Drazek v Vital Transp., Inc. (2013 NY Slip Op 50187(U))

Drazek v Vital Transp., Inc.

2013 NY Slip Op 50187(U) [38 Misc 3d 138(A)]

Decided on February 8, 2013

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Lesley Drazek, Respondent, —

against

Vital Transportation, Inc., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered November 4, 2010. The order denied defendant's motion to dismiss the action or, in the alternative, to compel arbitration and stay the action pending arbitration.

ORDERED that the order is reversed, without costs, and the branch of defendant's motion seeking to compel arbitration and stay the action pending arbitration is granted.

In this small claims action, plaintiff, a shareholder and proprietary licensee of defendant, a radio dispatch limousine service, seeks to recover the sum of $5,000. Defendant moved to dismiss the action based upon documentary evidence, pursuant to CPLR 3211 (a) (1), or, in the alternative, to compel arbitration and stay the action pending arbitration, pursuant to CPLR 7503 (a). In support of the motion, defendant offered a copy of the proprietary licensing agreement, signed by plaintiff, which provided that the sole means of resolving claims or controversies arising out of voucher payments or monetary fines addressed against the licensee was to submit the claims or controversies to a committee of shareholders and then, should the licensee not be [*2]satisfied with the committee's decision, to submit the same to binding arbitration.

Although plaintiff submitted no written opposition to defendant's motion, the Civil Court denied the motion, based upon issues raised by plaintiff at oral argument of the motion.

In general, the denial of a motion to dismiss a small claims action does not constitute a denial of substantial justice within the meaning of CCA 1807, since the only effect of the order is to require the parties to proceed to trial, and the appeal from such an order will ordinarily be dismissed (see Shaw v Okenwa, 36 Misc 3d 154[A], 2012 NY Slip Op 51720[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Feinstein v Lagios, 12 Misc 3d 128[A], 2006 NY Slip Op 50917[U] [App Term, 2d & 11th Jud Dists 2006]). However, in the motion under consideration, defendant seeks, in the alternative, to compel arbitration and to stay the action pending arbitration, pursuant to CPLR 7503 (a). Since plaintiff did not submit any sworn opposition papers to controvert defendant's factual allegations that the arbitration clause of their agreement governed the controversy, the Civil Court should have granted the branch of defendant's motion seeking to compel arbitration and stay the action pending arbitration (see Wen Zong Yu v Charles Schwab & Co., Inc., 34 Misc 3d 32 [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is reversed, and the branch of defendant's motion seeking to compel arbitration and stay the action pending arbitration is granted.