SMALL POWER PRODUCERS INC v. << (1997)

 Supreme Court erred in granting petitioner's application for an order pursuant to CPLR 7503(b) permanently staying arbitration on the ground that a prior arbitration award is res judicata of the issues raised in the instant proceeding.   The doctrine of res judicata applies only to issues resolved in the prior arbitration (see, Rembrandt Indus. v. Hodges Intl., 38 N.Y.2d 502, 504, 381 N.Y.S.2d 451, 344 N.E.2d 383);  the parties are barred “from relitigating only those matters which were actually contested and therefore determined by the award” (Matter of Cine-Source, Inc. v. Burrows, 180 A.D.2d 592, 594, 581 N.Y.S.2d 9).   In the instant proceeding, there are disputed factual issues whether respondent's entitlement to a termination charge under Article VI of the parties' agreement was resolved in the prior arbitration (see, Burbank Broadcasting Co. v. Roslin Radio Sales, 99 A.D.2d 976, 977, 473 N.Y.S.2d 13).   Those issues are within the exclusive province of the arbitrator to resolve (see, Matter of City School Dist. v. Tonawanda Educ. Assn., 63 N.Y.2d 846, 848, 482 N.Y.S.2d 258, 472 N.E.2d 34;  Matter of Port Auth. of N.Y. & N.J. v. Port Auth. Police Sergeants Benevolent Assn., 225 A.D.2d 503, 639 N.Y.S.2d 808;  Lopez v. Parke Rose Mgt. Sys., 138 A.D.2d 575, 577, 526 N.Y.S.2d 156).   We therefore vacate the permanent stay of arbitration and direct the parties to proceed to arbitration.

Order and judgment insofar as appealed from unanimously reversed on the law without costs, stay vacated and parties directed to proceed to arbitration.

MEMORANDUM: