93 A.D.2d 706 | N.Y. App. Div. | 1983
Lead Opinion
— Order and judgment, Supreme Court, New York County (Blyn, J.), entered October 14,1982, denying the petition to stay arbitration, dismissing the proceeding and granting the cross motion to compel the parties to proceed to arbitration before the American Arbitration Association, affirmed, without costs, for the reasons stated by Justice Blyn at Special Term. In addition, we make the following observations. The operative facts, fairly set forth in the dissent, reflect that both parties, real estate brokers employed by Cross & Brown, had agreed to submit to binding arbitration any dispute concerning the entitlement of the parties to a brokerage commission except that Goddess’ contract had expired. The employment agreements contain substantially similar provisions dealing with arbitration of disputes and direct that any dispute as to commissions is to be submitted to arbitration, either through an internal panel before three senior officers of Cross & Brown, provided both parties agreed to the resolution of the dispute by that internal mechanism or, if they fail to so agree, before the American
Dissenting Opinion
This is an appeal from a dismissal of a petition to stay arbitration sought on the ground of lack of an agreement to arbitrate. The underlying dispute between petitioner Robert Waldron and respondent Lynn Goddess, both of whom are real estate brokers employed by Cross & Brown Company, concerns the right to a brokerage commission earned in connection with a lease negotiated through Cross & Brown. Each claims entitlement to the real estate broker’s share of the commission. Both Waldron and Goddess had written employment contracts with Cross & Brown. Goddess’ contract contained the following arbitration clause: “The employee agrees that in the event of an irreconcilable commission dispute, or other dispute between himself and another employee(s), to have such dispute arbitrated and settled by one of the following two bodies: (a) the American Arbitration Association in the Borough of Manhattan, or (b) an impartial panel of three of the employer’s senior officers, whose membership shall be determined by the disputants. If accord cannot be reached as to the method of arbitration, then selection will default to the American Arbitration Association.” Waldron’s contract contained a somewhat similar provision. While Waldron’s employment contract was in effect at all relevant times, Goddess’ contract expired on December 28, 1979, and in 1980 she rejected Cross & Brown’s offer of a new written contract. The commission dispute between Goddess and Waldron did not arise until at the earliest April, 1981, approximately 15 months after the expiration of Goddess’ employment contract. When Goddess served a demand for arbitration before the American Arbitration Association Waldron commenced this proceeding. In dismissing the petition and granting Goddess’ cross motion to compel arbitration, Special Term found that Waldron and Goddess had agreed in separate contracts of employment to arbitrate commission disputes with other real estate brokers employed by Cross & Brown. To reach this determination Special Term ruled that although Goddess’ contract contained an expiration date of December 28, 1979, both Goddess and Cross & Brown had, by their conduct, extended her contract so that it, along with the arbitration clause contained therein, was in éffect both at the time the underlying dispute arose