DECISION & ORDER By notice of motion electronically filed on August 5, 2021, the defendants Alliance Health Operations, LLC d/b/a Linden Center for Nursing and Rehabilitation and Allure Care Management LLC (hereinafter defendants) seek an order pursuant to CPLR 7503 (a) and 9 U.S.C. §3 compelling arbitration and dismissing the verified complaint. For the reasons set forth below, and after reviewing the motion papers found on NYSCEF, document numbers 12 through 22, and after hearing oral argument of the parties on December 2, 2021, the motion is denied. On September 4, 2020, Caron Hackett-Napier, as Administrator of the Estate of Thelma Thomas commenced the instant action against the defendants for, inter alia, wrongful death by filing a summons and verified complaint with the Kings County Clerk’s office. On October 30, 2020, the defendants filed a joint answer with the Kings County Clerk’s office. A party to an agreement will not be compelled to arbitrate and, thereby, 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 (Giffone v. Berlerro Grp., LLC, 163 AD3d 780, 780 [2nd Dept 2018]). The agreement to arbitrate must be clear, explicit and unequivocal, and must not depend upon implication or subtlety (Matter of Waldron, 61 NY2d 181, at 183-184 [1984]). In support of the instant motion, the defendants submitted an affirmation of their counsel and a copy of an admission agreement (hereinafter the subject agreement) which contained an arbitration clause. The affirmation of defendants’ counsel demonstrated no personal knowledge of the execution or authenticity of the subject agreement. An attorney’s affirmation that is not based upon personal knowledge is of no probative value (Warrington v. Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2nd Dept 2006]). The subject agreement was not authenticated by anyone with personal knowledge. Moreover, the signature lines of the proffered agreement contained a signature on behalf of the defendants but no signature on behalf of the plaintiff’s decedent. That line was left blank. Below the blank line was a signature on a line designated as a witness line. The subject agreement contained no signature by the plaintiff’s decedent or of anyone purporting to bind the plaintiff’s decedent. The movants also failed to submit any other proof that the parties intended to be bound by the subject admission agreement (cf. Highland HC, LLC v. Scott, 113 AD3d 590, 594 [2nd Dept 2014]). In sum, the defendant did not establish that the plaintiff’s decedent had an agreement to arbitrate with the defendants. The motion to dismiss the action and compel the parties to arbitrate their claims is denied.
