American Plan Corp. v. Jarchin

In a proceeding to stay arbitration, the appeals are from (1) an order of the Supreme Court, Nassau County, entered April 5, 1974, which stayed arbitration pending a trial of the preliminary issue of whether the agency agreement had been terminated by petitioner and (2) a judgment of the same court, entered August 6, 1975, which, after a nonjury trial of that issue, permanently stayed arbitration. Order and judgment affirmed, with costs. Special Term properly determined that it was for the court, not the arbitrators, to determine whether the express condition precedent to arbitration, contained in the narrowly drafted arbitration clause, had been met (see Matter of Rosenbaum [American Sur. Co. of N. Y.] 11 NY2d 310, 313-314; Matter of Empire Mut. Ins. Co. [Stroud-Boston Old Colony Ins. Co.], 36 NY2d 719, 720; Matter of Humble Oil & Refining Co. [Civitano] 32 AD2d 670). Upon this record, it is clear that Trial Term correctly concluded that this express condition precedent had not been satisfied. Latham, Acting P. J., Margett, Damiani, Rabin and Shapiro, JJ., concur.