcare, 2020 NY Slip Op 06279, Second Dept 11-4-20

November 4, 2020/by Bruce Freeman

Arbitration, Contract Law, Employment Law, Municipal Law

UNDER THE CIRCUMSTANCES OF THIS CASE, WHETHER THE CONDITIONS PRECEDENT TO ARBITRATION OF A GRIEVANCE REQUIRED BY THE COLLECTIVE BARGAINING AGREEMENT WERE COMPLIED WITH IS A QUESTION FOR THE COURT, NOT THE ARBITRATOR (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined it was for the court, not the arbitrator, to determine whether the conditions precedent for arbitration were met in this action seeking General Municipal Law Section 207-a benefits for an injured firefighter:

… [T]he CBA [collective bargaining agreement] contains conditions precedent to arbitration within the provisions addressing the grievance procedure and … the court should have decided whether the conditions precedent had been met. “Questions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators,” except in cases involving “a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration” … . Here, compliance with the requirements of steps one and two of the grievance procedure and the time limitations for serving a grievance were conditions precedent to arbitration. Under these circumstances, we conclude that “it was for the court, and not the arbitrator, to decide whether the grievance[] had been timely [served] and completed by the . . . employee at steps one and two of the grievance procedure” … . Therefore, we … remit the matter to Supreme Court for a hearing on the issue whether the conditions precedent to arbitration were met and thereafter for a new determination on the petition to stay arbitration … . Matter of Village of Manlius (Town of Manlius Professional Firefighters Assn., Iaff Local #3316), 2020 NY Slip Op 04251, Fourth Dept 7-24-20

July 24, 2020/by Bruce Freeman

Arbitration, Attorneys

THE ATTORNEY’S FAILURE TO NOTIFY THE CLIENT OF THE CLIENT’S RIGHT TO ARBITRATE A FEE DISPUTE WITHIN TWO YEARS OF WHEN THE LEGAL SERVICES WERE RENDERED PRECLUDES THE ATTORNEY’S ACTION FOR PAYMENT OF THE FEE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Webber, in a matter of first impression, determined plaintiff-attorney’s failure to timely notify defendant-client of the right to arbitrate a fee dispute required dismissal of the attorney’s action seeking attorney’s fees. The Committee on Fee Disputes and Conciliation (Committee) can not hear fee disputes more that two years after legal services were rendered. Plaintiff-attorney did not notify defendant within two years and the Committee refused to hold the arbitration on that ground:

22 NYCRR 137 gives clients the right to demand arbitration of any fee dispute in an amount between $1,000 and $50,000 (22 NYCRR 137.1[b][2]). The failure of an attorney to participate in fee arbitration is a violation of the ethical rules (Rules of Professional Conduct 22 NYCRR 1200.00) rule 1.4; (see 22 NYCRR 137.11). 137.1 sets out the limitations on the disputes that will be heard by the Committee. This includes matters outside the dollar range, claims inextricably intertwined with malpractice claims, and as relevant here, claims where no legal services have been performed in the prior two years (22 NYCRR 137.1[b][6]). …

Fee arbitration is mandatory if requested by a client or a former client. It is a right of the client. Where, as in this case, an attorney, through their own delay deprives the client of that right, the attorney cannot in good faith claim compliance with the procedures of Part 137. Not only would this effectively give counsel the option of whether to arbitrate, because counsel could control whether the dispute began in two years or less, it would also be directly contrary to the rules, which provide that it is the client’s choice. Filemyr v Hall, 2020 NY Slip Op 04238, First Dept 7-23-20

July 23, 2020/by Bruce Freeman

Arbitration, Civil Procedure, Employment Law, Unemployment Insurance

ARBITRATOR’S DECISION FINDING CLAIMANT WAS PROPERLY DISCHARGED FOR MISCONDUCT ENTITLED TO COLLATERAL ESTOPPEL EFFECT IN THE UNEMPLOYMENT INSURANCE PROCEEDING (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined the arbitration decision pursuant to the collective bargaining agreement should have been given collateral estoppel effect by the Administrative Law Judge (ALJ) in the unemployment insurance proceeding. The arbitrator found that the claimant engaged in misconduct warranting discharge. The arbitrator’s decision was issued prior to the ALJ’s decision. The ALJ found claimant did not engage in misconduct and was entitled to unemployment insurance benefits:

Although “the Board is not bound by arbitration decisions regarding [a] claimant’s discharge issued subsequent to the time the Board rendered its decision”… , the Board was informed of the arbitration decision prior to its decision. As such, the factual findings of the arbitrator should have been accorded collateral estoppel effect in relation to the final unemployment insurance decision, so long as the parties had a full and fair opportunity to litigate the misconduct issue at the arbitration hearing … . The fact that the arbitration decision was issued after the conclusion of the unemployment insurance hearing does not preclude its consideration for collateral estoppel purposes, as “the final factfinder in the administrative process is the Board, not the ALJ” … . As the Board indicated that the arbitrator’s decision was not part of the record before it — despite that decision being the focus of, and a copy of it annexed to, the employer’s administrative appeal — the matter must be remitted in order for the employer to submit the arbitration decision into the record and to provide an opportunity for claimant and the employer to provide additional evidence and testimony regarding the nature of the arbitration hearing … . Matter of Bruce (Town of N. Hempstead–Commissioner of Labor), 2020 NY Slip Op 03705, Third Dept 7-2-20

July 2, 2020/by Bruce Freeman

Arbitration, Civil Procedure, Insurance Law

PETITION TO STAY ARBITRATION IN THIS UNDERINSURED MOTORIST PROCEEDING WAS SERVED AFTER THE 20-DAY STATUTORY PERIOD FOR SERVICE AND WAS NOT SERVED IN THE MANNER REQUIRED BY THE STATUTE (CPLR 7503(c)); THEREFORE THE APPLICATION TO STAY ARBITRATION WAS JURISDICTIONALLY DEFECTIVE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the insurer’s (State Farm’s) notice and petition to stay arbitration was not served within the required 20 days and was not properly served. The petition therefore should have been dismissed:

… [T]he insured, Joyce Reid, sent State Farm Insurance Company (hereinafter State Farm) a demand for supplemental underinsured motorist (hereinafter SUM) arbitration, which was received by State Farm on February 14, 2019. On March 22, 2019, State Farm filed a notice of petition and petition seeking to temporarily stay the arbitration pending the completion of pre-arbitration discovery. That notice and petition were served upon counsel for Reid by first-class mail on March 22, 2019. …

CPLR 7503(c) requires that an application to stay arbitration be made within 20 days after service of a demand to arbitrate. “This limitation is strictly enforced and a court has no jurisdiction to entertain an untimely application” … . CPLR 7503(c) also directs that notice of an application to stay arbitration “shall be served in the same manner as a summons or by registered or certified mail, return receipt requested.”

… State Farm did not file its notice of petition and petition until March 22, 2019, which was beyond the 20-day statute of limitations. Consequently, the proceeding is time-barred … .

Moreover, State Farm’s notice of petition and petition to stay arbitration were served by regular first-class mail, rather than by registered or certified mail, return receipt requested. Since there was a lack of compliance with CPLR 7503(c), the present proceeding was jurisdictionally defective … . Matter of State Farm Ins. Co. v Reid, 2020 NY Slip Op 03517, Second Dept 6-24-20

June 24, 2020/by Bruce Freeman

Appeals, Arbitration, Contract Law

ALTHOUGH REFORMATION OF THE CONTRACT MAY HAVE CONSTITUTED REVERSIBLE ERROR HAD A COURT DONE IT, THE REFORMATION WAS APPROPRIATE IN THE CONTEXT OF AN ARBITRATION OF THIS COMPLEX COMMERCIAL DISPUTE; THE ARBITRATION AWARD WAS PROPERLY CONFIRMED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Oing, determined that, under the highly deferential standard of court-review of arbitration awards, the award here was properly confirmed, despite an error which might have required reversal if committed by a court. The underlying facts (the provisions of the contract) are too complex to fairly summarize here:

The arbitrator’s reason for inserting a $10 million deduction * * * [was] not in reliance on any of the provisions set forth in the [contract]. Among other arguments made to the arbitrator, petitioner requested that the relevant portion of the … agreement be reformed … . Although the arbitrator did not expressly so characterize his determination, reformation was, in substance, the permissible relief he granted (see Matter of SCM Corp. [Fisher Park Lane Co.], 40 NY2d 788, 792-793 [1976] [arbitrators have the power to fashion remedies, such as reformation, appropriate to the resolution of the dispute]). While a court’s grant of reformation based on this record might constitute reversible error, the arbitrator’s determination here passes muster, given the extremely limited scope of our review of an arbitration award (see American Intl Specialty Lines Ins. Co. v Allied Capital Corp., __ NY3d [*4]__, 2020 NY Slip Op 02529 [2020] [arbitrators routinely use their expertise to orchestrate expeditious resolutions to complex commercial legal disputes and courts are discouraged from becoming unnecessarily entangled in arbitrations]). … The result the arbitrator reached … is supportable as a reformation of the parties’ agreement, given the highly deferential standard of review accorded arbitration awards under CPLR article 75 … . Matter of Rose Castle Redevelopment II, LLC v Franklin Realty Corp., 2020 NY Slip Op 03293, First Dept 6-11-20

June 11, 2020/by Bruce Freeman