Wolfman v. Herbstritt

Appellate Division of the Supreme Court of New York

Wolfman v. Herbstritt

114 A.D.2d 955, 495 N.Y.S.2d 220, 1985 N.Y. App. Div. LEXIS 53993

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 18, 1985

StatusPublished

This text of 114 A.D.2d 955 (Wolfman v. Herbstritt) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wolfman v. Herbstritt, 114 A.D.2d 955, 495 N.Y.S.2d 220, 1985 N.Y. App. Div. LEXIS 53993 (N.Y. Ct. App. 1985).

Pincite

Opinion

—In a medical malpractice action, defendant appeals from an order of the Supreme Court, Nassau County (Morrison, J.), dated May 16, 1983, which denied his application for a stay of the proceedings pending submission of the matter to arbitration.

Order affirmed, with costs.

Defendant seeks enforcement of two arbitration agreements signed by plaintiff Loretta Wolfman prior to surgery he performed on her. The agreements lack mutuality of consideration since defendant’s only conceivable action against her, i.e., for fees, is specifically exempted from resolution by arbitration (Miner v Walden, 101 Misc 2d 814). The agreements are, therefore, unenforceable (see, Dwyer v Biddle, 274 App Div 903). An earlier agreement signed by Mrs. Wolfman is also invalid for its failure to inform her that by agreeing to submit any disputes except for fees to arbitration she was waiving her right to a trial by Judge or jury (see, Sanchez v Sirmons, 121 Misc 2d 249). O’Connor, J. P., Niehoff, Lawrence and Hooper, JJ., concur.

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—In a medical malpractice action, defendant appeals from an order of the Supreme Court, Nassau County (Morrison, J.), dated May 16, 1983, which denied his application for a stay of the proceedings pending submission of the matter to arbitration.

Order affirmed, with costs.

Defendant seeks enforcement of two arbitration agreements signed by plaintiff Loretta Wolfman prior to surgery he performed on her. The agreements lack mutuality of consideration since defendant’s only conceivable action against her, i.e., for fees, is specifically exempted from resolution by arbitration (Miner v Walden, 101 Misc 2d 814). The agreements are, therefore, unenforceable (see, Dwyer v Biddle, 274 App Div 903). An earlier agreement signed by Mrs. Wolfman is also invalid for its failure to inform her that by agreeing to submit any disputes except for fees to arbitration she was waiving her right to a trial by Judge or jury (see, Sanchez v Sirmons, 121 Misc 2d 249). O’Connor, J. P., Niehoff, Lawrence and Hooper, JJ., concur.

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Bluebook (online)

114 A.D.2d 955, 495 N.Y.S.2d 220, 1985 N.Y. App. Div. LEXIS 53993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolfman-v-herbstritt-nyappdiv-1985.

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