Cored Panels, Inc. v. Meinhard Commercial Corp.

• Decision Date: 09 October 1979
• Citation: 72 A.D.2d 544,420 N.Y.S.2d 731
• Parties: CORED PANELS, INC., Appellant, v. MEINHARD COMMERCIAL CORP., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 731

420 N.Y.S.2d 731

72 A.D.2d 544

CORED PANELS, INC., Appellant, v. MEINHARD COMMERCIAL CORP., Respondent.

Supreme Court, Appellate Division, Second Department.

Oct. 9, 1979.

Gutman & Gutman, Mineola (Lawrence C. Gutman, Mineola, of counsel), for appellant.

Strassberg & Strassberg, New York City (Louis Strassberg, New York City, of counsel), for respondent.

Before HOPKINS, J. P., and DAMIANI, O'CONNOR and RABIN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding to stay arbitration, petitioner appeals from a judgment of the Supreme Court, Suffolk County, dated January 30, 1979, which denied the application.

Judgment reversed, on the law, with $50 costs and disbursements, and petitioner's application to stay arbitration is granted.

The subject arbitration clause drawn by respondent's assignor provided:

"Any controversy or claim arising out of or relating to this agreement or breach thereof, Shall be settled by arbitration in the State of New York which shall be conducted in accordance with the Rules of the American Arbitration Association. All hearings shall be oral and shall be held in the County, City and State of New York. There shall be one arbitrator appointed by each party and said arbitrators shall appoint a third arbitrator who shall be an attorney duly licensed to practice in the State of New York. Judgment upon the award rendered by the arbitrators may be entered in the Supreme Court of the State of New York or in any other Court having jurisdiction thereof. Anything to the contrary notwithstanding, Badger may, at its option, choose to waive the arbitration provision herein and enforce its remedies directly by the institution of litigation in courts of competent jurisdiction." (Emphasis supplied.)

In our opinion the subject clause is void for lack of mutuality (see Hull Dye & Print Works v. Riegel Textile Corp., 37 A.D.2d 946, 325 N.Y.S.2d 782; Matter of Firedoor Corp. of Amer. v. R. K. & A. Jones, 47 A.D.2d 878, 366 N.Y.S.2d 443; Matter of Kaye Knitting Mills (Prime Yarn Co.), 37 A.D.2d 951, 326 N.Y.S.2d 361; Arcata Graphics Corp. v. Silin, 59 A.D.2d 1007, 399 N.Y.S.2d 738, cf. Matter of Riccardi (Modern Linen Supply Co.), 45 A.D.2d 191, 356 N.Y.S.2d 872, affd. 36 N.Y.2d 945, 373 N.Y.S.2d 551, 335 N.E.2d 856).