Barbalious v. Exterior Wall Systems, Inc.

In a proceeding pursuant to CFLR article 75 to stay arbitration of an agreement dated October 9, 2001, the appeal is from an order of the Supreme Court, Nassau County (Bucaria, J.), entered February 20, 2004, which granted the petition to stay the arbitration and denied the motion to compel arbitration. Ordered that the order is reversed, on the law, with costs, the motion to compel arbitration is granted, the petition is denied, and the processing is dismissed. Under the circumstances of this case, the Supreme Court erred in granting the petition to stay the arbitration (see Matter of Liebhafsky [Comstruct Assoc.], 62 NY2d 439 [1984]). Contrary to the Supreme Court’s determination, the provision requiring submission of claims to the architect within 21 days, although termed a condition precedent, is a matter of contract interpretation for the arbitrator to resolve (see Matter of Calvin Klein, Inc. [Winter Assoc.], 204 AD2d 149 [1994]; Matter of Spencer-Van Etten Cent. School Dist. [Auchinachie & Sons], 179 AD2d 855 [1992]). Schmidt, J.P., Adams, Santucci and Luciano, JJ., concur.