| Matter of Brenda DeLuca Trust (Elhannon, LLC) |
| 2013 NY Slip Op 05267 [108 AD3d 902] |
| July 11, 2013 |
| Appellate Division, Third Department |
| In the Matter of Brenda DeLuca Trust et al., Respondents,and Elhannon, LLC, Appellant. |
—[*1] Couch Dale Marshall, PC, Latham (Mark W. Couch of counsel), forrespondents.
Stein, J. Appeal from an order and judgment of the Supreme Court (McDonough, J.),entered December 21, 2011 in Albany County, which granted petitioners' applicationpursuant to CPLR 7503 to stay arbitration between the parties.
Pursuant to a letter of intent, respondent began to perform landscaping services forpetitioner Brenda DeLuca Trust in July 2005 in conjunction with the construction of acustom home. Thereafter, the parties' agreement was reduced to a written contract that,among other things, incorporated the terms of the "General Conditions of the Contractfor Construction" of the American Institute of Architects. The contract designated LandDesign Studio, LLC as the architect and Drew Cathell Custom Homes, Inc. as theconstruction manager. When a dispute regarding payment arose between the parties,respondent sent two letters (dated November 21, 2005 and November 28, 2005) to bothCathell—who it alleged had been playing the role of architect for theproject—and the Trust indicating, among other things, that respondent intended tofile a claim under the contract. The parties were unable to resolve the dispute and, in July2011, respondent filed a demand for arbitration in accordance with the terms of thecontract.[FN1] Subsequently, petitioners commenced this proceeding pursuant to CPLR article 75seeking to [*2]permanently stay arbitration. SupremeCourt granted petitioners' application, prompting this appeal by respondent.
We affirm. Because the arbitration process is a creature of contract, the parties maychoose to make any particular contract requirement a condition precedent to arbitrationor a condition in arbitration (see Matter of County of Rockland [Primiano Constr.Co.], 51 NY2d 1, 8-9 [1980]; Matter of Spencer-Van Etten Cent. School Dist.[Auchinachie & Sons], 179 AD2d 855, 856 [1992], lv denied 79 NY2d 759[1992]; Matter of Town of Queensbury [Joseph R. Wunderlich, Inc.], 175 AD2d946, 947-948 [1991]). Whether a condition precedent to arbitration has been satisfied is adetermination to be made by the courts in the first instance (see Matter of Town of Ticonderoga[United Fedn. of Police Officers, Inc.], 15 AD3d 756, 758 [2005]; Matter ofTown of Queensbury [Joseph R. Wunderlich, Inc.], 175 AD2d at 947-948).
Here, section 4.4.1 of the General Conditions of the Contract for Construction directsthat claims "shall be referred initially to the Architect for decision" and that "[a]n initialdecision by the Architect shall be required as a condition precedent to mediation,arbitration or litigation of all Claims between [respondent] and [the Trust] arising prior tothe date final payment is due, unless 30 days have passed after the Claim has beenreferred to the Architect with no decision having been rendered by the Architect."Assuming, without finding, that respondent's November 2005 letters to the Trust andCathell constituted a claim, it is undisputed that respondent failed to provide notice toLand Design of such claim—a condition precedent to arbitration—and wereject respondent's contention that it was under no obligation to do so.
While the record demonstrates that Cathell had, indeed, performed some of theadministrative tasks assigned to the architect under the contract, there is no evidence tosupport respondent's contention that such arrangement frustrated its ability to complywith the applicable notice provision or that notice to Land Design would have beenfutile. Respondent concedes that Land Design was plainly designated as the architect inthe contract and that its representative had been introduced to respondent's principal assuch. In addition, there is no evidence that Land Design had been removed from theproject or that anything prevented respondent from notifying Land Design of its claim.Moreover, in the event that Land Design failed to render a decision on respondent'sclaim, the terms of the contract would have permitted respondent to proceed to the nextstep of the dispute resolution process 30 days after submission of the claim.[FN2]
Inasmuch as the parties' contract explicitly established that submission of a claim fordecision by the architect was a condition precedent to arbitration and respondent failed tosatisfy such condition, Supreme Court properly granted petitioner's application to stayarbitration (see Matter ofLakeland Fire Dist. v East Area Gen. Contrs., Inc., 16 AD3d 417, 417-418[2005]; Matter of Board of Educ. of Schenevus Cent. School Dist. [Merritt MeridianConstr. Corp.], 210 AD2d 854, 855 [1994]; Matter of Board of Educ.,Longwood Cent. School Dist. v Hatzel & Buehler, 156 AD2d 684, 685 [1989],lv denied 76 NY2d 703 [1990]).[*3]
Respondent's remaining contentions have beenrendered academic by our decision or have been considered and found to be withoutmerit.
Peters, P.J., Lahtinen and Egan Jr., JJ., concur. Ordered that the order and judgmentis affirmed, without costs.
Footnote 1: No explanation for thelengthy delay between the genesis of the dispute and the filing of the demand forarbitration is apparent from the record.
Footnote 2: To the extent thatrespondent argues in the alternative that any failure to comply with the conditionsprecedent to arbitration was excused because the Trust had improperly terminated thecontract, we need only note that the record is devoid of any evidence of such termination,aside from respondent's unsubstantiated assertion.