Wagner v. Baranoff

88 A.D.2d 531, 450 N.Y.S.2d 391, 1982 N.Y. App. Div. LEXIS 16664

Opinion

Judgment, Supreme Court, New York County (Lehner, J.), entered December 9, 1981 dismissing the action on summary judgment, is reversed, on the law, and the judgment is vacated, and order denying plaintiff’s motion for summary judgment and granting defendants summary judgment, is modified, on the law, to the extent that summary judgment is denied to defendants, and the order is otherwise affirmed, without costs. In the circumstances of this case, a triable issue of fact is presented as to whether there was a breach of warranty or representation that there were no judgments against the corporations or Baranoff except those not exceeding $5,000. Assuming that the claim against one or both defendants was subject to arbitration, that would not be a ground to dismiss the action but only to stay it. (CPLR 7503, subd [a].) The parties have not addressed themselves to the question as to whether the action should be stayed, in whole or in part, and accordingly, we do not decide that question. Concur — Murphy, P. J., Sandler, Ross, Carro and Silverman, JJ.