Opinion
14824 & M–03633 Index No. 158735/19 Case No. 2021–01097
12-09-2021
Jane SCHINDLER, Plaintiff–Appellant, v. CELLCO PARTNERSHIP doing business as Verizon Wireless, Defendant–Respondent, John/Jane Doe Nos. 1 through 3, etc., Defendant.
Hantman & Associates, New York (Robert J. Hantman of counsel), for appellant. Lowenstein Sandler LLP, New York (Gavin J. Rooney of counsel), for respondent.
Hantman & Associates, New York (Robert J. Hantman of counsel), for appellant.
Lowenstein Sandler LLP, New York (Gavin J. Rooney of counsel), for respondent.
Kapnick, J.P., Moulton, Gonza´lez, Rodriguez, Pitt, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered September 21, 2020, which, to the extent appealed from as limited by the briefs, granted the motion of defendant Cellco Partnership doing business as Verizon Wireless to compel arbitration, unanimously affirmed, without costs.
The sole issue before this Court is whether the issue of arbitrability was properly delegated to the arbitrator. We find that it was. The record supports a conclusion that plaintiff was a Verizon Wireless customer, and that she voluntarily accepted the terms of the Verizon Customer Agreement and the arbitration provision contained within it. While there is generally a presumption that the issue of arbitrability will be determined by the courts, the arbitrator decides the issue where the parties evince a "clear and unmistakable agreement to arbitrate arbitrability as part of their alternative dispute resolution choice" ( Matter of Smith Barney Shearson Inc. v. Sacharow, 91 N.Y.2d 39, 46, 666 N.Y.S.2d 990, 689 N.E.2d 884 [1997] [internal quotation marks omitted]). The parties did, in fact, make that agreement, since the AAA rules were incorporated into the parties’ arbitration provision ( Anima Group, LLC v. Emerald Expositions, LLC, 191 A.D.3d 572, 573, 138 N.Y.S.3d 858 [1st Dept. 2021] ; Life Receivables Trust v. Goshawk Syndicate 102 at Lloyd's, 66 A.D.3d 495, 496, 888 N.Y.S.2d 458 [1st Dept. 2009], affd 14 N.Y.3d 850, 901 N.Y.S.2d 133, 927 N.E.2d 553 [2010] ).
We have considered the parties’ remaining contentions and find them unavailing.
Motion for a stay of arbitration pending appeal, denied, as academic.