| Matter of SSL Intl., PLC v Zook |
| 2007 NY Slip Op 07539 [44 AD3d 429] |
| October 11, 2007 |
| Appellate Division, First Department |
| In the Matter of SSL International, PLC, et al., Appellants, et al.,Petitioner, v Gerald P. Zook, Respondent. |
—[*1] Holland & Knight LLP, New York City (David D. Howe of counsel), forrespondent.
Order and judgment (one paper), Supreme Court, New York County (Faviola A. Soto, J.),entered July 26, 2006, which denied petitioners-appellants' application to stay arbitration, grantedrespondent's cross motion to compel arbitration, and dismissed the petition, unanimouslyaffirmed, with costs.
Having moved this Court, albeit unsuccessfully, for a stay of arbitration pending the appeal,appellants did not waive their right to pursue the appeal (see Matter of Commerce & Indus.Ins. Co. v Nester, 90 NY2d 255, 264 [1997]).
The court's determination to compel arbitration was appropriate. Respondent made asufficient evidentiary showing that appellants exploited the 1997 license agreement betweenrespondent and Silipos, Inc., by marketing products that utilized technology covered by thelicense agreement. Accordingly, respondent established that appellants, nonsignatories to thelicense agreement, were estopped from seeking to avoid an arbitration provision contained in thelicense agreement since they derived direct benefits from said agreement (see HRH Constr. LLC v MetropolitanTransp. Auth., 33 AD3d 568, 569 [2006]; see also Deloitte Noraudit A/S v DeloitteHaskins & Sells, U.S., 9 F3d 1060, 1064 [2d Cir 1993]). Appellants, by not coming forwardwith any evidence contesting respondent's position, failed to carry their burden of [*2]showing sufficient facts to establish justification for the stay(see Matter of AIU Ins. Co. v Cabreja, 301 AD2d 448, 449 [2003]).Concur—Tom, J.P., Mazzarelli, Friedman, Sullivan and Nardelli, JJ.