International Aviation Services of New York, Inc. v. Flagsim Co.

43 A.D.2d 971, 352 N.Y.S.2d 223, 1974 N.Y. App. Div. LEXIS 5702

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 19, 1974
• Status: Published

Opinion

In a proceeding pursuant to article 75 of the CPLR to stay arbitration between the parties, (1) the petitioner, International Aviation Services of New York, Inc., appeals from so much of a judgment of the Supreme Court, Westchester County, dated October 26, 1970, as denied the application insofar as it was addressed to the respondent’s claim for work, labor and services in the sum of $210,931.95 (the judgment reduced this claim to $182,219.46); and (2) the respondent, the Flagsim Co. Inc., cross-appeals from so much of the judgment as granted the application insofar as it was addressed to the respondent’s claim with respect to the construction of a 30 by 40 foot office building. Judgment affirmed insofar as appealed from, without costs. The letter of intent agreement provides: "The cost portion of the contract will represent all direct job costs, including field labor, sub-contractors, etc. more specifically outlined in AIA contract forms plus a 10% overhead and 5% fee to be added to cost items as our contractual charge.” This provision does not indicate an intent to incorporate by reference all of the other provisions of the AIA contract form which do not deal with direct job costs, field labor, subcontractors or related matters. There is no showing that the arbitration clause in the AIA contract form was ever considered or referred to. Parties may not be compelled to participate in an arbitration unless they have clearly agreed to do so (CPLR 7501; 8 Weinstein-Korn-Miller, N. Y. Civ. Prae., par. 7501.21). Martuscello, Acting P. J., Shapiro, Christ, Benjamin and Munder, JJ., concur.