Cathedral Park Building Associates v. Damon & Morey

— Order unanimously reversed on the law with costs and motion granted. Memorandum: County Court erred in denying respondent’s motion to compel arbitration and to stay this proceeding to recover possession of real property. In the lease between the parties, they agreed to arbitrate "[e]very dispute arising under this Lease other than non-payment of Fixed Rent”. Although the instant dispute between the parties involved respondent’s 1204 refusal to pay fixed rent between April 16 and August 24, 1990, the disagreement is not about fixed rent but rather about the date on which respondent’s obligation to pay fixed rent accrued. In these circumstances, we conclude that the issues raised here are not excluded from the parties’ agreement to arbitrate and that they should be submitted to an arbitrator as demanded by respondent (see, Information Sciences v Mohawk Data Science Corp., 43 NY2d 918). In addition, we reject petitioner’s contention that County Court lacked jurisdiction to compel arbitration and to stay the instant proceeding (see, Judiciary Law § 190-b [1]; CPLR 7503 [a]; see also, Edwards v Bergner, 22 AD2d 808, 809; Columbia Mem. Hosp. v MacFarland Bldrs., 74 Misc 2d 870; see generally, Matter of City of Johnstown [Local 779, Johnstown Fire Fighters Assn.], 43 AD2d 874; Siegfried v Katz, 16 Misc 2d 649). (Appeal from Order of Erie County Court, D’Amico, J.— Arbitration.) Present — Callahan, A. P. J., Denman, Pine, Balio and Lawton, JJ.