Curran v. Estate of Curran — 87 A.D.3d 607

Majority

p. 607

Helen Curran, Appellant, v Estate of Thomas P. Curran, Sr., Respondent, et al., Defendants.

[928 NYS2d 463]

That branch of the motion of the defendant Estate of Thomas E Curran, Sr. (hereinafter the defendant), which was pursuant to CELR 3211 (a) (1) dismiss the complaint insofar as asserted against it should have been denied. “An agreement to arbitrate is not a defense to an action,” and thus, as here, it may not be the basis for a motion to dismiss a complaint based on documentary evidence (Allied Bldg. Inspectors Intl. Union of Operating Engrs., Local Union No. 211, AFL-CIO v Office of Labor Relations of City of N.Y., 45 NY2d 735 , 738 [1978]; see CPLR 3211 [a] [1]; Nachman v Jenelo Corp., 25 AD3d 593 [2006]; Nastasi v Nastasi, 26 AD3d 32 , 40-41 [2005]; Schwartz v Schmergel, 121 AD2d 527 [1986]).

In light of our determination, the plaintiffs remaining contention is academic. Skelos, J.E, Belen, Hall and Roman, JJ., concur.

Cases cited

Allied Building Inspectors International Union of Operating Engineers v. Office of Labor Relations 45 NY2d 735 N.Y. 1978-07-13 at 738 p. 607
Nachman v. Jenelo Corp. 25 AD3d 593 N.Y. App. Div. 2006-01-17 p. 607
Nastasi v. Nastasi 26 AD3d 32 N.Y. App. Div. 2005-11-14 at 40-41 p. 607