Muhammad E. Milhouse, Plaintiff–Respondent, v. GMRI

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Supreme Court, Appellate Division, First Department.

Muhammad E. Milhouse, Plaintiff–Respondent, v. GMRI, Inc. doing business as Olive Garden, Defendant–Appellant.

1285N

Decided: December 29, 2016

Friedman, J.P., Acosta, Saxe, Gische, Webber, JJ. Littler Mendelson, P.C., New York (George B. Pauta of counsel), for appellant. Phillips & Associates, PLLC, New York (Jesse C. Rose of counsel), for respondent.

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Order, Supreme Court, New York County (Donna M. Mills, J.), entered August 31, 2015, which, insofar as appealed from as limited by the briefs, denied defendant's cross motion pursuant to CPLR 7503(a) to stay the action and compel arbitration, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff agreed to be bound by the terms of defendant's Dispute Resolution Process (DRP), which provides for binding arbitration in lieu of litigation.  This agreement was formed via email correspondence between the parties' counsel in June and July of 2014 (see J. Randazzo, Inc. v. Sea Fresh, 246 A.D.2d 513, 513 [2d Dept 1998], lv denied 92 N.Y.2d 829 [1998] ).  Plaintiff contends that his acceptance of defendant's June 2014 offer to pay for mediation costs in exchange for agreeing to be bound by the DRP was conditioned on several events that never occurred.  However, this contention is not supported by the record.

Nor did plaintiff validly rescind the agreement.  Plaintiff sent mixed signals regarding his continued intention to arbitrate after defendant determined not to use the first mediator agreed upon by the parties.  Even assuming plaintiff expressed an unambiguous intent to revoke the agreement, the dismissal of the first mediator selected was not a sufficient ground for revocation (see Babylon Assoc. v. County of Suffolk, 101 A.D.2d 207, 215 [2d Dept 1984] [rescission appropriate upon showing of “a breach in the contract which substantially defeats the purpose thereof”] ).  The selection of a particular mediator was not an express condition to the agreement, nor is there any indication that the first mediator selected was uniquely qualified or that plaintiff would have been unwilling to move forward with a different mediator—indeed, the parties ultimately agreed on another mediator, who was also suggested by plaintiff's counsel.

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CLERK