Defendant, Gomez Associates, Inc. ("Gomez"), moves to stay the prosecution of this action and to compel arbitration.

By written agreement dated August 15, 2001, Plaintiffs, James Neisloss and Alison Neisloss (collectively "Neisloss"), retained Gomez to preform design services in connection with their residence in Locust Valley. Gomez was to select and install furniture, fixtures, furnishings and perform custom design work in Neisloss home.

Paragraph IX of the agreement states:

"In the event of any dispute between the parties arising out of the Work," either party may refer said dispute to arbitration in New York City in accordance with the rules of American Arbitration Association."

Neisloss allege Gomez breached the contract, and they seek to recover damages arising from that alleged breach.

Gomez served an answer dated December 4, 2006 which denied the allegations made in the complaint and which asserted as an affirmative defense that the dispute should be submitted to arbitration pursuant to the agreement. Neisloss served a Demand for a Preliminary Conference. Before the Preliminary Conference was held, Gomez moved to stay this action and compel arbitration.

A party will not be compelled to arbitrate unless the evidence establishes a clear, explicit and unequivocal agreement to resolve disputes through arbitration. God's Battalion of Prayer Pentecostal Church, Inc. v. Miele Assocs., LLP, 6 NY3d 371 (2006); and Riverside Capital Advisors, Inc. v. Winchester Global Trust Co., Ltd., 21 AD3d 887 (2nd Dept. 2005).

Arbitration clauses, as contractual provisions, will be enforced in accordance with their terms. Primavera Laboratories, Inc. v. Avon Products, Inc., 297 AD2d 505 (1st Dept. 2002).

An agreement that is clear and unambiguous will be enforced in accordance with its terms. South Road Assocs., LLC v. International Business Machines Corp., supra; Greenfield v. Philles Records, Inc., 98 NY2d 562 (2002); and W.W.W. Assocs. v. Giancontieri, supra. The court must determine the intent of the parties from the language of the agreement. Greenfield v. Philles Records, Inc., supra.

Terms of a contract are to be interpreted in accordance with their plain meaning.

Computer Associates International, Inc. v. U.S. Balloon Manufacturing Co., Inc., 10 AD3d 699 (2nd Dept. 2004); and Tikotzky v. New York City Transit Auth., 286 AD2d 493 (2nd Dept. 2001). [*2]

The Court is to give"...practical interpretation to the language employed and the parties reasonable expectations." Slamow v. Del Col, 174 AD2d 725, 726 (2nd Dept. 1991), aff'd., 79 NY2d 1016 (1992). See also, AFBT-II, LLC v. Country Village on Mooney Pond, Inc., 305 AD2d 340 (2nd Dept. 2003); and Del Vecchio v. Cohen, 299 AD2d 426 (2nd Dept. 2001).

The term "may" is permissive; not mandatory or exclusive. See, Marro v. Bartlett, 61 AD2d 729 (3rd Dept. 1978), affd., 46 NY2d 674 (1979); Bordet v. 21 Club, Inc., 11 Misc 3d 1069(A), (Sup.Ct. NY Co. 2006); and Greystone Staffing, Inc. v. Vincenzi, 7

Misc 3d 1024(A), (Sup.Ct. 2005). The arbitration clause in the agreement provides that the parties "may" submit their disputes to arbitration. Thus, arbitration is optional; not mandatory.

Such an interpretation is in accordance with the language of the agreement. Items which are mandatory use the term "will" or "shall." Items which are discretionary or optional use the term "may." The distinction between "shall" and "may" as used in the agreement is clearly demonstrated by Paragraph IV(D) of the agreement relating to termination. This section provides that Neisloss "may" terminate the agreement for any reason upon ten days written notice to Gomez. It further provides that Gomez "may" terminate the agreement if Neisloss breaches any material term of the agreement. However, this paragraph provides that if the agreement is terminated, Gomez "shall" be entitled to compensation for the work done to date.

It is the contractual right of either or both parties to seek to resolve their dispute through arbitration.Thus, Plaintiffs had the option of submitting the dispute to arbitration or commencing litigation. Plaintiffs opted for litigation.

However, in order to waive the right to arbitrate, the party must have participated in the litigation to such an extent so as to manifest a clear intent to litigate rather than arbitrate the dispute. Sherrill v. Grayco Builders, Inc., 64 NY2d 261 (1985). The service of an answer which includes an affirmative defense that the dispute should be submitted to arbitration does not waive arbitration. Les Construction Beauce-Atlas, Inc. v. Tocci Building Corp. of New York, Inc., 294 AD2d 409 (2nd Dept. 2002).

Although Plaintiffs waived arbitration by commencing this action, Gomez retained the option of litigating the dispute or having the dispute submitted to arbitration as provided by the agreement. By simply answering the complaint and asserting an affirmative defense of arbitration, Gomez manifested its desire to arbitrate. Thus, the action should be stayed and the parties compelled to arbitrate.

Accordingly, it is,

ORDERED, that Defendants' motion to stay the prosecution of this action is granted. The parties are compelled to proceed to arbitration as provided for in their agreement forthwith.

This constitutes the decision and Order of the Court.

Dated: Mineola, NY_____________________________

September 20, 2007Hon. LEONARD B. AUSTIN, J.S.C.