Parker v Clear Skies Solar, Inc.

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Parker v Clear Skies Solar, Inc. 2012 NY Slip Op 33353(U) July 17, 2012 Supreme Court, New York County Docket Number: 602579/2008 Judge: Shirley Werner Kornreich Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 07/18/2012 1] INDEX NO. 602579/2008 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 07/18/2012 SUPREM~ COURT OF THE STATE OF NEW YORK NEW YORK COUNTY ! JUSl\CE SH~RLEV '\!!ERNER KORNRElCH PART PRESENT: 54 Justice Index Number: 602579/2008 PARKER, ROBERT F. vs. CLEAR SKIES SOLAR SEQUENCE NUMBER : 004 INDEX N O . - - - - MOTION DATE S/L'l/I?.. MOTION SEQ. NO. - - - COMPEL OR STAY ARBITRATION The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits I No(s). Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - - - - - Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ INo(s). I No(s). ) S'--3 7 3<J 3Gf Upon the foregoing papers, It is ordered that this motion is w (.) ~ :::> .., MOTION 'S OECIDEC IN ACCOROANC( WITt-' ACCOMPANVfNG MEMORANDUtl\ e Q w D:: D:: w w DECISION AND ORDER. IL D:: ¢ ¢ >- !!!. z ..J ..J :::> IL o· UJ (.) < w I- .. ··-·-t . . . . --··- ,.__.,._. . . .---..,...-.. _, ..... ~ w D:: g; (!) wz D:: - ~ ..J ~ w "' ..J <o IL (.) - ::c z w 0 1- § :IE D:: f2 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ...........................MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ %NON-FINAL DISPOSITION D CASE DISPOSED 0 GRANTED IN PART 0 OTHER 0 GRANTED 0 DENIED 0 SUBMIT ORDER 0 SETTLE ORDER 0 DO NOT POST 0 FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 54 --------------------------------------------------------------------)( ROBERT F. PARKER, Plaintiff, Index No.: 602579/2008 -againstCLEAR SKIES SOLAR, INC., and its wholly owned subsidiary, CLEAR SKIES GROUP, INC., EZRA GREEN, PAMELA NEWMAN, GELVIN STEVENSON, and RICHARD KLEIN, DECISION and ORDER Defendants. ---------------------------------------------------------------------)( SHIRLEY WERNER KORNREICH, J.: Plaintiff Robert F. Parker filed a motion (1) to compel defendant Clear Skies Solar, Inc., and its wholly owned subsidiary, Clear Skies Group, Inc. (Clear Skies), to proceed to arbitration, as agreed by the parties, within sixty days; and (2) in the event Clear Skies fails to proceed to arbitration, granting plaintiff a default judgment, pursuant to CPLR 3215(a). Plaintiffs motion is denied for the reasons that follow. Plaintiff commenced this action in 2008. Justice Lowe dismissed the individually named officers and directors of defendant corporations from the action, as well as all causes of action save the breach of contract. On July 11, 2011, the day that a bench trial was scheduled to commence, the parties agreed that the case would proceed to binding arbitration in lieu of a bench trial. The parties agreed to spilt the costs of arbitration equally. Thus, a proceeding was commenced before the American Arbitration Association (AAA), an arbitrator was agreed upon by the parties, and the arbitration was scheduled to begin on November 28, 2011. In a 1 [* 3] conference call on November 11, 2011, Clear Skies' attorney notified plaintiff and the arbitration case manager that Clear Skies would be unable to pay for its share of the arbitration costs due to lack of funds. Pursuant to AAA policy, the AAA will not commence an arbitration proceeding until the entire fee is paid. In opposition to the instant motion, Clear Skies reaffirmed its inability to pay for its share of the arbitration costs. Moreover, at oral argument on April 24, 2012, Clear Skies' attorney made it clear that it would default either at arbitration or at trial. However, Clear Skies seeks to force the default to occur at arbitration. Clear Skies proposes that plaintiff pay the full cost of arbitration so that the arbitration can commence, pursuant to the parties' agreement. Plaintiff refuses to do so. Given Clear Skies' alleged inability and clear refusal to pay the arbitration fee, Clear Skies has breached it agreement to arbitrate the this action. Arbitration can only take place if plaintiff pays the full costs, something plaintiff refuses to do. The court, therefore, cannot grant plaintiffs motion to compel arbitration. Instead, the court will schedule a date for a bench trial. Accordingly, it is hereby ORDERED that Plaintiff Robert F. Parker's motion to compel arbitration is denied; and it is further ORDERED that a bench trial will commence in this matter in Part 54, on August 9, 2012, at 2: 15 p.m.; and it is further ORDERED that the caption is amended, in accordance with Justice Lowe's August 19, 2009 dismissal order, to read: 2 [* 4] -------------------------------------------------------------------)( ROBERT F. PARKER, Plaintiff, -againstCLEAR SKIES SOLAR, INC., and its wholly owned subsidiary, CLEAR SKIES GROUP, INC., Defendants. ---------------------------------------------------------------------)( and it is further ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the County Clerk and the Clerk of the Trial Support Office, who are directed to mark the court records to reflect the present defendants. Dated: July 17, 2012 ENTER: 3

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