AMBASSADOR CONSTRUCTION CO INC v. Charlene F. Marant, etc., et al., Defendants-Appellants.

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

AMBASSADOR CONSTRUCTION CO., INC., Plaintiff-Respondent, v. 40 WALL STREET DEVELOPMENT ASSOC., LLC, et al.  Defendants, Charlene F. Marant, etc., et al., Defendants-Appellants.

Decided: August 05, 1999

SULLIVAN, J.P., ROSENBERGER, TOM, SAXE and BUCKLEY, JJ. Martin Szold, for Plaintiff-Respondent. Daniel Gildin, for Defendants-Appellants.

Judgment, Supreme Court, New York County (Robert Lippmann, J.), entered January 29, 1999, which, insofar as appealed from, denied the motion of defendants Charlene F. Marant d/b/a Marant Enterprises and EM Financial Solutions, LLC (collectively, “Marant”) to permanently stay the action and refer the matter to arbitration, and granted that part of the cross-motion of plaintiff Ambassador Construction Co., Inc.'s (“Ambassador”) for partial summary judgment in the amount of $40,000, unanimously affirmed, without costs.

 The IAS court correctly denied Marant's motion to permanently stay this action to foreclose a mechanic's lien and compel arbitration.   Although no waiver of arbitration occurred (see, Braun Equip. Co. v. Meli Borelli Assocs., 220 A.D.2d 311, 632 N.Y.S.2d 550;  Two Cent. Tower Food v. Pelligrino, 212 A.D.2d 441, 442, 622 N.Y.S.2d 701), defendants' right to arbitrate is barred by the failure to comply with a clearly applicable contractual condition precedent (see, Matter of Asphalt Green, Inc. [Herbert Constr. Co.], 210 A.D.2d 21, 618 N.Y.S.2d 810).   The question of whether a condition precedent has been complied with is generally an issue for the courts (see, Matter of County of Rockland [Primiano Constr. Co.], 51 N.Y.2d 1, 431 N.Y.S.2d 478, 409 N.E.2d 951), particularly where the question of whether the condition precedent has been satisfied can be determined prior to resolution of the substantive claims (compare, Matter of Calvin Klein, Inc. [G.P. Winter Assocs.], 204 A.D.2d 149, 611 N.Y.S.2d 549).

 The grant of partial summary judgment in favor of plaintiff was appropriate, given the assertions made by defendant Marant on the motion.   Nor may plaintiff's right to payment be negated, under the circumstances, by its conceded inability to obtain an Executed Architect's Certificate for Payment.