New York Rowing Assn. v Peter Jay Sharp Boathouse, Inc.

New York Rowing Assn. v Peter Jay Sharp Boathouse, Inc. 2012 NY Slip Op 01376 Decided on February 23, 2012 Appellate Division, First Department 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.

Decided on February 23, 2012
Tom, J.P., Friedman, Sweeny, Moskowitz, DeGrasse, JJ.
6909N 652243/11

[*1]New York Rowing Association, Petitioner-Respondent,

v

The Peter Jay Sharp Boathouse, Inc., et al., Respondents-Appellants.




Skadden, Arps, Slate, Meagher & Flom LLP, New York (Gary
J. Hacker of counsel), for appellants.
Proskauer Rose LLP, New York (Brian D. Burton of counsel),
for respondent.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered September 1, 2011, which granted New York Rowing Association's (NYRA) motion for injunctive relief pending arbitration, unanimously affirmed, with costs.

The parties' agreement, whereby NYRA would manage operations at appellants' boathouse for ten years, beginning in 2003, expressly provided that NYRA could seek arbitration of default disputes arising from NYRA's intentional breach of any provision in the parties' management agreement (cf. Bowmer v Bowmer, 50 NY2d 288 [1980]). Here, the appellants, in July 2011, served NYRA with a notice terminating its management services for NYRA's alleged failure to pay them an annual Asset Management Fee, from 2009 through 2011, in accordance with the agreement's terms. NYRA filed for arbitration and, in support of its instant motion, submitted evidence that demonstrated its intentional breach of the obligation to pay the annual Asset Management Fee. The evidence showed that, from 2007 through 2008, appellants' executive director had stated that the fee was "waived" and, thereafter, appellants themselves allegedly "breached" the parties' management agreement when they unilaterally terminated it in June 2009, effective "immediately," relying on grounds that did not constitute a material default under the terms of the agreement. Moreover, NYRA asserts that it had no obligation to pay the annual Asset Management Fee from 2009 through 2011 because appellants not only terminated the parties' agreement, but, as in the past years, appellants never provided any "advisory services" to earn the right to an annual fee, as per the terms of the management agreement.

Such disputes are covered under the parties' arbitration clause. Furthermore, language in [*2]the agreement that expressly authorizes recourse to injunctive relief to maintain the status quo pending an arbitration award is enforceable (see e.g. Matter of Slepian v Beanstalk Rests., 75 AD2d 749 [1980]).

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

ENTERED: FEBRUARY 23, 2012

CLERK