Mendel Zilberberg & Associates, P.C. v. Rosner

292 A.D.2d 533, 739 N.Y.S.2d 285, 2002 N.Y. App. Div. LEXIS 3064

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 2002
• Status: Published

Opinion

In a proceeding to compel arbitration pursuant to CPLR 7503, the petitioners appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Pincus, J.), dated April 18, 2001, as denied their petition.

Ordered that the order is affirmed insofar as appealed from, with costs.

It is well settled that “a party will not be compelled to arbitrate and, thereby, to surrender the right to resort to the courts, absent ‘evidence which affirmatively establishes that the parties expressly agreed to arbitrate their disputes’ ” (Matter of Waldron [Goddess], 61 NY2d 181, 183, quoting Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1, 6; see, Matter of Sullivan County Radiological Assoc. v Greene, 254 AD2d 425). The agreement to arbitrate must be clear, explicit, and unequivocal (see, Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509, 512; Matter of Ohr Torah Inst. [Mikhailov], 276 AD2d 634). The petitioners failed to affirmatively establish that the parties entered into an explicit and unequivocal agreement to arbitrate their dispute (see, Matter of Ohr Torah Inst. [Mikhailov], supra; Matter of Sullivan County Radiological Assoc. v Greene, supra). Thus, the respondent cannot be compelled to submit to arbitration (see, Matter of Town of Mamaroneck v Byron Elec. Co., 148 AD2d 458, 459). S. Miller, J.P., Krausman, H. Miller and Adams, JJ., concur.