BSI-Banca Della Svizzera Italiana v. Ensra Construction Corp.

194 A.D.2d 403, 598 N.Y.S.2d 515, 1993 N.Y. App. Div. LEXIS 5937

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 10, 1993
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Carol E. Huff, J.), entered December 22, 1992, which denied petitioner’s application to stay arbitration and granted respondent’s cross-motion to compel arbitration, unanimously affirmed, with costs.

We agree with the IAS Court’s finding of affirmative action on petitioner’s part sufficient to demonstrate its intent to assume its assignor’s obligations under the contract in issue, including the arbitration clause contained therein (see, Matter of Kaufman [Iselin & Co.—Crest-Tex Mills], 272 App Div 578, 581-582; Matter of Vann v Kreindler, Relkin & Goldberg, 78 AD2d 255, 259-260, affd 54 NY2d 936). Petitioner’s demand that the contract be assigned directly to it and its retention of a consultant to keep it advised of the progress of the project shows that it was engaged in more than mere monitoring of the project. There being an agreement between the parties to arbitrate, the untimeliness of petitioner’s application for a stay of arbitration precludes it from arguing that the agreement is invalid or has not been complied with (CPLR 7503 [c]; see, Matter of Matarasso [Continental Cas. Co.] 56 NY2d 264, 267). Concur—Carro, J. P., Rosenberger, Wallach, Kupferman and Rubin, JJ.