Halperin v. Souid
Opinion
Halperin v Souid
2024 NY Slip Op 34264(U)
December 3, 2024
Supreme Court, Kings County Docket Number: Index No. 528008/2024 Judge: Leon Ruchelsman
Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
FILED: KINGS COUNTY CLERK 12/03/2024 11:44 AM INDEX NO. 528008/2024 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 12/03/2024
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: CIVIL TERM: COMMERCIAL$ ------------ - ------------- - - ----- ---x PINCHAS ,HALPERIN,
Petitioner beqision and order - against - Index No. 528008/2024
QR. SALIM SOUID,
Respondent, December 3, 2024 . ..- - - --- -.- - -·- -- -- - - . . - - - - - - -.- - -- - - - - - -·- -·- x· PRESENT: HON. LEON RUCHELSMAN Motion Seq. #1
The petitioner has moved CPLR §7503 seeking to compel arbitration. The respondent has opposed the motion. Papers were submitted by the parties and arguments were beld. After reviewing all the arguments, this court how rnakesthe following determination.
On June 15, 2022 the respondent executed an operating agreement whereby he agreed to become the medical director of a medical facility called Health Plus MD LLC. The petition alleges that in July 2024 the respondent violated the operating agreement by assuming management 0 uthority not permitted pursuant to the ag:teemen t . This included, essentially, l ockin:g the peti t.i oner out of the business in all respects. Pursuant to Article 12,2 of the operating agreement the petitioner demanded arbitration before th,e arbitrator specifically delineated within the
operating a'greement. The respondent refused to participate with tna t a rbi t.rator and this motion has t1ow .been f i ied. T.he
petitior:rer se.eks to compel .arbitration. The respondent opposes the. motion arguing he never really signed the. operating agreement.
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FILED: KINGS COUNTY CLERK 12/03/2024 11:44 AM INDEX NO. 528008/2024 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 12/03/2024
and thus is not bound by its terms.
'conclusions of Law
''It is firmly established that the public policy bf New
York State favors and iencourages arbitration and alterncJ.tive dispute resolution~" {Westinghouse Electric ·Corporation V. New York City Transit Authority~ 82 NY2d 47r 603 NYS2d 404 [1993], citing earlier authority). Arbitration has long been shown to be an e.ffective "means of conserving the time and resources of the courts and the contracting parties" (Matter of Nationwide General Insurance Company, 37 NY2d 91, 371 NYS2d 463 [1975]). The Court of Appeals noted that ''one way to encourage the use of the arbitration foi:urri ... would be to prevent parties to such agreements from using the courts as a vehicle to protrad't litigation'' as such conduct "has the effect of frustrating both the initial intent of the parties as well as legislative policy'' (id). Indeed, "New York Courts interfere as little as possible with the freedom of consenting parties to sObmit disputes to arbitration~' (Smith Barney· Shearson Inc. v. Sacharow, 91 NY2d 39, 666 NYS2d 990 [,1997] quoting, Matter of 166 Mamaroneck Ave. Corp. v .. 151 E, Post Rd. Corp,; 78 NY2d 88 [1991]).
It is further well settled that a party cannot be subject to arbitration abse.nt a a.le.at and uneqµivo.cal agreement to arbitrate (see, Waldron v. Goddess, 61 NY2d 181, 473 NYS2d 136 [1984]). Thu_s; where an. cirbitiatiori clause ericofupas:s.es all clisp1,1tes
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FILED: KINGS COUNTY CLERK 12/03/2024 11:44 AM INDEX NO. 528008/2024 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 12/03/2024
between the parties arid is unambiguous such arbitration clause will be enforcf;)d (Stoll America Knitting Machinery Inc .• v. Crea.ti ve Knitwear Corp., 5 AD3d 58 6; 772 NYS2d 863 [2d Dept., 2004 J) .
The respondent asserts that while he did sign a signature page and the petitioner also signed a signature page, the operating agreement that contains the arbitration clause was another agreement that was never signed by the respondent. The respondent states that "while we were meeting, Petitioner asked me to sign the Other Company's Operating Agreement. Rather than signing the same page and/or signing the same agreement, at Petitioner's suggestion, he printed out only what he said were the applic<1ble signature pages, and he signed his signature page and I signed my signature page. Also at Petitioner's suggestion, we then exchanged each other's signature pages only" (see,
Affirmation of Dr .. Salim Souid, '.lil 6 [NYSCEF Doc. No. 35] ) .
. .
However, rio such signature pages have been submitted for review. Indeed, the operating agreement submitted by the petitioner contains sixteen pages followed by a seventeenth page consisting of a table of membership interests. Page fifteen concludes with the words "Signature Page Follows" and page 16 is in fact a si.grtature page executed by both parties (see, Health Plu.s l'1C Lt,t Lirni ted Liabi 1 ity Company Operating. Agreement" (NY SCEF DbC. No ;, SJ). .J;urthe.r, each page of the agreement states that it is an:
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"Execution Copy'i:' (id) . Thus, there is no evidence of multiple signature pages ahd "a cobbled~together version of the agreement" (see, Affirmation of Dr. Salim Souid, '1[18 [NYSCEF Doc. No, 35]). Further, there is really no dispute an earlier version of a draft agreement was forwarded to the respondent in error and counsel for the respondent specifically pointed out that 'the wrong version had been sent. Counsel for the respondent emailed the petitioner and wrote "please re-execute the correct, and agreed-upon version (attached again) . Please note that the correct version is tit.led "EXECUTION COPY'' and this designation also appears in the header o.f the document. Orily executing this version will be effective" (see, Email sent .June 22, 2022 at 11:23 AM lNYSCEF Doc, No. 36]). Consequently, the only document presented for review in this case is the same document executed by both parties upon the advice of counsel. There is no basis to raise any questions there was neve·r a meeting of the minds regarding the agreement. Moreover, the mere fact some of the
other provisions of the agreement may have been ignored or violated does undermine its validity as a·whole.
Furthermore, the operating agreement states that "any claim arising in connection with or related to this Agreement or any breach hereof, or. otherwise the busin.ess of Company" shall be. heard by arbitrator enumerated within the ag.reement ( ~ ,
operating Agreement, C]ll2.2 [NY:SCEF Dcoc. No . .S]J'. The respondent argues that the disput.e
.
):letween the parties
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do.es not involve the
company that is the subject a f the ope.rating agreernenit . Rather,
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the dispute involves the management of ElNunu Medical P.C. a different entity entirely. However, the preliminary statement of the operating agreement fox Health Plus MD LLC specifically acknowledges the .respondent's ownership of E1Nuni.I Medical P.C; and s pee if i ca 11 y ex.cl ude s the re_sponden t' s work at three other locations. Thus, there are surely questions whether the agreement for Health Plus MD LLC somehow includesElNunµ P.C. The operating agreement does state that "this Agreement excludes use of the name ''El Nunu" other than. for billing pu.rposes, and otherwise to be used by Souid on an ongoing basis in connection with any of the above contexts" ( ~ , Operating Agreement, Prelimimuy Statement [NYSCEF Doc. No. 51). That exclusion may surely indicate that the respondent's practice is included within the operating agreement. The arbitrator can decide the extent to which that is true.
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