Wolfman v. Herbstritt , 495 N.Y.S.2d 220 ( 1985 )

—In a medical malpractice action, defendant appeals from an order of the Supreme Court, Nassau County (Morrison, J.), dated May 16, 1983, which denied his application for a stay of the proceedings pending submission of the matter to arbitration.

Order affirmed, with costs.

Defendant seeks enforcement of two arbitration agreements signed by plaintiff Loretta Wolfman prior to surgery he performed on her. The agreements lack mutuality of consideration since defendant’s only conceivable action against her, i.e., for fees, is specifically exempted from resolution by arbitration (Miner v Walden, 101 Misc 2d 814). The agreements are, therefore, unenforceable (see, Dwyer v Biddle, 274 App Div 903). An earlier agreement signed by Mrs. Wolfman is also invalid for its failure to inform her that by agreeing to submit any disputes except for fees to arbitration she was waiving her right to a trial by Judge or jury (see, Sanchez v Sirmons, 121 Misc 2d 249). O’Connor, J. P., Niehoff, Lawrence and Hooper, JJ., concur.