MBAYE v. JP MORGAN CHASE BANK (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Denise N. Johnson, J.), dated April 8, 2025.  The order granted the defendants' motion pursuant to CPLR 7503(a) to compel arbitration and to stay the action pending arbitration and held in abeyance the plaintiff's motion for leave to enter a default judgment against the defendants.

ORDERED that the appeal from so much of the order as held in abeyance the plaintiff's motion for leave to enter a default judgment against the defendants is dismissed;  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

In November 2024, the plaintiff commenced this action, inter alia, to recover damages for breach of contract arising out of certain transactions from a brokerage account that the plaintiff held at the defendants' financial institution.  In December 2024, the defendants moved pursuant to CPLR 7503(a) to compel arbitration and to stay the action pending arbitration.  The plaintiff moved for leave to enter a default judgment against the defendants.  In an order dated April 8, 2025, the Supreme Court granted the defendants' motion and held the plaintiff's motion in abeyance.  The plaintiff appeals.

The appeal from so much of the order as held in abeyance the plaintiff's motion for leave to enter a default judgment against the defendants must be dismissed as no appeal lies as of right from an order which directs a hearing to aid in the disposition of a motion, an order holding a motion in abeyance, or an order entered sua sponte (see CPLR 5701[a][2];  GMAC Mtge., LLC v. Yun, 206 AD3d 796, 796;  Evan S. v. Joseph R., 70 AD3d 668, 668–669), and leave to appeal has not been granted.

“A party seeking to compel arbitration must establish ‘the existence of a valid agreement to arbitrate’ ” (DiGregorio v. Long Is. Univ., 221 AD3d 780, 781 [internal quotation marks omitted], quoting Wolf v. Hollis Operating Co., LLC, 211 AD3d 769, 770).  “ ‘[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 [he or she] expressly agreed to arbitrate the[ ] dispute[ ]’ at issue” (Matter of Mirzakandov v. Mazal U Bracha, LLC, 216 AD3d 966, 967, quoting Ferraro v. East Coast Dormer, Inc., 209 AD3d 717, 718).

Here, the defendants established that the plaintiff signed an application agreement for the brokerage account, which incorporated by reference a brokerage account agreement, specifically including the “provisions requiring and governing arbitration” contained therein.  The defendants further established a clear, explicit, and unequivocal agreement to arbitrate by submitting a copy of the brokerage account agreement wherein the plaintiff agreed that all controversies arising out of the brokerage account and other agreements between the parties shall be resolved through arbitration (see Cipri v. Matrix Sports Club, LLC, 249 AD3d 832;  Sutphin Retail One, LLC v Sutphin Airtrain Realty, LLC, 143 AD3d 972, 974).

Accordingly, the Supreme Court properly granted the defendants' motion pursuant to CPLR 7503(a) to compel arbitration and to stay the action pending arbitration.

The plaintiff's remaining contention is without merit.

DUFFY, J.P., CHRISTOPHER, LANDICINO and LOVE, JJ., concur.