ACF Industries Holding Corp. v. Wachovia Capital Markets, LLC

22 A.D.3d 426, 803 N.Y.S.2d 53

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 27, 2005
• Status: Published

Opinion

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered April 21, 2005, which, insofar as appealed from, denied plaintiff-appellant’s motion for a stay of arbitration pending determination of this action, unanimously affirmed, with costs.

The motion court correctly held that any possible preclusive effect of an arbitration with respect to plaintiffs engagement agreement with defendant Wachovia Capital does not by itself justify a stay of that arbitration pending determination of this action involving the underwriting agreement between plaintiff and Wachovia Securities (see GAF Corp. v Werner, 66 NY2d 97, 102 [1985], cert denied 475 US 1083 [1986]; Matter of Wurttembergische Feuerversicherung AG. v Pan Atl. Group, 130 AD2d 754 [1987]). As plaintiff itself argued in seeking a stay of arbitration with respect to the underwriting agreement, the engagement agreement and the underwriting agreement, although related, are separate and not inextricably intertwined. We have considered the parties’ other arguments, including defendants’ argument that plaintiff is not aggrieved by the order on appeal, and find them to be without merit. Concur—Tom, J.P., Mazzarelli, Friedman, Catterson and McGuire, JJ.