Summary
In Grunstein, the First Department found that "there was no clear, explicit, and unequivocal agreement" between the parties to arbitrate their dispute because the applicable contractual clause called for arbitration only if one party first elected to proceed to mediation, and that party had not, in fact, elected to do so.
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13339 Index No. 657450/19 Case No. 2020-02304
03-16-2021
Schwartz Sladkus Reich Greenberg Atlas LLP, New York (Ethan A. Kobre of counsel), for appellant. Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for respondent.
Schwartz Sladkus Reich Greenberg Atlas LLP, New York (Ethan A. Kobre of counsel), for appellant.
Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for respondent.
Renwick, J.P., Kapnick, Oing, Moulton, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered February 13, 2020, which denied the petition to stay arbitration and dismissed the proceeding, unanimously reversed, on the law, without costs, and the stay of arbitration granted.
Petitioner Board of Managers of the 825 West End Condominium (the Board) brings this Article 75 proceeding to stay arbitration commenced by respondent Sarah Grunstein, the owner and resident of an apartment in the condominium building, before the American Arbitration Association. The underlying dispute concerns alleged water leaks and mold in Grunstein's apartment. The issue of whether this dispute falls within the scope of the subject narrow arbitration provision is properly decided by the court in the first instance (see Zachariou v. Manios, 68 A.D.3d 539, 539, 891 N.Y.S.2d 54 [1st Dept. 2009] ).
A party to an agreement will not be compelled to arbitrate, and thereby surrender the right to resort to courts, in the absence of evidence affirmatively establishing that the parties expressly agreed to arbitrate the dispute at hand (see God's Battalion of Prayer Pentecostal Church, Inc. v. Miele Assoc., LLP, 6 N.Y.3d 371, 374, 812 N.Y.S.2d 435, 845 N.E.2d 1265 [2006] ; Matter of Waldron [Goddess], 61 N.Y.2d 181, 183–184, 473 N.Y.S.2d 136, 461 N.E.2d 273 [1984] ). "The agreement [to arbitrate] must be clear, explicit and unequivocal[,] and must not depend upon implication or subtlety" ( id. [citations omitted]).
Here, the bylaws provide for arbitration, in a dispute between a unit owner and the Board, only if the Board "elect[s]" to mediate. If the Board elects to mediate, the parties must proceed to mediate their dispute; and if the mediation is not "successful[ ]" the parties must then proceed to arbitration. Conversely, if there was no mediation because the Board did not "elect" one, there is no arbitration mandate. It is undisputed that the Board elected not to mediate the instant dispute. Thus, under the circumstances of this case, there was no clear, explicit, and unequivocal agreement between the petitioner and respondent to submit the dispute to arbitration (see Waldron, 61 N.Y.2d at 183–184, 473 N.Y.S.2d 136, 461 N.E.2d 273 ; Art and Fashion Group Corp. v. Cyclops Prod., Inc., 120 A.D.3d 436, 992 N.Y.S.2d 7 [1st Dept. 2014] ; see also Messiah's Covenant Community Church v. Weinbaum, 74 A.D.3d 916, 918, 905 N.Y.S.2d 209 [2d Dept. 2010] ).
Because of our disposition of these issues, we need not reach the parties' arguments with respect to waiver of the right to arbitrate.