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FRITSCHLER v. DRAPER MGT., LLC

Index No. 652056/19. Appeal No. 15611. Case No. 2021-00070.

203 A.D.3d 623 (2022)

164 N.Y.S.3d 609

2022 NY Slip Op 02087

Charles Fritschler et al., Appellants, v. Draper Management, LLC, et al., Defendants, and Mark Deso et al., Respondents.

Appellate Division of the Supreme Court of New York, First Department.

Decided March 29, 2022.

Attorney(s) appearing for the Case

Capuder Fazio Giacoia LLP, New York (Douglas Capuder of counsel), for appellants.

Einbinder & Dunn LLP, New York (Stephaine J. Blumstein of counsel), for Mark Deso, Brooks Church, Robert Hurley and Subway Franchise Development of Boston, LLC, respondents.

Wiggin and Dana LLP, New York (David R. Roth of counsel), for Doctor's Associates, Inc., Doctor's Associates, LLC, Subway IP, Inc., Franchise World Headquarters, LLC, Subway Real Estate Corp. and Subway Real Estate LLC, respondents.

Concur—Kapnick, J.P., Webber, Friedman, Kennedy, Mendez, JJ.

Where the parties "explicitly incorporate rules that empower an arbitrator to decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the parties' intent to delegate such issues to an arbitrator" (Contec Corp. v Remote Solution, Co., Ltd., 398 F.3d 205, 208 [2d Cir 2005]; see also Schindler v Cellco Partnership, 200 A.D.3d 505, 505-506 [1st Dept 2021]). Here, plaintiff Fritschler and defendant...

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