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Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of METAMORPHOSIS CONSTRUCTION CORPORATION, Petitioner-Respondent, For an Order, etc., v. Jeffrey GLEKEL, et al., Respondents-Appellants.

Decided: February 05, 1998

Before NARDELLI, J.P., and WALLACH, WILLIAMS and MAZZARELLI, JJ. Donald J. Carbone, for petitioner-respondent. Jeffrey Glekel, for respondents-appellants.

Judgment, Supreme Court, New York County (William Leibovitz, J.), entered July 16, 1997, which granted petitioner's application for a permanent stay of arbitration with respect to two counterclaims and for costs, including attorney's fees, pursuant to 22 NYCRR part 130, unanimously affirmed, with costs.

It is well settled that a party will not be compelled to arbitrate absent evidence that affirmatively establishes an express agreement to do so (see, Matter of Waldron [Goddess], 61 N.Y.2d 181, 473 N.Y.S.2d 136, 461 N.E.2d 273).   The court properly stayed arbitration of the counterclaim against petitioner's president since he did not contract with respondent or agree to arbitration in his individual capacity (see, Matter of Jevremov [Crisci], 129 A.D.2d 174, 517 N.Y.S.2d 496).  “[C]onflicting allegations as to the real intent of the parties herein are insufficient to create a triable issue in the face of [the corporate president's] signing of the contract in his official capacity only” (id., at 176-77, 517 N.Y.S.2d 496), and the court properly found that the contrary interpretation urged by respondents conflicted with reason and experience (see, Salzman Sign Co. v. Beck, 10 N.Y.2d 63, 66-67, 217 N.Y.S.2d 55, 176 N.E.2d 74).

The court's determination that respondents' conduct was frivolous within the meaning of 22 NYCRR 130-1.1(c), and consequent award of costs, including reasonable attorneys' fees and disbursements, was not an improvident exercise of discretion and therefore should not be disturbed (see, McCue v. McCue, 225 A.D.2d 975, 977, 639 N.Y.S.2d 551).


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