On July 20, 2017 a
Order
was filed
involving a dispute between
Ronnie Dorrity,
and
Terry James Dorrity,
for Commercial - Contract
in the District Court of Lewis County.
Preview
FILED: LEWIS COUNTY CLERK 10/29/2018 09:37 AM INDEX NO. EFCA2017-000246
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/12/2022
At a Term of Supreme Court held in
and for the County of Lewis, in the
Village of Lowville, New York on the
23'd
day of August, 2018
PRESENT: HONORABLE JAMES P. McCLUSKY
Supreme Court Justice
STATE OF NEW YORK
SUPREME COURT COUNTY OF LEWIS
RONNIE DORRITY MEMORANDUM
DECISION
Plaintiff, AND.
ORDER
-vs-
TERRY JAMES DORRITY Index No. CA2017-000246
Defendant. RJi No. S24-2017-0140
Defendant moves to dismiss the action on the statute of limitations grounds and if
any claims remain stay the action pending arbitration on those claims. The Court has
considered the following: the Affidavit of Woodruff Carroll, dated March 9, 2018; the
Affidavit of Terry Dorrity, dated March 7, 2018; the Affirmation of Matthew J. Fanelli, dated
April 12, 2018, and the Affirmation of Ronnie Dorrity, dated April 12, 2018.
The undesiyiñg action was commenced on July 20, 2017 and seeks to address
claims of fraud by the Defendant in handling the investments of the Plaintiff. in particular,
the firstcause of action is underGeneral Business Law § 349, the second cause of action
sounds in fraud, the third cause of action alleges a breach of fiduciary duty, and the fourth
cause of action alleges failure to follow Securities and Exchange Rules.
In determining ifarbitration should occur Courts must look to see ifthere is a valid
agreement to arbitrate, ifthe particular dispute comes within the scope of the arbitration
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FILED: LEWIS COUNTY CLERK 10/29/2018 09:37 AM INDEX NO. EFCA2017-000246
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/12/2022
agrêêment, and ifthere has been compliance with any condition precedent
Plaintiff cites two arbitration agreements. The first is titled Advisory Agreement of
Fidelity Planning Group (FPG). That agreement was signed on March 4, 2008 and is
between the Plaintiff and Fidelity Planning Group. A document signed by the Plaintiff
acknowledges that the Defendant is his broker and the representative of FPG. The FPG
agreement requires "any controversy between the parties hereto involving construction or
application of any terms, covenants or conditions of this Agreement shall...be submitted
arbitration."
ho
Plaintiff argues the Advisory Agreement of Fidelity Planning Group is not an
enforceable agreement as itlimits the time to sue to a period shorter than the New York
State set statute of limitations. Parties are free to contract any conditions or limitations
which they desire. Therefore this is not a reason to invalidate the FPG arbitration clause.
Plaintiff also argues that the agreement does not have the language required by the
Commodities and Securities Exchange Rules. As the agreement is one associated with
the investment in commodities and securities that come under these rules the Court finds
the contact is not a valid contract as to the arbitration clause.
Defendant also cites an agreement signed February 6, 2007. The Court will refer
to this agreement as the Ace agreement. This agreement has the language required by
the Securities and Exchange Commission. The agreement is a valid agreement to
arbitrate. Plaintiff, if he wishes to commence arbitration must file an intent to submit a
claim which will then trigger Defendant's obligation to act. Up to this point there has been
compliance with the agreement.
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2 of 3
FILED: LEWIS COUNTY CLERK 10/29/2018 09:37 AM INDEX NO. EFCA2017-000246
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/12/2022
. .
Itis therefore
ORDERED that the action is stayed so that itmay proceed by way of arbitration if
Plaintiff desires to pursue these claims.
Dated: September , 2018
at Watertown, New York
ENTER
JAM P. M LUSKY
Su reme C urt Justice
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3 of 3
Document Filed Date
October 29, 2018
Case Filing Date
July 20, 2017
Category
Commercial - Contract
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FILED: LEWIS COUNTY CLERK 10/29/2018 09:37 AM INDEX NO. EFCA2017-000246 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/12/2022 At a Term of Supreme Court held in and for the County of Lewis, in the Village of Lowville, New York on the 23'd day of August, 2018 PRESENT: HONORABLE JAMES P. McCLUSKY Supreme Court Justice STATE OF NEW YORK SUPREME COURT COUNTY OF LEWIS RONNIE DORRITY MEMORANDUM DECISION Plaintiff, AND. ORDER -vs- TERRY JAMES DORRITY Index No. CA2017-000246 Defendant. RJi No. S24-2017-0140 Defendant moves to dismiss the action on the statute of limitations grounds and if any claims remain stay the action pending arbitration on those claims. The Court has considered the following: the Affidavit of Woodruff Carroll, dated March 9, 2018; the Affidavit of Terry Dorrity, dated March 7, 2018; the Affirmation of Matthew J. Fanelli, dated April 12, 2018, and the Affirmation of Ronnie Dorrity, dated April 12, 2018. The undesiyiñg action was commenced on July 20, 2017 and seeks to address claims of fraud by the Defendant in handling the investments of the Plaintiff. in particular, the firstcause of action is underGeneral Business Law § 349, the second cause of action sounds in fraud, the third cause of action alleges a breach of fiduciary duty, and the fourth cause of action alleges failure to follow Securities and Exchange Rules. In determining ifarbitration should occur Courts must look to see ifthere is a valid agreement to arbitrate, ifthe particular dispute comes within the scope of the arbitration 1 1 of 3 FILED: LEWIS COUNTY CLERK 10/29/2018 09:37 AM INDEX NO. EFCA2017-000246 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/12/2022 agrêêment, and ifthere has been compliance with any condition precedent Plaintiff cites two arbitration agreements. The first is titled Advisory Agreement of Fidelity Planning Group (FPG). That agreement was signed on March 4, 2008 and is between the Plaintiff and Fidelity Planning Group. A document signed by the Plaintiff acknowledges that the Defendant is his broker and the representative of FPG. The FPG agreement requires "any controversy between the parties hereto involving construction or application of any terms, covenants or conditions of this Agreement shall...be submitted arbitration." ho Plaintiff argues the Advisory Agreement of Fidelity Planning Group is not an enforceable agreement as itlimits the time to sue to a period shorter than the New York State set statute of limitations. Parties are free to contract any conditions or limitations which they desire. Therefore this is not a reason to invalidate the FPG arbitration clause. Plaintiff also argues that the agreement does not have the language required by the Commodities and Securities Exchange Rules. As the agreement is one associated with the investment in commodities and securities that come under these rules the Court finds the contact is not a valid contract as to the arbitration clause. Defendant also cites an agreement signed February 6, 2007. The Court will refer to this agreement as the Ace agreement. This agreement has the language required by the Securities and Exchange Commission. The agreement is a valid agreement to arbitrate. Plaintiff, if he wishes to commence arbitration must file an intent to submit a claim which will then trigger Defendant's obligation to act. Up to this point there has been compliance with the agreement. 2 2 of 3 FILED: LEWIS COUNTY CLERK 10/29/2018 09:37 AM INDEX NO. EFCA2017-000246 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/12/2022 . . Itis therefore ORDERED that the action is stayed so that itmay proceed by way of arbitration if Plaintiff desires to pursue these claims. Dated: September , 2018 at Watertown, New York ENTER JAM P. M LUSKY Su reme C urt Justice 3 3 of 3