JT MAGEN CO INC v. TOSCORP INC

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

JT MAGEN & CO., INC., Plaintiff-Appellant, v. TOSCORP, INC., et al., Defendants-Respondents.

Decided: May 18, 2000

WILLIAMS, J.P., TOM, MAZZARELLI and BUCKLEY, JJ. Eric S. Zaidins, for Plaintiff-Appellant. David C. Berg, for Defendants-Respondents.

Order, Supreme Court, New York County (Franklin Weissberg, J.), entered April 2, 1999, which, upon plaintiff's motion for summary judgment in lieu of complaint, granted defendants' cross motion to compel arbitration of whether plaintiff is entitled to recover on the checks in issue, unanimously affirmed, with costs.

Arbitration was properly compelled since the stopped checks in issue were admittedly given by defendants to plaintiff as final payment for construction work performed pursuant to a contract that conditioned final payment upon plaintiff's compliance with the contract and contained a broad arbitration clause covering any controversy arising out of or related to the contract or its breach.   We reject plaintiff's argument that defendants' claims of noncompliant performance should be severed and submitted to arbitration, and judicial relief accorded on the checks since they do not themselves contain an arbitration clause, or refer to any agreement that contains an arbitration clause, and are otherwise on their face straightforward instruments for the payment of money only (see, Rosenblum v. Steiner, 43 N.Y.2d 896, 403 N.Y.S.2d 716, 374 N.E.2d 610;  Muh v. Risher, 38 N.Y.2d 441, 381 N.Y.S.2d 23, 343 N.E.2d 742).

MEMORANDUM DECISION.