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In the Matter of Gilbert v. Ottman

Appellate Division of the Supreme Court of New York, First Department
Jun 16, 2005
19 A.D.3d 223 (N.Y. App. Div. 2005)

Opinion

6376N.

June 16, 2005.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered December 14, 2004, directing the parties to proceed to arbitration, unanimously affirmed, without costs.

Carol Lilienfeld, New York, for appellant.

Melvin F. Greenberg, New York, for respondent.

Before: Marlow, J.P., Ellerin, Nardelli and Sweeny, JJ.


Respondent's original argument that the addendum to the subject agreement constitutes a "release" of all obligations under the agreement, including that of arbitration, was correctly rejected by the motion court on the ground that the addendum does not mention arbitration or otherwise manifest a specific intent to terminate the right thereto ( see Matter of Schlaifer v. Sedlow, 51 NY2d 181; Matter of Primex Intl. Corp. v. Wal-Mart Stores, 89 NY2d 594, 601). Respondent's present argument that the addendum and subsequent conduct of the parties constitute an "implied revocation" of the agreement, including the obligation to arbitrate, is improperly raised for the first time on appeal ( see National Union Fire Ins. Co. v. Pachnanda, 258 AD2d 256), and we decline to review it. We also reject respondent's argument that the arbitration provision terminated by its own terms. Under the agreement, such termination was to occur one year after one party gave the other written notice of, inter alia, intention to separate. Since it does not appear that any such written notice was ever given, the one-year period never began to run.


Summaries of

In the Matter of Gilbert v. Ottman

Appellate Division of the Supreme Court of New York, First Department
Jun 16, 2005
19 A.D.3d 223 (N.Y. App. Div. 2005)
Case details for

In the Matter of Gilbert v. Ottman

Case Details

Full title:In the Matter of CLIFF GILBERT, Respondent, v. GARY OTTMAN, Appellant

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 16, 2005

Citations

19 A.D.3d 223 (N.Y. App. Div. 2005)
796 N.Y.S.2d 525