Jones Apparel Group, Inc. v. Petit

Order and judgment (one paper), Supreme Court, New York County, entered October 12, 1979, reversed, on the law, and petitioner-appellant’s application for permanent stay of arbitration granted, with costs. An order for yarn— the first dealing between these parties—which specified no more than grade, quantity, delivery date, and price, was transmitted orally to respondent-respondent by petitioner-appellant. There followed three documents relating to the transaction sent by respondent to petitioner, covered by identical letters, denominating the enclosures "contracts” and requesting signature and return. Petitioner did neither. Each of the three contained an arbitration clause. When a dispute arose concerning quality of the goods furnished, respondent sought arbitration. Petitioner moved to stay, and Special Term, holding addition of the arbitration provision not to be a material alteration of terms and therefore part of the contract of purchase, denied the application. This fact pattern is evaluated in Matter of Marlene Inds. Corp. (Carnac Textiles) (45 NY2d 327, revg this court’s holding 59 AD2d 359), and in Sehubtex, Inc. v Allen Snyder, Inc. (49 NY2d 1). There was no specific agreement to arbitrate nor any past relation between the parties such as conceivably might support a finding of agreement to arbitrate. A vague, unspecific reference by respondent to the effect that "in the textile industry arbitration is the usual accepted method of resolving disputes” is not an acceptable substitute for the latter. This is not to say that there could not be a case in which a direction to arbitrate could be founded upon proof of custom and usage of sufficient strength to bind a whole industry. But this is not that case. (See Professor Siegel’s Note, Sehubtex, NYS Law Digest, No. 242, Feb., 1980.) Concur—Birns, Ross and Markewich, JJ.