Arbitration Archives - New York Appellate Digest

THE CONTRACT WAS BETWEEN CORPORATIONS IN DIFFERENT STATES, THEREFORE INTERSTATE COMMERCE WAS IMPLICATED AND THE FEDERAL ARBITRATION ACT (FAA) APPLIED; THE CONTRACT PROPERLY PROVIDED THAT THE ARBIRTRATOR, NOT A COURT, WILL DECIDE GATEWAY ISSUES OF ARBITRABILITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the Federal Arbitration Act (FAA) applied to the contract between corporations from different states and the contract properly provided that gateway issues of arbitrability are to be decided by the arbitrator, not the court:

Where “a contract containing an arbitration provision ‘affects’ interstate commerce, disputes arising thereunder are subject to the FAA” … . The surety agency agreement here between corporations from different states gave rise to a finding of interstate commerce and was subject to the FAA … . Although “a New York court, applying the Federal Arbitration Act, limits its inquiry to whether there is a valid agreement to arbitrate the particular dispute” and all other questions are for the arbitrator … , the parties can agree to arbitrate gateway issues of arbitrability … .

Applying principles of New York state contract law, based on the choice of law provision governing the surety agency agreement … , and reading the contractual clauses together in context … , the provision that “[i]f a dispute or disagreement arises in connection with this Agreement, including a dispute or disagreement as to its formation or validity, such dispute or disagreement shall be submitted to arbitration,” refers any disputes over the validity or formation of the arbitration provision in question to arbitration. Accordingly, the matter here should proceed to arbitration. Matter of Bergassi Group LLC v Allied World Ins. Co., 2021 NY Slip Op 02265, First Dept 4-13-21

April 13, 2021/0 Comments/by Bruce Freeman

Arbitration, Attorneys, Civil Procedure, Legal Malpractice, Negligence

PLAINTIFF COMMENCED A MALPRACTICE ACTION AGAINST DEFENDANT ATTORNEYS; THE ATTORNEYS COMMENCED AN ARBITRATION PROCEEDING AGAINST PLAINTIFF, BASED ON THE RETAINER AGREEMENT, FOR UNPAID ATTORNEY’S FEES; BOTH THE ARBITRABLE FEE DISPUTE AND THE NONARBITRABLE MALPRACTICE ACTION ARE SUBJECT TO ARBITRATION WHILE THE MALPRACTICE ACTION IS STAYED (FIRST DEPT).

The Frist Department, reversing Supreme Court, determined the retainer agreement which required arbitration of any attorney’s-fee dispute, which was entwined in the plaintiff’s malpractice action against the attorneys, required that both the arbitrable fee dispute and the nonarbitrable malpractice action be addressed in the arbitration:

There is no dispute that there is a valid agreement between the parties to arbitrate any dispute regarding unpaid fees. Thus, the court must compel arbitration of defendants’ claim for unpaid fees and stay this action pending completion of the arbitration (CPLR 7503[a]). Moreover, because plaintiff’s nonarbitrable malpractice claim is inextricably intertwined with the arbitrable claim for unpaid fees, the proper course is to stay the action pending completion of the arbitration … . …

To the extent plaintiff argues that it cannot be forced to arbitrate its malpractice claim because it did not explicitly agree to do so, both the First and Second Departments have clearly found that a nonarbitrable issue can be decided in an arbitration when it is inextricably intertwined with an arbitrable issue, particularly where, as here, the determination of the arbitrable unpaid fees claim may dispose of the nonarbitrable malpractice claim … . Protostorm, Inc. v Foley & Lardner LLP, 2021 NY Slip Op 02227, First Dept 4-8-21

April 8, 2021/0 Comments/by Bruce Freeman

Arbitration, Civil Procedure, Contract Law, Employment Law

CPLR 7515, ENACTED IN 2018, DOES NOT APPLY RETROACTIVELY TO PROHIBIT MANDATORY ARBITRATION OF SEXUAL HARASSMENT CLAIMS (FIRST DEPT).

The First Department, reversing Supreme Court, determined CPLR 7515, enacted in 2018, should not be applied retroactively to prohibit arbitration of a sexual harassment claim:

The provisions of CPLR 7515 relied on by plaintiff are not retroactively applicable to arbitration agreements, like the one at issue, that were entered into preceding the enactment of the law in 2018, so that plaintiff’s argument that this law prohibits arbitration of her claims is unavailing … . Newton v LVMH Moet Hennessy Louis Vuitton Inc., 2021 NY Slip Op 01558, First Dept 3-18-21

March 18, 2021/by Bruce Freeman

Agency, Arbitration, Contract Law

ALTHOUGH THE PUBLIC HEALTH LAW GAVE THE DECEDENT’S DAUGHTER THE AUTHORITY TO EXECUTE THE NURSING HOME’S ADMISSION AGREEMENT ON BEHALF OF HER FATHER, THE PUBLIC HEALTH LAW DID NOT GIVE HER THE AUTHORITY TO SIGN A BINDING ARBITRATION AGREEMENT ON HER FATHER’S BEHALF; THEREFORE THE DECEDENT’S WIFE WAS NOT BOUND BY THE ARBITRATION AGREEMENT IN HER SUIT AGAINST THE NURSING HOME (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff wife’s adult daughter had the authority, pursuant to the Public Health Law, to execute the nursing home’s admission agreement on behalf of plaintiff’s husband (her father), who was deemed incapable of making health-care related decisions. In addition to the admission agreement, plaintiff’s daughter signed a binding arbitration agreement on her father’s behalf. After plaintiff’s husband died, plaintiff sued the nursing home which asserted that that the matter was subject to the arbitration agreement. The First Department held that, pursuant to the Public Health Law, plaintiff’s daughter had the authority to sign the admission agreement, because it related to her father’s health care, but she did not have the authority to sign the arbitration agreement:

The authority of the decedent’s daughter to act as a “surrogate” decision-maker pursuant to PHL 2994-d at the time decedent was admitted to JHL was limited to making decisions regarding “[a]ny treatment, service, or procedure to diagnose or treat an individual’s physical or mental condition” (PHL 2994-a[12]). Although she had authority, pursuant to PHL 2994-d, to execute the Agreement for purposes of admitting her father into the facility for health care treatment, she did not have the authority to execute the Binding Arbitration Agreement on his behalf. Such agreement was entirely optional and had no bearing on the father’s health care. Accordingly, it is entirely outside of the purview of surrogate decision-maker’s authority set forth in PHL 2994-d. Gayle v Regeis Care Ctr., LLC, 2021 NY Slip Op 01197, First Dept 2-25-21

February 25, 2021/by Bruce Freeman

Arbitration, Contract Law, Employment Law, Human Rights Law

UNDER THE TERMS OF THE COLLECTIVE BARGAINING AGREEMENT PLAINTIFF MUST ARBITRATE HIS RACIAL DISCRIMINATION CLAIMS; AFTER THE UNION REFUSED TO ARBITRATE THE CLAIMS PLAINTIFF BROUGHT THE INSTANT HUMAN RIGHTS LAW CAUSES OF ACTION; THE COMPLAINT WAS STAYED PENDING ARBITRATION (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Christopher, determined plaintiff’s racial discrimination claims were subject to mandatory arbitration under the controlling collective bargaining agreement (CBA). The union had declined to pursue the arbitration of the discrimination claims and plaintiff then commenced the instant action pursuant to the NYS and NYC Human Rights Law. The opinion is to detailed to fairly summarize here. The plaintiff’s complaint was stayed pending arbitration:

“[A]rbitration must be preferred unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute” … . An agreement to arbitrate must be “clear, explicit and unequivocal” … . “Arbitration is a matter of contract, and arbitration clauses, which are subject to ordinary principles of contract interpretation, must be enforced according to their terms” … . * * *

… [I]n order for the plaintiff to be required to arbitrate his employment discrimination claims, the CBA must “clearly and unmistakably” waive the plaintiff’s right to proceed in a judicial forum … . Here, the mandatory arbitration clause “clearly and unmistakably” waives the plaintiff’s right to proceed in a judicial forum. It explicitly references the employment discrimination statutes that the plaintiff has alleged were violated, and states that “[a]ll such claims shall be subject to the grievance and arbitration procedure . . . as the sole and exclusive remedy for violations.” * * *

The Supreme Court’s determination to grant that branch of the defendants’ motion which was, in effect, pursuant to CPLR 3211(a) to dismiss the complaint was improper. “An agreement to arbitrate is not a defense to an action,” and “[t]hus, it may not be the basis for a motion to dismiss” … . However, upon granting that branch of the defendants’ motion which was to compel arbitration pursuant to CPLR 7503(a), the court should have stayed the action …, the order granting a motion to compel “shall operate to stay a pending . . . action.” Wilson v PBM, LLC, 2021 NY Slip Op 00593, Second Dept 2-3-21

February 3, 2021/by Bruce Freeman

Arbitration, Contract Law

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/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