Opinion
17066 Index No. 652810/20 Case No. 2022–01092
01-12-2023
CENTENNIAL ELEVATOR INDUSTRIES, INC., Plaintiff–Appellant, v. JRM CONSTRUCTION MANAGEMENT, LLC, Defendant–Respondent.
The Lambos Firm, LLP, Tarrytown (Carol N. Lambos of counsel), for appellant. Clark Guldin, New York (Janesa Urbano of counsel), for respondent.
The Lambos Firm, LLP, Tarrytown (Carol N. Lambos of counsel), for appellant.
Clark Guldin, New York (Janesa Urbano of counsel), for respondent.
Manzanet–Daniels, J.P., Kapnick, Singh, Mendez, Rodriguez, JJ.
Order, Supreme Court, New York County (Louis L. Nock, J.), entered August 19, 2021, which, to the extent appealed from, granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.
The court correctly dismissed the complaint based on the mediation provision in the parties’ master subcontractor agreement (MSA) as incorporated by reference into the purchase order. The mediation provision was enforceable against plaintiff even though plaintiff did not sign the MSA because the language of the purchase order, which plaintiff signed, unambiguously reflected the parties’ intent that the MSA govern the parties’ relationship until the parties formally execute the MSA (see Gabriel Capital, L.P. v. CAIB Investmentbank AG., 28 A.D.3d 376, 378, 814 N.Y.S.2d 66 [1st Dept. 2006], lv dismissed 7 N.Y.3d 922, 827 N.Y.S.2d 690, 860 N.E.2d 992 [2006] ; Liberty Mgt. & Constr. v. Fifth Ave. & Sixty–Sixth St. Corp., 208 A.D.2d 73, 77–79, 620 N.Y.S.2d 827 [1st Dept. 1995] ). Because the MSA required plaintiff to mediate disputes arising from the agreement as a condition precedent to commencing litigation, and plaintiff failed to submit the dispute to mediation before commencing this action, the complaint was correctly dismissed (see Archstone Dev. LLC v. Renval Constr. LLC, 156 A.D.3d 432, 433, 67 N.Y.S.3d 7 [1st Dept. 2017] ; MCC Dev. Corp. v. Perla, 81 A.D.3d 474, 474, 916 N.Y.S.2d 102 [1st Dept. 2011], lv denied 17 N.Y.3d 715, 2011 WL 5526533 [2011] ).
We have considered plaintiff's remaining arguments and find them unavailing.