On May 17, 2023, the Second Department issued a decision in Matter of Mirzakandov v. Mazal U Bracha, LLC, 2023 NY Slip Op. 02663, holding that a court must determine whether a party agreed to be bound by an agreement to arbitrate, explaining:
With respect to Musheyev’s contention that he never agreed to arbitration in his individual capacity, although the Supreme Court did not reach this issue, we do so in the interest of judicial economy, since the record is fully developed and the parties briefed these issues before the Supreme Court and on appeal.
A party will not be compelled to arbitrate and, thereby, to surrender the right to resort to the courts, absent evidence which affirmatively establishes that he or she expressly agreed to arbitrate the dispute at issue. The agreement must be clear, explicit, and unequivocal and must not depend upon implication or subtlety. The issue of whether such an agreement to arbitrate exists, or whether a party is a signatory to an otherwise valid arbitration agreement, is for the court and not the arbitrator to determine. Here, questions of fact exist regarding whether Musheyev agreed to arbitrate the dispute in his individual capacity, since the arbitration agreement and addendum thereto did not clearly and unequivocally establish that he signed them in his individual capacity, as opposed to in his capacity as a representative of the LLC. Therefore, this matter must be remitted to the Supreme Court, Queens County, for a hearing on the issue of whether Musheyev agreed to arbitrate this dispute in his individual capacity, and for a new determination thereafter of the petition insofar as asserted against him.
(Internal quotations and citations omitted).