McMahan Sec. Co. L.P. v Aviator Master Fund, Ltd.

McMahan Sec. Co. L.P. v Aviator Master Fund, Ltd. 2008 NY Slip Op 09847 [57 AD3d 326] December 16, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

McMahan Securities Co. L.P., Appellant,
v
Aviator Master Fund, Ltd., et al., Respondents.

—[*1] Isaacs & Evans, LLP, New York (Leigh R. Isaacs of counsel), for appellant.

Gary H. Greenberg, New York, for respondents.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered May 16, 2008, which denied petitioner's application to stay arbitration and dismissed the proceeding, unanimously affirmed, with costs.

The court correctly found that respondents were the customers of petitioner, a member of the National Association of Securities Dealers (NASD) (now the Financial Industry Regulatory Authority) (see Financial Network Inv. Corp. v Becker, 305 AD2d 187, 188 [2003]), and therefore that petitioner must arbitrate pursuant to rule 12200 of the NASD Code of Arbitration. Contrary to petitioner's contention, no waiver of the obligation to arbitrate is contained in the subscription agreements entered into by respondents and nonparty Strategy Real Estate Investments, Ltd.

Petitioner, which is not a signatory to any of the agreements, is not entitled to enforce the forum selection clause as a third-party beneficiary (see Mendel v Henry Phipps Plaza W., Inc., 16 AD3d 112 [2005], affd 6 NY3d 783 [2006]). The clear and unambiguous language of paragraph 13 of the subscription agreements explicitly excludes all but the signatories and their successors from its provisions. Nor has petitioner shown that it is a closely related entity so as to be entitled to enforce the forum selection clause (see Freeford Ltd. v Pendleton, 53 AD3d 32, 38-39 [2008]). Concur—Andrias, J.P., Nardelli, Sweeny, DeGrasse and Freedman, JJ. [See 20 Misc 3d 386.]