Opinion
November 18, 1985
Appeal from the Supreme Court, Nassau County (Morrison, J.).
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 Kooper, JJ., concur.