However, plaintiff Natasha Severin and the other class members cannot be compelled to arbitrate their claims. It is well settled that "a court will not order a party to submit to arbitration absent evidence of that party's unequivocal intent to arbitrate the relevant dispute, and unless the dispute is clearly the type of claim that the parties agreed to refer to arbitration" ( Brady v. Williams Capital Group, L.P. , 64 A.D.3d 127, 131, 878 N.Y.S.2d 693 [1st Dept. 2009], affd in part and mod in part 14 N.Y.3d 459, 902 N.Y.S.2d 1, 928 N.E.2d 383 [2010] [internal quotation marks omitted]; seeMatter of Helmsley [Wien] , 173 A.D.2d 280, 281, 569 N.Y.S.2d 672 [1st Dept. 1991] ). In this case, the collective bargaining agreement which Severin and the class members were party to did not contain an arbitration clause that covered the claims alleged in the complaint.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered March 3, 2017, which, to the extent appealed from as limited by the briefs, upon reargument, adhered to the original determination denying petitioner Capital Enterprises Co.'s motion to compel the arbitration of its partnership dissolution claim (including the distribution of assets), unanimously reversed, on the law, without costs, and the motion to compel granted. Since the alleged oral agreement to sell or transfer partnership assets attempts to modify several substantive provisions of petitioner's partnership agreement concerning the distribution of partnership assets, the broad arbitration provision of the partnership agreement controls the parties' dispute (see Matter of Helmsley [Wien], 173 A.D.2d 280, 569 N.Y.S.2d 672 [1st Dept.1991] ). The merits of the claims, such as the applicability of the statute of frauds, should be determined by the arbitrator (see CPLR 7501 ; Matter of Praetorian Realty Corp. [Presidential Towers Residence], 40 N.Y.2d 897, 898, 389 N.Y.S.2d 351, 357 N.E.2d 1006 [1976] ).
Since the alleged oral agreement to sell or transfer partnership assets attempts to modify several substantive provisions of petitioner's partnership agreement concerning the distribution of partnership assets, the broad arbitration provision of the partnership agreement controls the parties' dispute (see Matter of Helmsley [Wien] , 173 AD2d 280 [1st Dept 1991]). The merits of the claims, such as the applicability of the statute of frauds, should be determined by the arbitrator (see CPLR 7501; Matter of Praetorian Realty Corp. [Presidential Towers Residence] , 40 NY2d 897, 898 [1976]).
This case involves a former employee seeking to compel a former employer to arbitrate. It is well settled that a court will not order a party to submit to arbitration absent evidence of "that party's unequivocal intent to arbitrate the relevant dispute" ( Matter of Helmsley [Wien], 173 AD2d 280, 281), and unless the dispute is clearly the type of claim that the parties agreed to refer to arbitration ( Matter of Bunzl [Battanta], 224 AD2d 245, 246). The threshold determination of "whether there is a clear, unequivocal and extant agreement to arbitrate" the disputed claims is to be made by the court and not the arbitrator ( Matter of Primex Intl. Corp. v Wal-Mart Stores, 89 NY2d 594, 598).
Before a party can be forced to forgo its rights to judicial review and submit its disputes to arbitration, there must be evidence that the parties intended to submit the relevant dispute to arbitration ( see Matter of Writers Guild of Am. E. [ Prockter Prods.], 1 NY2d 305; Bowmer v. Bowmer, 50 NY2d 288; Matter of Helmsley [ Wien], 173 AD2d 280 [1st Dept 1991]; see also 21 UST 2517, art II, para 1). In HSBC Bank USA v. National Equity Corp. ( 279 AD2d 251, 252 [1st Dept 2001] [although not involving the UN Convention]), the parties' agreement gave the lender, HSBC, the right, "at any time prior to the commencement of a judicial proceeding, to submit any disputes to arbitration, but by so electing the lender is not thereby required to submit all disputes to arbitration."
Here, however, the clause in question not only excepts disputes involving intellectual property rights from arbitration but also, in equally clear language, removes the exception for intellectual property disputes from the Rules of the AAA. Thus, the governing principle remains: a court will not order a party to submit to arbitration absent evidence of that party's "'unequivocal intent to arbitrate the relevant dispute'" ( Primavera Labs. v. Avon Prods., 297 AD2d 505, 505, quoting Matter of Helmsley [Wien], 173 AD2d 280, 281). It is for the court to determine whether the parties have agreed to arbitrate the particular issue.
WDF and American appeal and we now reverse. It is well settled that a court will not direct a party to submit to arbitration in the absence of that party's "unequivocal intent to arbitrate the relevant dispute" ( Matter of Helmsley [Wien], 173 A.D.2d 280, 281; see also Primavera Labs, Inc. v. Avon Prods., Inc., 297 A.D.2d 505). Since there is no evidence presented herein indicating that Arc ever agreed to arbitrate, arbitration was properly stayed as to that entity.
Before: Nardelli, J.P., Tom, Rosenberger, Wallach, Friedman, JJ. It is well settled that a court will not order a party to submit to arbitration absent evidence of that party's "unequivocal intent to arbitrate the relevant dispute" (Matter of Helmsley [Wien], 173 A.D.2d 280, 281; accord, Matter of Bunzl [Battanta], 224 A.D.2d 245), and unless the dispute falls clearly within that class of claims which the parties agreed to refer to arbitration (Matter of Bunzl [Battanta], 224 A.D.2d at 246). The threshold determination of whether there is a "clear, unequivocal and extant agreement to arbitrate" the disputed claims is to be made by the court and not the arbitrator (Matter of Primex Intl. Corp. v. Wal-Mart Stores, Inc., 89 N.Y.2d 594, 598; Sisters of St.John the Baptist v. Philips R. Geraghty Constructor, 67 N.Y.2d 997, 998), and arbitration clauses, as contractual agreements, must be enforced according to their terms, even if the result is bifurcated litigation (PNE Media, LLC v. Cistrone, 294 A.D.2d 143, 741 N.Y.S.2d 405; HSBC Bank USA v. Natl. Equity Corp., 179 A.D.2d 251, 254).
To resolve this dispute, Bunzl seeks access to an arbitral forum, relying on the mandatory arbitration language in the BBS Shareholders Agreement. A court will not order a party to submit to arbitration absent evidence of that party's "unequivocal intent to arbitrate the relevant dispute" ( Matter of Helmsley [Wien], 173 A.D.2d 280, 281), and unless the "dispute falls clearly and unequivocally within the class of claims agreed to be referred to arbitration" ( Matter of Acting Supt. of Schools [United Liverpool Faculty Assn.], 42 N.Y.2d 509, 515). "The determination of whether there is a clear, unequivocal and extant agreement to arbitrate the disputed claims * * * is a question for the court and not the arbitrator" ( Matter of Polar Entertainment Corp. [Directors Guild], 189 A.D.2d 711).
Defendant will not be excused from the agreement he executed by reason of his failure or purported inability to read it (see, Chemical Bank v Masters, 176 A.D.2d 591, 592). The record, including defendant's own statements, shows him to be a sophisticated businessman capable of clearly expressing his intent (see generally, Matter of Helmsley [Wien], 173 A.D.2d 280), who understood the essential nature of the agreement (cf., National Bank v Chu, 47 N.Y.2d 946, revg for reasons stated in dissenting mem 64 A.D.2d 573, 575-577). Defendant has also not shown that plaintiff was aware, or should have been aware, of defendant's alleged misunderstanding (see, Sterling Natl. Bank Trust Co. v I.S.A. Merchandising Corp., 91 A.D.2d 571, 572).