Elgin National Industries, Inc. v. Somerset Construction Co.

Order, Supreme Court, New York County, entered on June 28, 1977, denying defendant-appellant’s motion to stay this action and compel arbitration, unanimously reversed, on the law, and motion granted. Appellant shall recover of plaintiffs-respondents $40 costs and disbursements of this appeal. On March 10, 1970 appellant and plaintiff entered into a written joint venture agreement which provided as follows: "33. arbitration The parties agree that any dispute arising out of or in connection with the within Agreement * * * shall be settled by arbitration in the City of New York before three (3) arbitrators in accordance with the Rules of the *870American Arbitration Association, and the award may be enforced in any court having jurisdiction.” On May 1, 1975 a further written agreement was entered into modifying certain provisions contained in the earlier, basic joint venture agreement. Paragraph 33 was not modified, and paragraph 8 of the later agreement provides: "Except as expressly modified by this Agreement, the terms and conditions of the Basic Joint Venture Agreement, and/or any other specific Joint Venture Agreements for Projects which have developed from the Basic Joint Venture agreement, shall continue in full force and effect”. The dispute between the parties involves the distribution of proceeds of the joint venture which are being' held in escrow. The plaintiffs contend that such dispute arises from the second agreement and that agreement does not provide for arbitration. We disagree. The present dispute arises "out of or in connection with” the basic joint venture agreement. The fact that there was a later, modifying agreement does not eliminate the "connection”, especially where, as here, such later agreement, in effect reaffirms the arbitration provision. (American Home Assur. Co. v American Fid. & Cas. Co., 356 F2d 690, 691-692; Siegelson v Dann, 38 AD2d 817, affd 30 NY2d 736.) Concur—Lupiano, J. P., Birns, Evans and Capozzoli, JJ.