Mukamal v. Marcum LLP, 223 So. 3d 422

Barry Mukamal was a partner at Rachlin LLP; Rachlin merged into Marcum LLP in 2009 and Mukamal became a Marcum partner.
Mukamal signed: (1) Marcum’s 2002 partnership agreement (contains broad arbitration clause), (2) a rider to that agreement (governing law New York; incorporates arbitration via §19.5), and (3) an addendum to the rider (amends specific provisions, governed by New York law, but contains no arbitration clause).
Mukamal later discovered undisclosed pre-merger payments, altered bonus practices, and other conduct he alleges amounted to fraud; he resigned and filed both a court suit for fraud and an arbitration claim for breach of the partnership agreements.
Marcum moved to compel arbitration and stay the fraud suit based on the arbitration clauses in the 2002 agreement and rider; the trial court granted the motion and stayed the case.
Mukamal appealed only the trial court’s ruling that the absence of an arbitration clause in the addendum did not show an intent to abandon arbitration; he argued the omission created ambiguity requiring a parole-evidence hearing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether omission of arbitration clause from the addendum evinces intent to forgo arbitration	Omission created ambiguity and, as the parties’ final writing, shows intent to abandon arbitration	Addendum did not amend or repeal the rider’s arbitration clause; contemporaneous writings should be read together and silence is not a clear manifestation to abandon arbitration	Court held addendum did not evince intent to abandon arbitration; arbitration survives and case was properly stayed
Whether an evidentiary (parol-evidence) hearing was required to resolve ambiguous intent to arbitrate	Mukamal requested a hearing to admit parol evidence (e.g., earlier drafts) to show intent	Defendants argued agreements are read together under NY law and no clear intent appears; no hearing needed	Court held no hearing required because agreements are contemporaneous writings read together and silence does not negate arbitration absent clear manifestation

Primex Int’l Corp. v. Wal-Mart Stores, Inc., 679 N.E.2d 624 (N.Y. 1997) (a subsequent agreement must clearly manifest intent to abandon an earlier arbitration clause; silence or general merger clauses are insufficient)
Applied Energetics, Inc. v. NewOak Capital Markets, LLC, 645 F.3d 522 (2d Cir. 2011) (subsequent contract language that directly conflicts with and specifies adjudication in court may preclude arbitration)
Gadelkareem v. Blackbook Capital LLC, 46 Misc. 3d 149 (N.Y. App. Term 2015) (choice-of-law or forum provisions in a later agreement that contain no express denial of arbitration do not negate an earlier arbitration agreement)
PETRA CRE 2007-1 CDO, Ltd. v. Morgans Grp. LLC, 923 N.Y.S.2d 487 (N.Y. App. Div. 2011) (contemporaneous writings on the same subject are read together as one agreement)
Roth v. Cohen, 941 So. 2d 496 (Fla. 3d DCA 2006) (standard of review for orders granting or denying motions to compel arbitration is de novo)