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Incorporated Village of Freeport v. Turner Environlogic, Inc.

Other Lower Courts

December 12, 2007

Incorporated Village of Freeport, Plaintiff,
v.
Turner Environlogic, Inc., and Westchester Fire Insurance Company Surety for Turner Environlogic, Inc., Defendants.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

Counsel for Plaintiff Harrison J. Edwards, Esq.

Counsel for Defendants Gordon Juengst, P.C.

OPINION

Leonard B. Austin, J.

Defendants Turner Environlogic, Inc. and Westchester Fire Insurance Company as Surety move for an order pursuant to CPLR 2201 enjoining Plaintiff from proceeding with this civil action and for an order pursuant to CPLR 7503(a) compelling Plaintiff to arbitrate the dispute between the parties on the grounds that the claims alleged in the complaint are subject to arbitration pursuant to a written procurement contract.

BACKGROUND

In 2002 Plaintiff, Village of Freeport ("Village") awarded a procurement contract to Defendant Turner Environlogic, Inc. ("Turner"). The contract, No. 8188-P1, provided for the construction of an emission control system for the Village's Electric Power Plant 2 Expansion at 289 Buffalo Avenue in Freeport, New York. In this action, the Village asserts causes of action sounding in breach of contract, breach of warranty, breach of a performance bond and specific performance. In response, Defendants moved to stay this action and compel the Village to proceed to arbitration in compliance with the procurement contract's arbitration clause.

Procurement Contract No. 8188-P1 for an emissions control system, in relevant part, addresses "Procurement General Conditions" (Section 00700), "Procurement Supplementary Conditions" (Section 00800) and "Modifications to Procurement General Conditions" (Section 00810).

Section 00700 consists of 17 pages setting forth the Procurement General Conditions. The General Conditions include Article 15 which provides for arbitration in the event of a dispute arising out of the "Procurement Documents".

Regarding the specifics of Article 15, which is entitled "Arbitration", Section 15.1 states, in relevant part:

All claims, disputes and other matters in question between OWNER and CONTRACTOR arising out of or relating to the Procurement Documents or the breach thereof . . . shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining subject to the limitations of this Article 15. (emphasis supplied)

Section 00800 addresses the Procurement Supplementary Conditions. It appears to be a transition vehicle which ...


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