IN RE: Application of OSHMAN (1997)

Judgment, Supreme Court, New York County (Barbara Kapnick, J.), entered on or about June 30, 1997, which, inter alia, denied petitioners' application to stay arbitration and granted respondent's cross motion to compel arbitration, unanimously affirmed, with costs.

There is no dispute that petitioners Theodore Oshman, Matthew Oshman, Hugh J. Helfenstein and respondent entered into a valid partnership agreement on December 22, 1992, providing that all disputes regarding the agreement were to be resolved by arbitration.   While there are factual issues as to whether this agreement was subsequently cancelled by mutual oral agreement and a new partnership agreement entered into excluding an arbitration provision, such issues are properly to be determined by the arbitrator (cf., Matter of Primex Intl. Corp. v. Wal-Mart Stores, 89 N.Y.2d 594, 657 N.Y.S.2d 385, 679 N.E.2d 624).   This is the case even though petitioners Stuart D. Schwartz and Charles J. Mirisola were not parties to the 1992 agreement (see, Matter of Vann v. Kreindler, Relkin & Goldberg, 54 N.Y.2d 936, 445 N.Y.S.2d 139, 429 N.E.2d 817).

We have considered petitioners' remaining contentions and find them to be without merit.

MEMORANDUM DECISION.