Donnkenny Apparel, Inc. v. Lee

291 A.D.2d 224, 736 N.Y.S.2d 862, 2002 N.Y. App. Div. LEXIS 1522

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 2002
• Status: Published

Opinion

—Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered September 26, 2001, which granted the petition for a stay of arbitration and denied respondent’s cross motion to compel arbitration, unanimously affirmed, without costs.

Supreme Court properly granted a stay of arbitration since there was no “evidence which affirmatively established] that the parties expressly agreed to arbitrate their disputes” (Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1, 6). Although respondent alleges that the parties orally agreed to arbitrate disputes respecting her employment, any alleged oral arbitration agreement was unenforceable under CPLR 7501 and any renewal of the parties’ expired written employment contract, which did contain an arbitration provision, was expressly required by the expired agreement to be in writing.

Contrary to respondent’s contention, the continuation of her employment, either by operation of law or the conduct of the parties, was insufficient to extend the arbitration provision of the expired contract. Although the conduct of the parties subsequent to the expiration of a contract may be construed to imply an agreement to extend some of the provisions of the expired contract, it may not, in the absence of a clearly expressed intention to renew the arbitration provision, bind a party to arbitrate (see, Matter of Waldron [Goddess], 61 NY2d 181, 185). Concur — Williams, J.P., Andrias, Rosenberger and Buckley, JJ.