IN RE: SSL INTERNATIONAL (2007)

Order and judgment (one paper), Supreme Court, New York County (Faviola A. Soto, J.), entered July 26, 2006, which denied petitioners-appellants' application to stay arbitration, granted respondent's cross motion to compel arbitration, and dismissed the petition, unanimously affirmed, with costs.

 Having moved this Court, albeit unsuccessfully, for a stay of arbitration pending the appeal, appellants did not waive their right to pursue the appeal (see Matter of Commerce & Indus. Ins. Co. v. Nester, 90 N.Y.2d 255, 264, 660 N.Y.S.2d 366, 682 N.E.2d 967 [1997] ).

 The court's determination to compel arbitration was appropriate.  Respondent made a sufficient evidentiary showing that appellants exploited the 1997 license agreement between respondent and Silipos, Inc., by marketing products that utilized technology covered by the license agreement.  Accordingly, respondent established that appellants, non-signatories to the license agreement, were estopped from seeking to avoid an arbitration provision contained in the license agreement since they derived direct benefits from said agreement (see HRH Construction LLC v. Metropolitan Transp. Auth., 33 A.D.3d 568, 569, 823 N.Y.S.2d 140 [2006];  see also Deloitte Noraudit A/S v. Deloitte Haskins & Sells, U.S., 9 F.3d 1060, 1064 [2d Cir.1993] ).  Appellants, by not coming forward with any evidence contesting respondent's position, failed to carry their burden of showing sufficient facts to establish justification for the stay (see Matter of AIU Ins. Co. v. Cabreja, 301 A.D.2d 448, 449, 754 N.Y.S.2d 253 [2003] ).