Opinion
October 24, 1985
Appeal from the Supreme Court, Albany County (Conway, J.).
Plaintiff was a paving subcontractor on a construction project for the Schenectady Municipal Housing Authority. Defendant was the surety on behalf of the general contractor, RSJ Construction Corporation (RSJ). RSJ had purchased a bond from defendant guaranteeing payment for labor and materials provided by subcontractors including plaintiff.
By notice of demand for arbitration dated November 7, 1984, plaintiff sought arbitration with RSJ of the dispute over payment of the balance allegedly due under the subcontract between the parties. On December 5, 1984, plaintiff commenced the instant action against defendant seeking payment of the undetermined balance due to the subcontractor. Defendant then moved for an order staying the proceedings in this action pending the result of the arbitration proceeding. Special Term granted defendant's motion and plaintiff appeals.
CPLR 2201 provides that "the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just". The amount of defendant's liability on the bond is the amount owed plaintiff by RSJ. Because of the arbitration agreement and the commencement of arbitration proceedings, the amount owed is an issue for the exclusive determination by the arbitrator (Matter of Aetna Cas. Sur. Co. v Cochrane, 64 N.Y.2d 796, 797-798; Rochester City School Dist. v Rochester Teachers Assn., 41 N.Y.2d 578, 581-583; see, 22 Carmody-Wait 2d, N.Y. Prac §§ 141:57, 141:58, at 800-804; see also, Siegel, N.Y. Prac § 588, at 834-837). Consequently, it appears that Special Term properly stayed the proceedings in this action pending the arbitrator's decision (Armco Steel Corp. v Renago Constr., 34 A.D.2d 887, 888, lv denied 27 N.Y.2d 483).
Order affirmed, with costs. Mahoney, P.J., Weiss, Yesawich, Jr., Levine and Harvey, JJ., concur.