M & D Simon Co. v. Mills

58 A.D.2d 750, 396 N.Y.S.2d 651, 1977 N.Y. App. Div. LEXIS 12891

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 5, 1977
• Status: Published

Opinion

Judgment (erroneously denominated an order), Supreme Court, New York County, entered March 30, 1977, denying Simon’s petition to stay arbitration in New York City and to compel that any arbitration go forward in Cleveland and granting Swanzey’s cross motion to the extent of directing that the AAA determine the locale of the pending arbitration, unanimously modified, on the law, by reversing so much thereof as directed the AAA to determine the locale of the pending arbitration, and by granting the branch of the cross motion to compel that arbitration go forward in New York City, and, as modified, otherwise affirmed. Respondent-respondent-appellant shall recover of petitioner-appellant-respondent $60 costs and disbursements of this appeal. Upon appeal, the sole issue presented is whether the parties will go to arbitration before the AAA in New York City or in Cleveland. In signing Swanzey’s sales form No. 16355, Simon initially agreed to arbitrate any dispute in New York City. The question of whether the parties’ subsequent exchange of unsigned invoices canceled, superseded or amended their original agreement is a matter that must be resolved at arbitration under the terms of that original agreement (Matter of Popular Pub. [McCall Corp.], 36 AD2d 927). Therefore, while the AAA will normally determine the locale of arbitration under section 10 of its rules, the parties in this proceeding have set the locale in New York City by their own agreement. Concur—Murphy, P. J., Kupferman, Evans and Capozzoli, JJ.