Matter of CPS 1 Realty LP v R.P. Brennan Gen. Contrs. & Bldrs., Inc.

Matter of CPS 1 Realty LP v R.P. Brennan Gen. Contrs. & Bldrs., Inc. 2009 NY Slip Op 07149 [66 AD3d 418] October 6, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 9, 2009

In the Matter of CPS 1 Realty LP, Appellant,
v
R.P. Brennan General Contractors & Builders, Inc., Respondent.

—[*1] Westermann Sheehy Keenan Samaan & Aydelott, LLP, Garden City (Stephen J. Gillespie of counsel), for appellant.

Foreht Associates, LLP, New York (Stephen R. Foreht of counsel), for 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.

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]). Concur—Saxe, J.P., Sweeny, Moskowitz, Acosta and Richter, JJ. [See 22 Misc 3d 1135(A), 2009 NY Slip Op 50451(U).]