Wilson v. Wallace

Valerie Wilson, appellant pro se. Michael Wallace and Wallace Home Improvement, LLC, respondents pro se.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered November 30, 2017. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is reversed, without costs, the action is reinstated and the matter is remitted to the Civil Court for a new trial.

Plaintiff, a homeowner, commenced this small claims action to recover the sum of $1,500 for breach of a contract to install new flooring. At a nonjury trial, the Civil Court, after taking testimony from both sides, dismissed the action on the ground that the contract has an arbitration clause and that no arbitration had been held, even though neither party had raised that point. However, as plaintiff argues on appeal, the contract has an additional clause which states that "[i]n the state of New York, the residential consumer shall have the option of electing to resolve any dispute between the parties in a court of proper jurisdiction rather than submit to an arbitration." Consequently, the Civil Court erred when it dismissed the action based upon the arbitration clause.

Accordingly, the judgment is reversed, the action is reinstated and the matter is remitted to the Civil Court for a new trial.

PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.