| Curran v Estate of Curran |
| 2011 NY Slip Op 06243 [87 AD3d 607] |
| August 16, 2011 |
| Appellate Division, Second Department |
| Helen Curran, Appellant, v Estate of Thomas P. Curran,Sr., Respondent, et al., Defendants. |
—[*1] Adam Richards LLC, New York, N.Y., for respondent.
In an action, inter alia, for specific performance of the parties' stipulation of settlement, theplaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, QueensCounty (Hart, J.), dated April 8, 2010, as granted that branch of the motion of the defendantEstate of Thomas P. Curran, Sr., which was pursuant to CPLR 3211 (a) (1) to dismiss thecomplaint insofar as asserted against that defendant.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendant Estate of Thomas P. Curran, Sr., which was pursuant toCPLR 3211 (a) (1) to dismiss the complaint insofar as asserted against it is denied.
That branch of the motion of the defendant Estate of Thomas P. Curran, Sr. (hereinafter thedefendant), which was pursuant to CPLR 3211 (a) (1) dismiss the complaint insofar as assertedagainst it should have been denied. "An agreement to arbitrate is not a defense to an action," andthus, as here, it may not be the basis for a motion to dismiss a complaint based on documentaryevidence (Allied Bldg. Inspectors Intl. Union of Operating Engrs., Local Union No. 211,AFL-CIO v Office of Labor Relations of City of N.Y., 45 NY2d 735, 738 [1978]; seeCPLR 3211 [a] [1]; Nachman vJenelo Corp., 25 AD3d 593 [2006]; Nastasi v Nastasi, 26 AD3d 32, 40-41 [2005]; Schwartz vSchmergel, 121 AD2d 527 [1986]).
In light of our determination, the plaintiff's remaining contention is academic. Skelos, J.P.,Belen, Hall and Roman, JJ., concur.