The opinion of the court was delivered by: Bernard J. Fried, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
This is an application under CPLR 7502, for an injunction in aid of arbitration. Plaintiff, Project Orange Associates, LLC ("POA"), seeks an order that would require Defendant, General Electric International, Inc. ("GEII"), to continue performing its obligations under the parties' Cogeneration Facility Operation and Maintenance Agreement (the "Agreement"), until the resolution of arbitration proceedings initiated by GEII. POA seeks this provisional relief primarily on the ground that any award issued by the arbitrator would be rendered ineffectual if the injunction is not granted. POA further contends that it has shown a likelihood of success on the merits, that it will suffer irreparable harm if the relief is not granted, and that the balance of the equities tips in its favor.
GEII disputes the assertion that any arbitration award would be rendered ineffectual, and further argues that POA has not met the traditional three-pronged test (pursuant to Article 63) for the issuance of a preliminary injunction.
Briefly, the events giving rise to this action are as follows. Pursuant to the terms of the Agreement, entered into by the parties in April 1998 and amended December 6, 1999 and January 1, 2006,*fn1 GEII has been operating and maintaining a steam cogeneration facility in Syracuse, New York, which is owned by POA. GEII's obligations under the Agreement also include the repair and maintenance of two gas turbine engines, which power electricity-producing generators and heat recovery steam generators. POA supplies the steam generated at the cogeneration facility to Syracuse University, which uses it to heat and operate its campus buildings. Syracuse University also provides steam generated at the POA facility to three hospitals in the area. (See Victor Aff. ¶ 1; see also Kaveney Aff.*fn2 ¶ 3.) According to POA, GEII is further obligated under the Agreement to ensure that the cogeneration facility has in place two operational turbines at all times. GEII, however, contends it is merely required to operate and maintain the turbines, and not to provide, unconditionally or within a specified time frame, any replacement or additional turbines. There is no dispute that, pursuant to the 2006 Amendment, GEII agreed to assume the cost of up to $1 million for any unplanned or unscheduled repair of the turbines, up to a maximum of $2 million in any one calendar year. (See Def. Ex.H.)
Although the parties disagree on the precise reasons for the breakdown of the relationship between them, there is no dispute that, in early 2007, POA began to reject certain invoices it received from GEII, and that sometime between June and September, 2008, POA ceased all payments to GEII. (See Victor Aff. ¶ 5; see also Reidy Affirm.*fn3 ¶ 5, Kalmes Aff.*fn4 ¶ 47.) According to POA, the reason it began rejecting invoices was because GEII breached the Agreement by failing to provide, operate and maintain two turbines at the cogeneration facility, and that this breach resulted in lost revenue and increased costs to POA. According to GEII, however, it has complied with the terms of the operative Agreement, and POA now owes it more than $2 million in outstanding invoices.
On September 18, 2008, GEII provided POA with a Notice of Default, in accordance with the Agreement, and advised POA that if its default was not cured within 30 days, GEII would terminate the Agreement, cease work at the cogeneration facility, and pursue all available remedies. (Kaveney Aff. ¶ 9; Def. Ex. N.) Representatives from GEII then met with Adam Victor, POA's president and principal owner, in an effort to resolve the dispute, but no resolution was reached. On December 15, 2008, GEII provided POA with a Notice of Termination, which designated December 31, 2008 as the effective date of termination of the Agreement, and on December 17, 2008, GEII filed a Demand for Arbitration, in which it asserted a claim for $2,436,304.49, representing the amount of POA's unpaid invoices, plus interest. (See Def. Ex.W; see also Victor Aff. Ex.I for GEII's Demand for Arbitration.) Section 11.01 of the Agreement provides that all disputes "arising under, out of or in connection with the making, performance or execution of this Agreement" shall be submitted to the American Arbitration Association in New York, New York. (Victor Aff. Ex.C at 36.)
On December 24, 2008, POA filed counterclaims in the arbitration proceeding, seeking $100 million in damages stemming from GEII's breach of the Agreement, as well as declaratory judgments that GEII has no ground to terminate the Agreement, and that POA owes no money under the Agreement because of GEII's breach. POA further seeks from the arbitrator "an order mandating that [GEII] provide POA with two operational gas turbines and continue to operate and maintain the cogeneration plant for the balance of the term of the O & M agreement [sic] or, at a minimum, pending resolution of the arbitration as set forth in Section 11.06 of the Arbitration clause under the O & M Agreement." (Victor Aff. Ex.J.) Section 11.06 of the Agreement provides, "All performance required by either Party under this Agreement shall continue during arbitration proceedings." (Victor Aff. Ex.C at 36.) Section 14.20 provides, similarly, that all performance is to continue during any legal proceedings. (Id. at 39.)
On December 26, 2008, POA initiated the instant action, seeking to enjoin GEII from ceasing its operation and maintenance of the cogeneration facility pending resolution of the arbitration. The parties appeared before the Hon. Martin Schoenfeld, who granted a temporary restraining order requiring GEII to continue operating and maintaining the facility, and requiring POA to "pay all amounts due and owing under the Agreement for the period between December 26, 2008 and January 6, 2009" (which was the date set down for argument on the motion for preliminary injunction), and further requiring POA to post an undertaking in the amount of $250,000 "to secure those obligations." (Order, Ex Parte Motion Term, December 26, 2008.)
On January 6, 2009, after hearing argument on the motion, I extended the TRO put into place by Judge Schoenfeld, and required POA to file an amended bond, which could be drawn upon to secure any amounts due and invoiced on a weekly basis, going forward. The question before me now is whether or not Plaintiff has demonstrated that it is entitled to the preliminary injunctive relief it seeks.
In order to demonstrate entitlement to a preliminary injunction in aid of arbitration, pursuant to CPLR 7502, the petitioner must show that any award issued by the arbitrator may be rendered ineffectual if the relief is not granted. The First Department also requires the application of the traditional, three-pronged test for granting a preliminary injunction, found in Article 63. Erber v. Catalyst Trading, LLC, 303 AD2d 165 (1st Dep't 2003) ("the criteria for provisional relief set forth in CPLR articles 62 and 63 are not relaxed when such relief is sought in aid of arbitration pursuant to CPLR 7502") (citations omitted); In re Cullman Ventures, Inc., 252 AD2d 222, 230 (1st Dep't 1998) ("Moreover, we apply the general criteria governing the issuance of injunctive relief to an application for a preliminary injunction under CPLR 7502(c)").
The application before me, however, differs from the more usual petition for injunctive relief in aid of arbitration in that, here, there is a contractual provision, agreed upon by the parties, which requires performance to continue during the pendency of the arbitration. Where both parties to a contract agreed to continued performance, how could a preliminary injunction requiring that very performance not be issued? Research has revealed no New York State cases*fn5 including a petition for 7502 relief and a contractual provision like this one, and it is thus not clear whether the petitioner must show satisfaction of the traditional, equitable factors, or whether a demonstration that the contract requires continued performance, combined with a showing that an arbitration award will be rendered ineffectual, may be sufficient. I therefore turn, first, to the language of the Agreement itself for clues as to the appropriate result.
Plaintiff insists that the plain language of Section 11.06 requires the issuance of the preliminary injunction it seeks. The Agreement is explicit in its directive that any "dispute arising under, out of or in connection with the making, performance or execution" of the Agreement shall be submitted to arbitration. (Victor Aff. Ex. C at 36.) It is equally explicit that "[a]ll performance required by either Party under this Agreement shall continue during arbitration proceedings." (Id.)
Defendant, however, argues that the dispute resolution provisions should not be read in isolation, but rather, in the context of the entire agreement, which also provides that GEII may, upon default by POA, elect to terminate. Section 7.02(b) provides that, upon the occurrence of an Event of Default by POA, GEII "may, by written notice to POA, terminate this Agreement immediately with respect to a POA Event of Default pursuant to Section 7.02(a)(i)." Failure by POA to pay any amount due within 30 days after notice constitutes a 7.02(a)(i) Event of Default, and thus GEII is entitled to provide POA with written notice of immediate termination. Moreover, GEII argues, the term of the Agreement is defined in Section 6.01 as "beginning on the Commencement Date and continuing until December 31, 2013, unless such date is extended or this Agreement is ...