Ambassador Construction Co. v. 40 Wall Street Development Assoc., L. L. C. , 693 N.Y.S.2d 137 ( 1999 )

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, doing business as Ma-rant Enterprises and EM Financial Solutions, L. L. C. (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. (Ambassador) for partial summary judgment in the amount of $40,000, unanimously affirmed, without costs.

The IAS Court correctly denied Mar ant’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 AD2d 311; Two Cent. Tower Food v Pelligrino, 212 AD2d 441, 442), defendants’ right to arbitrate is barred by the failure to comply with a clearly applicable contractual condition precedent (see, Matter of Asphalt Green [Herbert Constr. Co.], 210 AD2d 21). 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 NY2d 1), 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 AD2d 149).

The grant of partial summary judgment in favor of plaintiff was appropriate, given the assertions made by defendant Ma-rant 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. Concur — Sullivan, J. P., Rosenberger, Tom, Saxe and Buckley, JJ.