Jeffrey E Auer, Claimant(s) v. Fabio Taliercio, Defendant(s) (2026)

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Plaintiff's Notice of Motion/Affidavit 1

Defendant's Notice of Cross-Motion/Affirmation in Support And in Opposition to Motion & Exhibits 2

Plaintiff's Opposition to Cross-Motion to Dismiss 3

Upon the foregoing cited papers, the Decision/ Order on defendant's motion to compel arbitration is as follows:

Claimant ("Plaintiff"), a freelance actor, brought this case against his former manager, Taliercio, seeking refund of the amount he paid to his agent on the basis that his agent is the manager's alter ego. In order words, he claims that because his manager is the same person masquerading as his agent, he has been making double commission payments to the manager (who disguised as also the agent). He specifically alleges that his supposed agent, Robert Murrell, was his manager's romantic partner residing in the same apartment and pretending to be his agent.

Plaintiff further alleges that Mr. Murrell passed away in March of 2020, but that he (plaintiff) continued to send the agency payments to Mr. Murrell, who was a strawman, through an online system set up by his manager, the defendant, until February of 2025 when he terminated defendant as his manager. Basically, plaintiff is arguing that defendant set up a scheme to make him pay commission on each job, twice. Now he wants to recover those excess payments from the defendant.

In this small claims matter, wherein plaintiff is seeking damages in the amount of $6,000, defendant moves to compel arbitration, asserting that the agreement between the actor (plaintiff) and his agent (defendant) dictates that any dispute be resolved through AAA arbitration mechanism.

Plaintiff opposes the motion, arguing that the motion was brought late into the case, that defendant's intentions are to delay and frustrate his efforts. He further argues that the cost of arbitration would work injustice on him and prejudices his ability to properly litigate the case.

The court is very mindful that this is a small claims action having filing fee of $20. The court is also mindful that perhaps plaintiff chose this forum to bring this case because of the amount involved and probably because it costs only $20 to litigate here. The court agrees with plaintiff that AAA arbitration fees could exceed/subsume the entire amount sued here, as argued in plaintiff's opposition papers. Finally, this court is mindful that there is a free arbitration service within this court system.

Pursuing arbitration should not be used as a sword to frustrate the purpose of this lawsuit, nor should it be used as a shield to avoid prosecution. This case commenced July 31, 2025, and defendant fully participated in litigating this case until February 26, 2026, when he moved to compel arbitration. In fact, on January 2, 2026, the case was referred to mediation, with defendant agreeing to it without objection, and without asking for arbitration at the time.

During oral argument, defendants stated that he would share the arbitration bill 50/50 with plaintiff, however, plaintiff continued to object to paying half the costs/fees of such arbitration proceedings. Plaintiff further lamented defendant's tactics in making this motion after almost one year of participating in litigating this case, and at least two appearances prior to moving to compel arbitration. This is a Small Claims court wherein cases are sometimes resolved on the first day of court. Small Claims matters do not comport well with AAA arbitration for several reasons, including but not limited to Costs/Fees involved and resolution timeframe.

The law is clear that the court shall direct arbitration where the parties agreed to it and where there is no substantial question whether a valid agreement was made or complied with. See CPLR 7503[a]. However, a defendant may lose the right to arbitration by his/her actions, including but not limited to utilizing the tools of litigation, or participates in litigation for an unreasonable period without asserting the right to arbitrate. See Byrnes v. Castaldi, 72 AD.3d 718, 898 N.Y.S.2d 640 (2nd Dept 2010). See also Estate of Castellone v. JP Morgan Chase Bank, N.A., 60 AD3d 621, 623, 875 N.Y.S.2d 130 (2nd Dept 2009); Sherrill v. Grayco Bldrs., 64 NY2d 261, 486 N.Y.S.2d 159 (2nd Dept 1985).

"Generally, when addressing [arbitration] waiver, courts should consider the amount of litigation that has occurred, the length of time between the start of the litigation and the arbitration request, and whether prejudice has been established" Cusimano v Schnurr, 26 NY3d 391, 23 N.Y.S.3d 137 [2015] (citing Leadertex, Inc. v. Morganton Dyeing & Finishing Corp., 67 F.3d 20, 25 [2d Cir.1995]).

In Louisiana Stadium & Exposition Dist. v. Merrill Lynch, Pierce, Fenner & Smith Inc., 626 F.3d 156 (2d Cir.2010), the court recognized two types of prejudice: substantive prejudice and prejudice due to excessive cost and time delay.

In the case at bar, granting the motion to compel arbitration would expose this Small Claims litigant to costs/fees well beyond Small Claims litigation cost. Clearly, the prejudice to plaintiff in economic terms is substantial, considering that this is a Small Claims matter, especially as AAA arbitration costs/fee could run into thousands of Dollars. Nor is defendant prejudiced if the court decides to keep and resolve the matter.

Further, defendant has litigated this case for about Nine (9) months and appeared in court on at least two other occasion before moving to compel arbitration, which is a lot of litigation for a Small Claims matter. Defendant did not move in a timely manner to compel arbitration. This Small Claims matter is likely to be tried/resolved on the next court appearance date, thus dismissing it in favor of arbitration at this stage would unnecessarily prolong the litigation, which would be a disservice to both parties. "The proximity of a trial date when arbitration is sought is also relevant" Leadertex, Inc., supra (citing Com-Tech Assocs. v. Computer Assocs. Int'l, Inc., 938 F.2d 1574, 1576-77 (2nd Cir. 1991).

For the reasons stated hereinabove and in the interest of justice and equity, this motion to compel arbitration must be DENIED.

Date: 06/23/2026

Hon. Chidi A. Eze

Civil Court Judge (NYC)

Chidi A. Eze, J.