E.F. Hutton International Associates Ltd. v. Shearson Lehman Bros. Holdings, Inc.

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered May 2, 1991, which denied defendants’ motion to compel arbitration and stay the action, unanimously affirmed, with costs.

We agree with the IAS court that plaintiffs’ claims for tortious interference with contract cannot be characterized as a dispute arising under the contract (see, Genesco, Inc. v Kakiuchi & Co., 815 F2d 840, 856), and that it is therefore unnecessary to decide whether defendants are successors-in-interest to the agreements in issue.

Defendants’ alternative argument, that plaintiffs are "guar*440anteed subsidiaries” of the predecessor corporation within the meaning of rule 322 of the New York Stock Exchange, is admittedly presented for the first time on appeal, and, since it could have been countered factually by the plaintiffs had it been raised before the IAS court, we decline to reach it (cf., Sega v State of New York, 60 NY2d 183, 190, n 2, rearg denied sub nom. Cutway v State of New York, 61 NY2d 670). Concur —Murphy, P. J., Sullivan, Ellerin, Kupferman and Kassal, JJ.