IN RE: WAGNER ACQUISITION CORPORATION

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

IN RE: WAGNER ACQUISITION CORPORATION, Appellant, v. Arthur GIOVE, Sr., et al., Respondents.

Decided: May 26, 1998

Before O'BRIEN, J.P., and SANTUCCI, ALTMAN and FRIEDMANN, JJ. LeBoeuf, Lamb, Greene & MacRae, LLP, New York City (Molly S. Boast, Gallit Schuller, and Richard C. Goldberg, of counsel), for appellant. Nixon, Hargrave, Devans & Doyle, LLP, Garden City (Tydings & Rosenberg, LLP [J. Hardin Marion, Melissa G. Brault, Michael H. Tow, William J. Rizzo, and Joseph J. Kearney], of counsel), for respondents.

In an arbitration proceeding pursuant to CPLR article 75, the petitioner appeals (1) from a decision of the Supreme Court, Nassau County (Murphy, J.), dated March 25, 1997, (2) from an order of the same court, dated March 26, 1997, which denied its motion pursuant to CPLR 7502(c) to preliminarily enjoin the respondents from transferring corporate shares and corporate assets, and dismissed the proceeding, and (3), as limited by its brief, from so much of an order of the same court, dated May 29, 1997, as, upon reargument, adhered to the original determination denying the motion for a preliminary injunction, granted the respondents' motion for a permanent stay of arbitration, and denied the petitioner's cross motion to compel arbitration.

 ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v. Green Constr Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718);  and it is further,

ORDERED that the appeal from the order dated March 26, 1997, is dismissed, as that order was superseded by the order dated May 29, 1997, made upon reargument;  and it is further,

ORDERED that the order dated May 29, 1997, is reversed insofar as appealed from, the petitioner's motion for a preliminary injunction pursuant to CPLR 7502(c) is granted, the respondents' motion for a permanent stay of arbitration is denied, the petitioner's cross motion to compel arbitration is granted, and the order dated March 26, 1997, is vacated;  and it is further,

ORDERED that the petitioner is awarded one bill of costs.

 The petitioner correctly argues that the Supreme Court's concern should have merely been whether the parties made a valid agreement to arbitrate and not whether the contract as a whole was unenforceable (see, Information Sciences v. Mohawk Data Science Corp., 43 N.Y.2d 918, 403 N.Y.S.2d 730, 374 N.E.2d 624;  Matter of Prinze, 38 N.Y.2d 570, 381 N.Y.S.2d 824, 345 N.E.2d 295;  Brown v. Bussey, 245 A.D.2d 255, 666 N.Y.S.2d 15;  Matter of Jeffries v. Ross, 238 A.D.2d 288, 657 N.Y.S.2d 29;  Matter of Fener Realty Co., 182 A.D.2d 436, 582 N.Y.S.2d 163;  Stoianoff v. New Am. Lib., 148 A.D.2d 600, 539 N.Y.S.2d 66).   Here, we are satisfied that the parties did make such an agreement (see, Jeffries v. Ross, supra).   Moreover, the Supreme Court should have granted the appellant a preliminary injunction pursuant to CPLR 7502(c) (see, Matter of Guarini, 233 A.D.2d 196, 650 N.Y.S.2d 4).

MEMORANDUM BY THE COURT.

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