Opinion
Index No. 527084/2019 Mot. Seq. Nos. 1 2
09-01-2022
JOHN RUIZ, Plaintiff, v. REVEL TRANSIT INC.; B. WILHELM & CO., LLC, WILHELMS HOUSEWARES; SHOV WING WANG; and CONGREGATION KHAL TORAS CHAIM INC. d/b/a CONG VIZNITZ D'KHAL TORAS CHAIM d/b/a, YESHIVAS AHAVAS ISRAEL; and YESHIVATH VIZNITZ D'KHAL TORATH CHAIM INC., Defendants.
Unpublished Opinion
Motion Date: 8/3/2022
DECISION/ORDER
MONTELIGNE, RICHARD J., J.
The following papers were read on this motion pursuant to CPLR 2219(a);
Papers
NYSCEF DOC.,#
Plaintiff S; Notice of Motion dated March 6, 2020, a) Striking the Sixth (waiver bf plaintiffs right to a trial by jury) and Ninth Affirmative Defenses (binding arbitration) alleged in Defendant, Revel Transit Inc's, Answer dated February 7, 2020; staying any arbitration demanded by Defendant, Revel Transit,; Inc., Attorney Affirmation of Jeffrey B. Manca, Esq., affirmed on March 17, 2020; Exhibits A-J..................
7-28
Defendant Revel Transit, Inc's motion dated July 24, 2020: 1) Granting Defendant's Gross-Motion to Compel Arbitration in its entirety; and 2) For such other relief this Honorable Court deems just and necessary; Affidavit of Paul Suhey, duly sworn on July 22, 2020; Exhibits A-L; Attorney Affirmation in opposition to plaintiffs motion) and support of defendant Revel Transit, Inc's cross-motion, affirmed on July 24, 2020; Exhibits A-H....................................................................................
30-52
Defendants Congregation Khal Toras Chaim Inc. D/B7A Cong Viznitz D'khal Toras Chaim D/B/A Yeshjvas Ahavas Israel; and Yeshivath Viznitz D'khal Torath Chaim Inc.'s opposition to defendants cross motion by way of attorney affirmation of Steven F, Granville, Esq., affirmed on August24, 2020, in..................................................
This action was commenced by filing a summons and: complaint on December U, 2019, which alleges personal injuries as a result of a motor vehicle accident oh September 27, 2019, involving a moped rented from defendant Revel Transit, Inc. Plaintiff moves to strike the sixth and ninth affirmative defenses asserting respectively waiver of a jury trial and binding arbitration under its rental agreement. Defendant Revel Transit, Inc. cross-moves to compel arbitration and stay the proceedings pending confirmation of an arbiter's award. Defendants Congregation Khal Toras Chaim Inc. D/B/A Cong Viznitz D'khal Toras Chaim D/B/A Yeshivas Ahkvas Israel and Yeshivath Viznitz D'khal Torath Chaim Inc. assert that to direct arbitration would be the equivalent of severance which they oppose.
The court finds no issue of fact that the terms of the rental agreement of the moped included an arbitration clause. The allegations that the moped was not properly maintained is directly related to the issue of liability and causation regarding this accident. See Weiss v. Nath, 97 A.D.3d 661, 663,949 NY.S.2d 81, 84,2012 NY. Slip Op. 05513, 2012 WL 2816700 (AD 2nd:Dept 2012):
" '[W]here arbitrable and nonarbitrable claims are inextricably interwoven, the proper course is to stay judicial proceeding? pending completion of the arbitration, particularly where the determination of issues in arbitration may well dispose of nonarbitrable matters'" (Anderson St. Realty Corp. v. New Rochelle Revitalization, LLC, 78 A.D.3d 972,975, 913 N.Y.S.2d 114, quoting 4-24 NY. Practice Guide: Business and Commercial § 24.09[4]). However, courts have the power to sever arbitrable causes of action from nonarbitrabie causes of action where judicial economy would not be served by their consolidation, and where there is no danger of inconsistent rulings by the arbitrator and the court, or where there is no potential that the determination of the arbitrable causes of action would dispose of or significantly limit the issues involved in the nonarbitrable causes of action (see American Intl. Group, Inc. v. Greenberg, 60 A.D.3d 483,484, 875 NY.S.2d 39; Matter of City of Schenectady [Schenectady Patrolmen's Benevolent Assn.] 138 A.D.2d 882, 526 N.Y.S.2d 259).That court notes that all the decisions provided by defendant Revel Transit], Inc. in support of a stay Involve two parties to the arbitration agreement and do not involve, as| present in this action, multiple defendants. Here, Revel Transit, Inc. cross claims against co-defendants and certain of the co-defendants cross claim against Revel Transit, Inc. The complaint alleges negligence by Revel Transit, Inc. in maintaining the moped and Revel Transit, Inc. cross-claims against other co-defendants alleging their negligence who likewise cross-claim against Revel Transit, Inc. Unlike the multiparty defendants in Neesemann v ML Sinai W., 198 A.D.3d 484, 486, 156 N.Y.S.3d 161, 162-63, 2021 WL Slip Op 05633, 2021 WL 4778362 [1st Dept 2021] Where the court allowed the continuation of the proceedings, even though two parties agreed to arbitration, because the causes of action involving the parties not subject to arbitration were not factually: intertwined, here the issue of maintenance of the moped is directly related to the vehicular accident and the negligence of the other co-defendants. If the causes of action involving the defendants were not intertwined, the court would be mandated to severe the parties not subject to arbitration from the action. See Weiss v. Nath, 97 A.D.3d 661, 663.
Decision and Order of Judge Frank P. Nervo in the Gina Vergel v. Revel Transit Incorporated case, New York County Supreme Court, Index No/150020/2021, entered of May 11, 2021; Decision and Order of Judge Paul A, Goetz in the Erick Das Chagas v. Revel Transit Incorporated case, New York County Supreme Court, Index No. 150197/2021, entered on June 16, 2021; Decision and Order of Judge Frank P. Nervo in the Jessica Long v. Revel Transit Incorporated case, New York County Supreme Court, Index No. 150413/2021, entered on June 16, 2021; Decision and Order of Judge W. Franc Perry In the Matter of the Application of Lezer Weiss v. Revel Transit Incorporated action, New York County Supreme Court, Index No. 651018/2021, entered on July 9, 2021; Decision and Order of The Honorable Frank. Nervo in the Emelie Moeslein v. Revel Transit Inc., case, New York County Supreme Court,Index No. 450744/2021,dated May 26- 2022; Troy Harrison v. Revel Trainsit Inc., case, Kings County Supreme Court, Index No. 519046/2020, dated February 7, 2022; Benjamin Weissman v. Revel Transit Inc., case, New York County Supreme Court, Index No. 152136/2021, dated February 25,2022; and Afadikwei Reyes v. Revel Transit Inc., case, Kings County Supreme Court, Index No. 515810/2020, dated March 30, 2022.
Defendant Revel Transit, Inc. is entitled to compel arbitration even when there is a multi-party action involving other defendants. See Neesemann v Mt. Sinai W., 198 A.D.3d 484, 486:
Finally, plaintiff failed to show that she will be prejudiced by having to litigate the claims in different fora at the risk of conflicting verdicts. 'The mere fact that plaintiffs named additional defendants, who are not signatories to the arbitration agreement, does not foreclose [a defendant's] right to enforce arbitration' (Minogue v. Malhan, 178 A.D.3d 447, 448, 114 N.Y.S.3d 6% [1st Dept, 2019]). The court properly exercised its discretion in finding that numerous co-defendants had treated decedent at separate and distinct times and those claims were not so intertwined withj her claims against Kindred as to result in prejudice and/or to wairrant a stay of all proceedings (id:).
Based on the foregoing, it is
ORDERED that plaintiff s motion to strike the sixth (waiver of plaintiffs right to a trial by jury) and ninth affirmative defenses (binding arbitration) and to stay arbitration is DENIED; and it is further
ORDERED that defendant Revel Transit Ine.'s: cross-motion to Compel Arbitration is GRANTED and plaintiff and defendant Revel Transit, Inc. are to file the necessary paperwork to commence arbitration proceedings within 30 days of entry of this order or failing to do so shall result in its waiver of arbitration; and it is further
ORDERED that this matter is STAYED pending a determination by this court of an application seeking to confirm or set aside the award of the assigned arbitrator; and it .ijs further
ORDERED that any party may move the court to lift the stay in the event of any delay in seeking a determination through arbitration and/or confirmation or to set aside the decision of the assigned arbitrator; and it is further
ORDERED that all other requests for relief are DENIED.
This constitutes the decision and order of the Court.