IN RE: Application of AMERICAN CENTURY SERVICES CORPORATION

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

IN RE: Application of AMERICAN CENTURY SERVICES CORPORATION, Petitioner-Respondent, For a Judgment, etc., v. RED OAK SOFTWARE, INC., Respondent-Appellant.

Decided: November 21, 2002

SAXE, J.P., BUCKLEY, ROSENBERGER, LERNER, and GONZALEZ, JJ. Joel S. Weiss, for Petitioner-Appellant. Howard L. Weinreich, for Respondent-Appellant.

Order, Supreme Court, New York County (William Wetzel, J.), entered November 5, 2001, which granted the petition pursuant to CPLR article 75 to permanently stay arbitration of a software license dispute, unanimously affirmed, with costs.

The purchase order generated in connection with the software transaction between petitioner and respondent's predecessor-in-interest, which by its express terms governed the transaction unless a separate written agreement was entered into by the parties, contained no arbitration clause.   Inasmuch as no separate written agreement was entered into, much less one requiring arbitration of the parties' dispute, evidence of the clear commitment to arbitration necessary to support its compulsion was absent and the petition to stay arbitration was properly granted (see Matter of Waldron [Goddess], 61 N.Y.2d 181, 183-184, 473 N.Y.S.2d 136, 461 N.E.2d 273;  CPLR 7503[b] ).

We have reviewed respondent's remaining arguments and find them unavailing.