I.S. v. Wnu, LLC

Opinion

I.S. v Wnu, LLC

2026 NY Slip Op 05045

August 19, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

I. S., etc., et al., respondents,

v

WNU, LLC, etc., appellant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 19, 2026

2025-02479, 2025-07851, (Index No. 621249/24)

Betsy Barros, J.P.

Valerie Brathwaite Nelson

Barry E. Warhit

Elena Goldberg Velazquez, JJ.

DAC Beachcroft LLP, New York, NY (Matthew E. Rayburn and Michael J. Frimet of counsel), for appellant.

Jaghab & Jaghab, P.C., Mineola, NY (Bret G. Kaufman of counsel), for respondents.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant appeals from (1) an order of the Supreme Court, Suffolk County (Paul M. Hensley, J.), dated January 14, 2025, and (2) an order of the same court dated June 17, 2025. The order dated January 14, 2025, denied the defendant's motion to compel arbitration and to stay the action. The order dated June 17, 2025, denied the defendant's motion for leave to renew its prior motion to compel arbitration and to stay the action.

ORDERED that the orders are affirmed, with one bill of costs.

On May 6, 2023, the plaintiff I. S. (hereinafter the infant plaintiff) allegedly was injured at the defendant's trampoline and adventure park. In August 2024, the infant plaintiff, by her mother and natural guardian, and her mother suing derivatively, commenced this action, inter alia, to recover damages for personal injuries. The defendant moved to compel arbitration and to stay the action pending arbitration. In support of its motion, the defendant submitted two release and indemnification agreements allegedly executed on April 21, 2022, and December 3, 2022, which purported to release the defendant from liability and contained an arbitration clause. The plaintiffs opposed the motion, contending that the defendant did not submit a release and indemnification agreement that was executed on the day of the accident and, thus, there was no agreement to arbitrate this dispute. In an order dated January 14, 2025, the Supreme Court denied the defendant's motion to compel arbitration and to stay the action.

In May 2025, the defendant moved for leave to renew its prior motion to compel arbitration and to stay the action. In an order dated June 17, 2025, the Supreme Court denied the motion for leave to renew. The defendant appeals from both orders.

"A party seeking to compel arbitration must establish the existence of a valid agreement to arbitrate" (Wolf v Hollis Operating Co., LLC, 211 AD3d 769, 770 [internal quotation marks omitted]; see Giffone v Berlerro Group, LLC, 163 AD3d 780, 780). "'The agreement must be clear, explicit and unequivocal and must not depend upon implication or subtlety'" (Ferarro v East Coast Dormer, Inc., 209 AD3d 717, 718, quoting Matter of Waldron [Goddess], 61 NY2d 181, [*2]183-184).

Here, the defendant failed to affirmatively establish that the parties entered into an explicit and unequivocal agreement to arbitrate their dispute arising from the May 6, 2023 accident (see DiGregorio v Long Is. Univ., 221 AD3d 780, 781; Giffone v Berlerro Group, LLC, 163 AD3d at 780). Thus, the plaintiffs cannot be compelled to submit to arbitration (see Matter of Town of Mount Pleasant v JJC Constr. Corp., 35 AD3d 869, 870).

Moreover, the Supreme Court providently exercised its discretion in denying the defendant's motion for leave to renew its prior motion to compel arbitration and to stay the action. "A motion for leave to renew . . . shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (id. § 2221[e][3]). Here, the defendant failed to demonstrate that newly submitted evidence would have changed the prior determination (see Green v Hyacinth Green Irrevocable Living Trust, 240 AD3d 485, 485; Cullin v Lynch, 148 AD3d 670, 670).

The defendant's remaining contention is without merit.

BARROS, J.P., BRATHWAITE NELSON, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court