W.G. & Associates, LLC v. A. Aleem Construction, Inc.

Appellate Division of the Supreme Court of New York

W.G. & Associates, LLC v. A. Aleem Construction, Inc.

33 A.D.3d 387, 821 N.Y.S.2d 754

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 10, 2006

StatusPublished

This text of 33 A.D.3d 387 (W.G. & Associates, LLC v. A. Aleem Construction, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

W.G. & Associates, LLC v. A. Aleem Construction, Inc., 33 A.D.3d 387, 821 N.Y.S.2d 754 (N.Y. Ct. App. 2006).

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Opinion

Order and judgment (one paper), Supreme Court, New York County (Kibbie F. Payne, J.), entered July 11, 2005, which denied petitioner project owner’s application to stay an arbitration demanded by respondent contractor, and dismissed the petition, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered November 29, 2005, which denied petitioner’s motion to reargue, unanimously dismissed, without costs, as taken from a nonappealable paper.

The condition precedent to arbitration requiring a decision by the project architect on all claims “arising prior to the date final payment is due” is inapplicable, since the claim here was made after final payment became due, i.e., after the architect had approved petitioner’s final request for payment. Petitioner’s other claims were improperly advanced for the first time either on reargument (see William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1992], lv dismissed in part and denied in part 80 NY2d 1005 [1992]) or on appeal (cf. Chateau D'If Corp. v City of New York, 219 AD2d 205, 209 [1996], lv denied 88 NY2d 811 [1996]). Concur—Tom, J.P, Saxe, Friedman, Sullivan and McGuire, JJ.

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Order and judgment (one paper), Supreme Court, New York County (Kibbie F. Payne, J.), entered July 11, 2005, which denied petitioner project owner’s application to stay an arbitration demanded by respondent contractor, and dismissed the petition, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered November 29, 2005, which denied petitioner’s motion to reargue, unanimously dismissed, without costs, as taken from a nonappealable paper.

The condition precedent to arbitration requiring a decision by the project architect on all claims “arising prior to the date final payment is due” is inapplicable, since the claim here was made after final payment became due, i.e., after the architect had approved petitioner’s final request for payment. Petitioner’s other claims were improperly advanced for the first time either on reargument (see William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1992], lv dismissed in part and denied in part 80 NY2d 1005 [1992]) or on appeal (cf. Chateau D'If Corp. v City of New York, 219 AD2d 205, 209 [1996], lv denied 88 NY2d 811 [1996]). Concur—Tom, J.P, Saxe, Friedman, Sullivan and McGuire, JJ.

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Bluebook (online)

33 A.D.3d 387, 821 N.Y.S.2d 754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wg-associates-llc-v-a-aleem-construction-inc-nyappdiv-2006.

Opinion

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