| Matter of All Metro Health Care Servs. Inc., v Edwards |
| 2008 NY Slip Op 10158 [57 AD3d 892] |
| December 23, 2008 |
| Appellate Division, Second Department |
| In the Matter of All Metro Health Care Services, Inc., et al.,Respondents, v Glenn Edwards, Appellant. |
—[*1] Cole, Schotz, Meisel, Forman & Leonard, P.A., New York, N.Y. (Leo V. Leyva, Steven L.Klepper, and Damian L. Albergo of counsel), and Paul, Weiss, Rifkind, Wharton & Garrison, LLP,New York, N.Y. (Amos B. Elberg of counsel), for respondent 1818 Mezzanine Fund II, L.P. (onebrief filed).
In a proceeding pursuant to CPLR article 75 to stay arbitration of certain claims pursuant to astock purchase agreement, the appeal is from a judgment of the Supreme Court, Nassau County(LaMarca, J.), entered February 22, 2008, which granted the petition.
Ordered that the judgment is affirmed, with costs.
"Arbitration is essentially a creature of contract in which the parties themselves charter a privatetribunal for the resolution of their disputes and are free to enlarge, restrict, modify, amend or terminatetheir agreement to arbitrate" (Matter of Instituto De Resseguros Do Brasil v First State Ins. Co.,221 AD2d 266, 266 [1995]; see Matter of Schlaifer v Sedlow, 51 NY2d 181, 185[1980]). In general, where, as here, there is a broad arbitration clause, "all questions with respect to thevalidity and effect of subsequent documents purporting to work a modification or termination of thesubstantive provisions of their original agreement are to be resolved by the arbitrator" (Inryco, Inc.v Parsons & Whittemore Contrs. Corp., 55 NY2d 666, 667 [1981] [internal quotation marksomitted]). However, the parties herein entered into a subsequent agreement containing a provision thateffectively imposed a condition precedent on the arbitration clause in the arbitration provision,satisfaction of which is required before the appellant could "commence any action or proceeding,"including the arbitration proceeding at issue, against, inter alia, the petitioners herein. Notwithstanding abroad arbitration clause, the threshold [*2]determination of whether acondition precedent to arbitration exists and whether it has been complied with, is for the court todetermine (see Matter of Cassone, 63 NY2d 756, 759 [1984]; Matter of County ofRockland [Primiano Constr. Co.], 51 NY2d 1, 7 [1980]; Matter of Fasano v Fasano,134 AD2d 589 [1987]). Accordingly, the Supreme Court properly granted the petition to stayarbitration. Mastro, J.P., Miller, Balkin and McCarthy, JJ., concur.