Isaacs v. Prospect Park, LLC

95 A.D.3d 1176, 943 N.Y.S.2d 911

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 2012
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated September 21, 2010, which denied its motion pursuant to CPLR 7503 (a) to compel arbitration.

Ordered that the order is affirmed, with costs.

The defendant is not entitled to arbitration, as the parties did not agree that the arbitration clause in the contract at issue was to survive the delivery of title (see 527 Smith St. Brooklyn Corp. v Bayside Fuel Oil Depot Corp., 262 AD2d 278 [1999]; cf. Matter of Praetorian Realty Corp. [Presidential Towers Residence], 40 NY2d 897 [1976]).

In light of our conclusion, we need not reach the parties’ remaining contentions. Mastro, A.P.J., Florio, Chambers and Roman, JJ., concur.