IN RE: C & L Concrete Corp. (2026)

Argued—March 2, 2026

DECISION & ORDER

C/

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration, Shawmut Woodworking & Supply, Inc., appeals from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated May 22, 2025.  The order, insofar as appealed from, granted that branch of the petition which was to permanently stay arbitration.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In June 2020, Shawmut Woodworking & Supply, Inc. (hereinafter Shawmut), and City Harvest, Inc. (hereinafter City Harvest), executed a contract for the design and construction of a food distribution warehouse in Brooklyn.  Shawmut's subcontractor, Starlite Building Services, Inc. (hereinafter Starlite), and C & L Concrete Corp. (hereinafter C & L) executed a contract for certain demolition work.

In September 2024, City Harvest served a demand for arbitration upon Shawmut to recover damages for Shawmut's alleged defective, incomplete, and untimely work related to the design and construction of the warehouse.  Shawmut moved to join C & L as a party to the arbitration proceeding.  C & L commenced this proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration.  Shawmut opposed the petition.  In an order dated May 22, 2025, the Supreme Court, among other things, granted that branch of the petition.  Shawmut appeals.

“ ‘Arbitration is a matter of contract, grounded in agreement of the parties' ” (Matter of Northeast & Cent. Contrs., Inc. v Quanto Capital, LLC, 203 AD3d 925, 927, quoting Matter of Belzberg v. Verus Invs. Holdings Inc., 21 NY3d 626, 630).  “[A]s a general matter, on a motion to compel or stay arbitration, a court must determine, ‘in the first instance ․ whether parties have agreed to submit their disputes to arbitration’ ” (Revis v. Schwartz, 192 AD3d 127, 134, affd 38 NY3d 939, quoting Sisters of St. John the Baptist, Providence Rest Convent v Geraghty Constructor, 67 N.Y.2d 997, 999).  “[B]y agreeing to arbitrate[,] a party waives in large part many of his [or her] normal rights under the procedural and substantive law of the State, and it would be unfair to infer such a significant waiver on the basis of anything less than a clear indication of intent” (Matter of Marlene Indus.  Corp. [Carnac Textiles], 45 N.Y.2d 327, 333–334).  “Thus, a party will not be compelled to arbitrate and, thereby, to surrender the right to resort to the courts, absent evidence which affirmatively establishes that the parties expressly agreed to arbitrate their disputes” (Ferarro v. East Coast Dormer, Inc., 209 AD3d 717, 718 [internal quotation marks omitted] ).

Here, C & L set forth evidentiary facts and submitted documentary evidence sufficient to justify the permanent stay of arbitration.  The disputes provision of the contract between Starlite and C & L provides, inter alia, that “[a]ll disputes are subject to mediation” and “[a]ny disputes not resolved by mediation shall be resolved by litigation.”  Thus, contrary to Shawmut's contention, the contract does not affirmatively establish that C & L expressly agreed to arbitrate its disputes (see Donnelly v. Teachers Fed. Credit Union, 228 AD3d 831, 832;  Ferarro v. East Coast Dormer, Inc., 209 AD3d at 718).  Moreover, insofar as that same provision permits Shawmut to “submit the matter to arbitration in a jurisdiction of its choosing,” it is void (see General Business Law § 757[1] ).  In opposition, Shawmut failed to rebut C & L's evidentiary showing.

Accordingly, the Supreme Court properly granted that branch of the petition which was to permanently stay arbitration (see Matter of Northeast & Cent. Contrs., Inc. v Quanto Capital, LLC, 203 AD3d at 927;  Matter of R.C. Metell Constr., Inc. v Sandler, 189 AD3d 1415, 1417).

The parties' remaining contentions need not be reached in light of our determination.

LASALLE, P.J., CHRISTOPHER, LANDICINO and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court