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CPS 1 Realty LP v. R.P. Brennan General Contractors & Builders

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


October 6, 2009

IN RE CPS 1 REALTY LP, PETITIONER-APPELLANT,
v.
R.P. BRENNAN GENERAL CONTRACTORS & BUILDERS, INC., RESPONDENT-RESPONDENT.

Orders, Supreme Court, New York County (Barbara R. Kapnick, J.), entered March 10, 2009, which denied petitioner's motions to stay arbitration and granted respondent's motion to dismiss this proceeding, unanimously affirmed, with costs.

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 Official Reports.

Saxe, J. P., Sweeny, Moskowitz, Acosta, Richter, JJ.

114766/08

On a motion to stay arbitration, the court's "gatekeeper" role is limited to deciding whether there was a valid arbitration agreement, whether the parties complied with the agreement, and whether the claim to be arbitrated was barred by the statute of limitations (see Cooper v Bruckner, 21 AD3d 758, 759 [2005]).

Here, the court properly found that the issue of respondent's failure to provide timely notices to petitioner, "though couched in terms of satisfaction of a condition precedent to arbitration, is in actuality nothing more than an allegation of noncompliance with the substantive terms of the contract, a matter plainly encompassed by the arbitration clause" (Matter of Montgomery-Otsego-Schoharie Solid Waste Mgt. Auth. [Bonded Insulation Co.], 215 AD2d 995, 996 [1995]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091006

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