ALLESANDRO v. OLITSKY

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Supreme Court, Appellate Division, Second Department, New York.

Philip J. D'ALLESANDRO, et al., respondents, v. Myron OLITSKY, et al., appellants, et al., defendant.

Decided: September 27, 1999

MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, HOWARD MILLER and ROBERT W. SCHMIDT, JJ. Finder and Cuomo, LLP, New York, N.Y. (Matthew A. Cuomo and Anthony J. Pagliuca of counsel), for appellants.

In an action to recover damages for personal injuries, etc., the defendants Myron Olitsky and Rose Olitsky appeal from an order of the Supreme Court, Queens County (LeVine, J.), dated November 10, 1998, which granted the plaintiffs' motion to restore the action to the trial calendar and denied their cross motion to compel the plaintiffs to proceed to arbitration in accordance with an arbitration agreement.

ORDERED that the order is affirmed, without costs or disbursements.

Under the facts of this case, the plaintiffs' prior counsel lacked the apparent authority to execute an arbitration agreement on their behalf (see, Matter of Koss Co-Graphics v. Cohen, 166 A.D.2d 649, 561 N.Y.S.2d 76;  Melstein v. Schmid Labs., 116 A.D.2d 632, 497 N.Y.S.2d 482).   Therefore, the Supreme Court properly restored the action to the trial calendar and denied the defendants' cross motion to compel arbitration.

MEMORANDUM BY THE COURT.

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