IN RE: ALL METRO HEALTH CARE SERVICES (2008)

In a proceeding pursuant to CPLR article 75 to stay arbitration of certain claims pursuant to a stock purchase agreement, the appeal is from a judgment of the Supreme Court, Nassau County (LaMarca, J.), entered February 22, 2008, which granted the petition.

ORDERED that the judgment is affirmed, with costs.

 “Arbitration is essentially a creature of contract in which the parties themselves charter a private tribunal for the resolution of their disputes and are free to enlarge, restrict, modify, amend or terminate their agreement to arbitrate” (Matter of Instituto De Resseguros Do Brasil v. First State Ins. Co., 221 A.D.2d 266, 266, 634 N.Y.S.2d 79;  see Matter of Schlaifer v. Sedlow, 51 N.Y.2d 181, 185, 433 N.Y.S.2d 67, 412 N.E.2d 1294).   In general, where, as here, there is a broad arbitration clause, “all questions with respect to the validity and effect of subsequent documents purporting to work a modification or termination of the substantive provisions of their original agreement are to be resolved by the arbitrator” (Inryco, Inc. v. Parsons & Whittemore Contrs. Corp., 55 N.Y.2d 666, 667, 446 N.Y.S.2d 930, 431 N.E.2d 291).   However, the parties herein entered into a subsequent agreement containing a provision that effectively imposed a condition precedent on the arbitration clause in the arbitration provision, satisfaction of which is required before the appellant could “commence any action or proceeding [,]” including the arbitration proceeding at issue, against, inter alia, the petitioners herein.   Notwithstanding a broad arbitration clause, the threshold determination of whether a condition precedent to arbitration exists and whether it has been complied with, is for the court to determine (see Matter of Cassone, 63 N.Y.2d 756, 759, 480 N.Y.S.2d 317, 469 N.E.2d 835;  Matter of County of Rockland [Primiano Constr. Co.], 51 N.Y.2d 1, 7, 431 N.Y.S.2d 478, 409 N.E.2d 951;  Matter of Fasano v. Fasano, 134 A.D.2d 589, 521 N.Y.S.2d 491).   Accordingly, the Supreme Court properly granted the petition to stay arbitration.