In re the Arbitration between Medina Power Co. & Small Power Producers, Inc.

Order and judgment insofar as appealed from unanimously reversed on the law without costs, stay vacated and parties directed to proceed to arbitration. Memorandum: Supreme Court erred in granting petitioner’s application for an order pursuant to CPLR 7503 (b) permanently staying arbitration on the ground that a prior arbitration award is res judicata of the issues raised in the instant proceeding. The doctrine of res judicata applies only to issues resolved in the prior arbitration (see, Rembrandt Indus. v Hodges Intl., 38 NY2d 502, 504); the parties are barred “from relitigating only those matters which were actually contested and therefore determined by the award” (Matter of Cine-Source, Inc. v Burrows, 180 AD2d 592, 594). In the instant proceeding, there are disputed factual issues whether respondent’s entitlement to a termination charge under Article VI of the parties’ agreement was resolved in the prior arbitration (see, Burbank Broadcasting Co. v Roslin Radio Sales, 99 AD2d 976, 977). Those issues are within the exclusive province of the arbitrator to resolve (see, Matter of City School Dist. v Tonawanda Educ. Assn., 63 NY2d 846, 848; Matter of Port Auth. v Port Auth. Police Sergeants Benevolent Assn., 225 AD2d 503; Lopez v Parke Rose Mgt. Sys., 138 AD2d 575, 577). We therefore vacate the permanent stay of arbitration and direct the parties to proceed to arbitration. (Appeal from Order and Judgment of Supreme Court, Erie County, Michalek, J.—Arbitration.) Present— Green, J. P., Pine, Lawton and Fallon, JJ.