IN RE: NATIONAL BANK LIMITED

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

IN RE: NATIONAL BANK LIMITED, Petitioner-Respondent, v. SECURITY MANAGEMENT COMPANY, LTD., Respondent-Appellant.

Decided: May 18, 2006

BUCKLEY, P.J., MAZZARELLI, FRIEDMAN, SWEENY, McGUIRE, JJ. Martin L. Brothers, North Salem, for appellant. H. Taufiq Choudhury, P.C., New York (Robert I. Goodman of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Charles J. Tejada, J.), entered January 23, 2006, granting petitioner's application to stay arbitration, unanimously affirmed, with costs.

Respondent was not an intended beneficiary of the agreement to which it was not a party, and thus was not entitled to invoke its arbitration clause.   The best evidence of an intent to benefit a third party is the language of the agreement itself (243-249 Holding Co. v. Infante, 4 A.D.3d 184, 185, 771 N.Y.S.2d 651 [2004], and nothing therein other than the solitary mention of respondent's commission, which was separately provided for in another agreement that did not contain an arbitration clause, even suggests, let alone demonstrates, that the agreement was intended for its benefit.   Choctaw Generation Ltd. Partnership v. American Home Assur. Co., 271 F.3d 403 [2d Cir.2001] and Matter of Groval Knitted Fabrics (Alcott), 72 Misc.2d 513, 339 N.Y.S.2d 58 [1971], affd. 39 A.D.2d 524, 330 N.Y.S.2d 606 [1972], affd. 31 N.Y.2d 796, 339 N.Y.S.2d 117, 291 N.E.2d 395 [1972] ), upon which respondent relies, are distinguishable on their facts, since the rights of the nonparties seeking arbitration in those cases were dependent on the terms of the agreements containing the arbitration clauses;  we note in this regard that the inquiry is “fact-specific” (see JLM Indus. v. Stolt-Nielsen SA, 387 F.3d 163, 178 [2d Cir.2004] ).

We have considered respondent's other contentions and find them unavailing.