The opinion
Halperin v Souid
2024 NY Slip Op 34264(U)
December 3, 2024
Supreme Court, Kings County
Docket Number: Index No. 528008/2024
Judge: Leon Ruchelsman
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
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publication.
FILED: KINGS COUNTY CLERK 12/03/2024 11:44 AM INDEX NO. 528008/2024
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 12/03/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS: CIVIL TERM: COMMERCIAL$
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PINCHAS ,HALPERIN,
Petitioner beqision and order
- against - Index No. 528008/2024
QR. SALIM SOUID,
Respondent, December 3, 2024
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PRESENT: HON. LEON RUCHELSMAN Motion Seq. #1
The petitioner has moved CPLR §7503 seeking to compel
arbitration. The respondent has opposed the motion. Papers were
submitted by the parties and arguments were beld. After
reviewing all the arguments, this court how rnakesthe following
determination.
On June 15, 2022 the respondent executed an operating
agreement whereby he agreed to become the medical director of a
medical facility called Health Plus MD LLC. The petition alleges
that in July 2024 the respondent violated the operating agreement
by assuming management 0 uthority not permitted pursuant to the
ag:teemen t . This included, essentially, l ockin:g the peti t.i oner
out of the business in all respects. Pursuant to Article 12,2 of
the operating agreement the petitioner demanded arbitration
before th,e arbitrator specifically delineated within the
operating a'greement. The respondent refused to participate with
tna t a rbi t.rator and this motion has t1ow .been f i ied. T.he
petitior:rer se.eks to compel .arbitration. The respondent opposes
the. motion arguing he never really signed the. operating agreement.
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and thus is not bound by its terms.
'conclusions of Law
''It is firmly established that the public policy bf New
York State favors and iencourages arbitration and alterncJ.tive
dispute resolution~" {Westinghouse Electric ·Corporation V. New
York City Transit Authority~ 82 NY2d 47r 603 NYS2d 404 [1993],
citing earlier authority). Arbitration has long been shown to be
an e.ffective "means of conserving the time and resources of the
courts and the contracting parties" (Matter of Nationwide General
Insurance Company, 37 NY2d 91, 371 NYS2d 463 [1975]). The Court
of Appeals noted that ''one way to encourage the use of the
arbitration foi:urri ... would be to prevent parties to such
agreements from using the courts as a vehicle to protrad't
litigation'' as such conduct "has the effect of frustrating both
the initial intent of the parties as well as legislative policy''
(id). Indeed, "New York Courts interfere as little as possible
with the freedom of consenting parties to sObmit disputes to
arbitration~' (Smith Barney· Shearson Inc. v. Sacharow, 91 NY2d 39,
666 NYS2d 990 [,1997] quoting, Matter of 166 Mamaroneck Ave. Corp.
v .. 151 E, Post Rd. Corp,; 78 NY2d 88 [1991]).
It is further well settled that a party cannot be subject to
arbitration abse.nt a a.le.at and uneqµivo.cal agreement to arbitrate
(see, Waldron v. Goddess, 61 NY2d 181, 473 NYS2d 136 [1984]).
Thu_s; where an. cirbitiatiori clause ericofupas:s.es all clisp1,1tes
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between the parties arid is unambiguous such arbitration clause
will be enforcf;)d (Stoll America Knitting Machinery Inc .• v.
Crea.ti ve Knitwear Corp., 5 AD3d 58 6; 772 NYS2d 863 [2d Dept.,
2004 J) .
The respondent asserts that while he did sign a signature
page and the petitioner also signed a signature page, the
operating agreement that contains the arbitration clause was
another agreement that was never signed by the respondent. The
respondent states that "while we were meeting, Petitioner asked
me to sign the Other Company's Operating Agreement. Rather than
signing the same page and/or signing the same agreement, at
Petitioner's suggestion, he printed out only what he said were
the applic<1ble signature pages, and he signed his signature page
and I signed my signature page. Also at Petitioner's suggestion,
we then exchanged each other's signature pages only" (see,
Affirmation of Dr .. Salim Souid, '.lil 6 [NYSCEF Doc. No. 35] ) .
. .
However, rio such signature pages have been submitted for review.
Indeed, the operating agreement submitted by the petitioner
contains sixteen pages followed by a seventeenth page consisting
of a table of membership interests. Page fifteen concludes with
the words "Signature Page Follows" and page 16 is in fact a
si.grtature page executed by both parties (see, Health Plu.s l'1C Lt,t
Lirni ted Liabi 1 ity Company Operating. Agreement" (NY SCEF DbC. No ;,
SJ). .J;urthe.r, each page of the agreement states that it is an:
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"Execution Copy'i:' (id) . Thus, there is no evidence of multiple
signature pages ahd "a cobbled~together version of the agreement"
(see, Affirmation of Dr. Salim Souid, '1[18 [NYSCEF Doc. No, 35]).
Further, there is really no dispute an earlier version of a draft
agreement was forwarded to the respondent in error and counsel
for the respondent specifically pointed out that 'the wrong
version had been sent. Counsel for the respondent emailed the
petitioner and wrote "please re-execute the correct, and
agreed-upon version (attached again) . Please note that the
correct version is tit.led "EXECUTION COPY'' and this designation
also appears in the header o.f the document. Orily executing this
version will be effective" (see, Email sent .June 22, 2022 at
11:23 AM lNYSCEF Doc, No. 36]). Consequently, the only document
presented for review in this case is the same document executed
by both parties upon the advice of counsel. There is no basis to
raise any questions there was neve·r a meeting of the minds
regarding the agreement. Moreover, the mere fact some of the
other provisions of the agreement may have been ignored or
violated does undermine its validity as a·whole.
Furthermore, the operating agreement states that "any claim
arising in connection with or related to this Agreement or any
breach hereof, or. otherwise the busin.ess of Company" shall be.
heard by arbitrator enumerated within the ag.reement ( ~ ,
operating Agreement, C]ll2.2 [NY:SCEF Dcoc. No . .S]J'. The respondent
argues that the disput.e
.
):letween the parties
.
do.es not involve the
company that is the subject a f the ope.rating agreernenit . Rather,
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the dispute involves the management of ElNunu Medical P.C. a
different entity entirely. However, the preliminary statement of
the operating agreement fox Health Plus MD LLC specifically
acknowledges the .respondent's ownership of E1Nuni.I Medical P.C;
and s pee if i ca 11 y ex.cl ude s the re_sponden t' s work at three other
locations. Thus, there are surely questions whether the
agreement for Health Plus MD LLC somehow includesElNunµ P.C.
The operating agreement does state that "this Agreement excludes
use of the name ''El Nunu" other than. for billing pu.rposes, and
otherwise to be used by Souid on an ongoing basis in connection
with any of the above contexts" ( ~ , Operating Agreement,
Prelimimuy Statement [NYSCEF Doc. No. 51). That exclusion may
surely indicate that the respondent's practice is included within
the operating agreement. The arbitrator can decide the extent to
which that is true.
Therefore, based ori the foregoing-., the motion seeking to
compel arbitration pursuant to the terms of the operating
.agreement is granted.
Considering this guidance any request for sanctions at this
time is not corisidered, The petitioner may move f.or sanctions
not before thirty days from receipt of this order if any non-
compliartce with this decision is alleged:
So ordered.
ENTER:
bated: December 3, .2024
Brooklyn, N..Y. Hon. Leon Ruche1$man
JSC
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