In Case of First Impression, Second Department Holds That Arbitration Clause Entered into by Decedent Does Not Compel Arbitration of Wrongful Death Cause of Action by Administrator

• Posted on: Jun 16 2025

By: Jeffrey M. Haber

New York “favors and encourages arbitration as a means of conserving the time and resources of the courts and the contracting parties”.[1] Under the Federal Arbitration Act (“FAA”), “‘questions of arbitrability must be addressed with a healthy regard for the federal policy [favoring arbitration] … [and] any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.’”[2]

Thus, “where the [parties’] contract contains an arbitration clause, there is a presumption of arbitrability in the sense that an order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute”.[3] Although the intention of the parties is controlling, “those intentions are generously construed as to issues of arbitrability”.[4]

“[O]n a motion to compel or stay arbitration, a court must determine, ‘in the first instance … whether parties have agreed to submit their disputes to arbitration and, if so, whether the disputes generally come within the scope of their arbitration agreement.’”[5] “The burden of proof is on the party seeking arbitration.”[6]

“A party to an agreement will not be compelled to arbitrate, and thereby, to surrender the right to resort to courts, in the absence of evidence affirmatively establishing that the parties expressly agreed to arbitrate the dispute at hand.”[7] “The agreement [to arbitrate] must be clear, explicit and unequivocal[,] and must not depend upon implication or subtlety.”[8]

In Marinos v. Brahaj, 2025 N.Y. Slip Op. 03561 (2d Dept. June 11, 2025) (here), the Appellate Division, Second Department was asked to consider the following question, “as a matter of first impression”: whether a wrongful death cause of action asserted by a decedent’s administrator individually, and which arose from the same facts as a negligence cause of action was subject to an arbitration clause the decedent entered into.[9] As discussed below, the Court held that the wrongful death cause of action did not have to be arbitrated.

Overview

Marinos involved a negligence and wrongful death action. The plaintiffs, George Marinos and Josephine Belli-Marinos, as administrators of the estate of Andreas N. Belli-Marinos (the “decedent”)[10] and individually, moved to stay arbitration of negligence causes of action the plaintiffs asserted on behalf of the decedent’s estate against the defendants Revel Transit, Inc. (“Revel”), Frank Reig, and Paul Shuey (collectively, the “Revel defendants”), and a wrongful death cause of action plaintiffs asserted on behalf of themselves individually against the Revel defendants. The Revel defendants opposed the motion and cross-moved to compel arbitration of all causes of action asserted against them. The motion court denied the motion to stay arbitration and granted the Revel defendants’ cross-motion to compel arbitration. Plaintiffs argued that the wrongful death cause of action against the Revel defendants should not be subject to arbitration.

Relevant Facts

On September 19, 2021, the decedent was operating a rented electric moped in Manhattan. He had rented the moped from Revel using an app. To rent a moped from Revel, Revel required that a user download its app and become a member of Revel. The decedent had become a member of Revel on April 8, 2021, and had rented a moped from Revel 74 times prior to the date of the accident. As alleged in the complaint, the decedent was ejected from the moped he had rented and fell into the street. He was then hit by a vehicle operated and owned by defendant Astrit Brahaj. Plaintiffs alleged that being hit by the vehicle caused the injuries that resulted in the decedent’s death. Plaintiffs commenced the action, among other things, to recover damages for personal injuries and wrongful death against defendants.

When a user downloads Revel’s app for the purpose of renting a moped, they are presented with a series of pages that they must acknowledge through “clicks.” One page that users must acknowledge is an agreement that contains an arbitration clause. For the purpose of the appeal, the parties conceded that the negligence causes of action asserted on behalf of the decedent’s estate against the Revel defendants were subject to the arbitration clause and must proceed to arbitration.

The Appeal

Plaintiffs commenced the action on March 2, 2022. The Revel defendants served an answer and a demand for arbitration on April 4, 2022. Plaintiffs then moved to stay arbitration of the causes of action against the Revel defendants. In support of their motion, plaintiffs argued, inter alia, that they were not bound by the arbitration clause because they did not sign the agreement and were not the decedent’s successors or assigns but were court-appointed administrators of the decedent’s estate. The Revel defendants opposed the motion and cross-moved to compel arbitration of the causes of action asserted against them. In support of their cross-motion, the Revel defendants argued, among other things, that the “successors and assigns” language in the arbitration clause bound plaintiffs because they stood in the decedent’s shoes, who entered into the agreement containing the arbitration clause, and therefore, the causes of action asserted against them must be determined by arbitration. In an order dated April 20, 2023, the motion court, inter alia, denied plaintiffs’ motion and granted the Revel defendants’ cross-motion, finding that plaintiffs, as the court-appointed administrators of the decedent’s estate, were bound by the decedent’s agreement to arbitrate. Plaintiffs appealed.

On appeal, plaintiffs argued that the wrongful death cause of action was not derivative of the negligence causes of action and that EPTL 5-4.1 conferred upon them the individual, independent right to pursue a wrongful death cause of action on their own behalf against the Revel defendants. The Revel defendants argued that the arbitration clause applied to plaintiffs as administrators of the decedent’s estate and individually based upon the language in the arbitration clause stating that it applied to the user’s “successors and assigns.” The Revel defendants further argued that the FAA applied to this case and, therefore, arbitration of the wrongful death cause of action against them was mandatory. In reply, plaintiffs argued that the wrongful death cause of action was based upon their own pecuniary loss and was not based upon their roles as administrators of the decedent’s estate. Plaintiffs further argued that the FAA did not apply and did not mandate that plaintiffs arbitrate the wrongful death cause of action against the Revel defendants.

Whether the Wrongful Death Cause of Action Against the Revel Defendants Was Subject to the Arbitration Clause

The Court noted that plaintiffs did not enter into an agreement with Revel to arbitrate. Notwithstanding, said the Court, plaintiffs are the administrators of the decedent’s estate, and the causes of action arose from the same incident that caused the decedent’s death. The issue, explained the Court, turned on the nature of wrongful death causes of action and whether they were derivative of negligence causes of action or independent of negligence causes of action.

Looking at the EPTL (Estates, Powers & Trusts Law), the Court explained that “[t]he law of this State is clear that a wrongful death cause of action is a separate and distinct cause of action to redress the injuries suffered by a decedent’s distributees as a result of the decedent’s death.”[11] The Court reasoned that since a wrongful death claim is an individual one, an arbitration agreement entered into by the decedent could not bind the decedent’s administrator or personal representative.

The Court noted that “[o]ther states follow[ed its] reasoning.”[12] In Lucia v. Bridge Senior Living, LLC (2024 WL 688521, 2024 Del. Super. LEXIS 113), the Delaware Superior Court addressed the same issue and determined that a wrongful death cause of action asserted by the personal representative of an estate in his individual capacity was not subject to an arbitration clause that bound the decedent and the estate.[13] Similarly, in Pisano v. Extendicare Homes, Inc. (2013 PA Super 232, 77 A.3d 651), the Superior Court of Pennsylvania also determined that a wrongful death claim was not derivative of a decedent’s rights, but belonged to the individual who alleged it.[14] The United States Court of Appeals for the Sixth Circuit affirmed an interpretation of Kentucky’s law that a decedent had no legal rights in a wrongful death claim asserted by the personal representative of the estate, and thus, the personal representative was not bound by contracts entered into by the decedent.[15]

The Court noted that there were courts in other jurisdictions that reached different results, determining that wrongful death claims are derivative of a decedent’s injuries, and the parties asserting wrongful death claims are subject to the arbitration agreements that bound the decedent.[16]

After considering the EPTL and the authorities from other jurisdictions, the Court held that “the wrongful death cause of action [was] independent of the negligence causes of action asserted on behalf of the decedent’s estate.”[17] Accordingly, “plaintiffs, individually, never agreed to arbitrate any claims with Revel and [could not] be forced to do so.”[18]

Whether the FAA Mandates that the Plaintiffs Arbitrate the Wrongful Death Cause of Action Insofar as Asserted Against the Revel Defendants

The Court held that “the FAA ha[d] no application” to the action.[19] The Court explained that the “initial inquiry remain[ed] whether there [was] a valid agreement to arbitrate.”[20] “Whether or not the decedent was taking part in interstate commerce when entering into the agreement with Revel,” was not relevant as “there [was] no valid, much less any, agreement to arbitrate between Revel and the plaintiffs.”

Accordingly, the Court reversed the motion court’s order denying “that branch of the plaintiffs’ motion which was to stay arbitration of the cause of action alleging wrongful death” against the Revel defendants and denied “that branch of the Revel defendants’ cross-motion which was to compel arbitration of the cause of action alleging wrongful death” asserted against them is denied.[21]

Takeaway

Although we do not often write about cases involving negligence or wrongful death causes of action, we believe that the Court’s ruling in Marinos is notable and has implications that may extend beyond the facts and circumstances before the Court.

Arbitration is a “creature of contract.”[22] As a general matter, only signatories to a contract containing an arbitration agreement can be compelled to arbitrate.[23] Consequently, “a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.”[24] Marinos underscores these general propositions.

As discussed, the Court in Marinos held that a wrongful death claim brought by a decedent’s distributees is independent of any claims the decedent could have brought and is not subject to arbitration agreements signed by the decedent. The decision distinguishes between derivative claims belonging to the estate (which may be subject to arbitration agreements) and independent claims belonging to distributees.

In our view, the rationale of Marinos would apply to situations in the commercial context. For example, in a shareholder action in which the plaintiff asserts direct and derivative claims, under Marinos, the direct claims would not have to be arbitrated, while the derivative claims would have to be if the business entity is subject to an arbitration agreement.

To be sure, we may be reading more into the reasoning of the decision, but it seems to be a logical extension of the ruling.

In any event, Marinos is notable in the wrongful death context as it makes clear that wrongful death claims under New York law are independent causes of action belonging to distributees and are not automatically bound by agreements signed by the decedent.

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Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP. This article is for informational purposes and is not intended to be and should not be taken as legal advice.

[1] Smith Barney Shearson Inc. v. Sacharow, 91 N.Y.2d 39, 49-50 (1997) (citations omitted).

[2] Singer v. Jefferies & Co., Inc., 78 N.Y.2d 76, 81-82 (1991) (quoting Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983)).

[3] AT&T Techs. v. Communs. Workers of Am., 475 U.S. 643, 650 (1986) (citations omitted); see also Wilson v. PBM, LLC, 193 A.D.3d 22 (2d Dept. 2021).

[4] Singer, 78 N.Y.2d at 82 (citation omitted).

[5] Degraw Constr. Group, Inc. v. McGowan Bldrs., Inc., 152 A.D.3d 567, 569 (2d Dept. 2017) (quoting Sisters of St. John the Baptist, Providence Rest Convent v. Geraghty Constructor, 67 N.Y.2d 997, 998 (1986), and citing Revis v. Schwartz, 192 A.D.3d 127, 134 (2d Dept. 2020), aff’d, 38 N.Y.3d 939 (2022)).

[6] Matter of Cusimano v. Berita Realty, LLC, 103 A.D.3d 720, 721 (2d Dept. 2013); Wolf v. Hollis Operating Co., LLC, 211 A.D.3d 769, 770 (2d Dept. 2022).

[7] Glauber v. G & G Quality Clothing, Inc., 134 A.D.3d 898, 898 (2d Dept. 2015); Revis, 192 A.D.3d at 142.

[8] Sutphin Retail One, LLC v. Sutphin Airtrain Realty, LLC, 143 A.D.3d 972, 973 (2d Dept. 2016) (internal quotation marks omitted); Glauber, 134 A.D.3d at 898.

[9] Slip Op. at *1.

[10] Plaintiffs are the decedent’s parents.

[11] Slip Op. at *2.

[12] Id.

[13] Id. at *2-*3.

[14] Id. at *3.

[15] Id. (citing Richmond Health Facilities v. Nichols, 811 F.3d 192 (6th Cir. 2016)).

[16] Id. (citing cases).

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Louis Dreyfus Negoce S.A. v. Blystad Shipping & Trading Inc., 252 F.3d 218, 224 (2d Cir. 2001).

[23] TBA Global, LLC v. Fidus Partners, LLC, 132 A.D.3d 195, 202 (1st Dept. 2015).

[24] AT&T Techs., 475 U.S. at 648 (quoting Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960)).