Matter of Howard B. Spivak Architect P.C. v Northside Tower Realty LLC

[*1] Matter of Howard B. Spivak Architect P.C. v Northside Tower Realty LLC 2006 NY Slip Op 51816(U) [13 Misc 3d 1213(A)] Decided on June 7, 2006 Supreme Court, New York County Tejada, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 7, 2006
Supreme Court, New York County

In the Matter of the Application of Howard B. Spivak Architect, P.C., Petitioner, For an Order Pursuant to Article 75 of the CPLR Staying the Arbitration Demanded by Respondent

against

Northside Tower Realty, LLC, Respondent.



105114/05

Charles J. Tejada, J.

Upon the foregoing papers, it is ordered that the petition to stay arbitration pursuant to CPLR § 7503(b) is granted.

In the case at bar, the petitioner seeks to permanently stay arbitration on the grounds that the parties never agreed to arbitrate. Petitioner argues that because he specifically requested that the portion of the agreement under paragraph 1.3.5.1 and directly related to arbitration be edited by changing the word "shall" to the word "may", that, in effect, made arbitration an option and not mandated as argued by respondents.

Respondent cross moves for an order of dismissal pursuant to CPLR § 3211 and argues that petitioner completely ignored the balance of the provisions of the agreement with respect to arbitration and as such, the mandatory arbitration clause was still valid and enforceable.

"One of the fundamental rules respecting the specific performance of contracts is that performance will not be decreed where the contract is not certain in its terms." Siclen v. Mather, 235 NYS 589, 591. "The terms must not be ambiguous, so that either party may reasonably misunderstand them, or so obscure or self contradictory that the courts cannot interpret them. rule of contract construction calls upon this Court to interpret any ambiguity against the drafters of the amendment." Id.

In this case, the parties entered into a written agreement titled "Standard Form of Agreement Between the Owner and Architect with Standard Form of Architect's Services" ("Agreement"), wherein the petitioner agreed to provide architectural services on behalf of respondent for the construction of a new residential building. In executing the agreement, petitioner requested that paragraph 1.3.5.1, under the section titled "Arbitration", be amended. The amendment to the relevant portion of paragraph 1.3.5.1 states: "Any claim, dispute or other matter in question arising out of or related to this Agreement May(delete shall) be subject to arbitration."

The request by petitioner to change the word "shall" to the word "may" in the initial [*2]paragraph under the heading tiled Arbitration created an option for the parties to proceed to arbitration. This amendment to the arbitration component of the agreement was accepted and signed by both parties. Respondents argument, that because only the first paragraph of the agreement relating to arbitration was amended and since the following paragraphs relating to arbitration were not amended that any doubt as to the meaning of the agreement must be resolved in favor of arbitration, is disingenuous.

The paragraphs following paragraphs 1.3.5.1 relate and dealt with incidental arbitration issues involving mediation (1.3.5.2), timing for the demand for arbitration (1.3.5.3), the parties that can be joined in the arbitration(1.3.5.4) and the finality in the arbitration award (1.3.5.5).

It is well settled that 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 the parties expressly agreed to arbitrate their disputes." ( Schubtex, Inc. v Allen Snyder, Inc., 49 NY2d 1, 6; see, also, Matter of Marlene Inds. Corp. [ Carnac Textiles], 45 NY2d 327, 333-334.) The agreement must be clear, explicit and unequivocal (Matter of Acting Supt. of Schools[United Liverpool Faculty Assn.], 42 NY2d 509, 512; Matter of Lehman v Ostrovsky, 264 NY 130, 132) and must not depend upon implication or subtlety (Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 NY 288, 291; Matter of Doughboy Inds. [Pantasote Co.], 17 AD2d 216, 220 [Breitel, J.]).

Consequently, this Court finds that the issue here should be decided against arbitration.

Respondent's cross motion to dismiss is denied.

Dated: June 7, 2006ENTER:

J.S.C.