Opinion
06-27-2017
In re CAPITAL ENTERPRISES CO., Petitioner–Appellant, v. Alvin DWORMAN, Respondent–Respondent.
Morrison Cohen LLP, New York (Alvin C. Lin of counsel), for appellant. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., New York (Christopher J. Sullivan of counsel), for respondent.
Morrison Cohen LLP, New York (Alvin C. Lin of counsel), for appellant.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., New York (Christopher J. Sullivan of counsel), for respondent.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered March 3, 2017, which, to the extent appealed from as limited by the briefs, upon reargument, adhered to the original determination denying petitioner Capital Enterprises Co.'s motion to compel the arbitration of its partnership dissolution claim (including the distribution of assets), unanimously reversed, on the law, without costs, and the motion to compel granted.
Since the alleged oral agreement to sell or transfer partnership assets attempts to modify several substantive provisions of petitioner's partnership agreement concerning the distribution of partnership assets, the broad arbitration provision of the partnership agreement controls the parties' dispute (see Matter of Helmsley [Wien], 173 A.D.2d 280, 569 N.Y.S.2d 672 [1st Dept.1991] ). The merits of the claims, such as the applicability of the statute of frauds, should be determined by the arbitrator (see CPLR 7501 ; Matter of Praetorian Realty Corp. [Presidential Towers Residence], 40 N.Y.2d 897, 898, 389 N.Y.S.2d 351, 357 N.E.2d 1006 [1976] ).
FRIEDMAN, J.P., WEBBER, GESMER, KERN, JJ., concur.