Delos Megacore Ltd. v. Omega Investments Ltd. , 152 A.D.3d 417 ( 2017 )

Delos Megacore Ltd. v Omega Invs. Ltd. (2017 NY Slip Op 05515)

Delos Megacore Ltd. v Omega Invs. Ltd.

2017 NY Slip Op 05515

Decided on July 6, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 6, 2017
Tom, J.P., Richter, Manzanet-Daniels, Mazzarelli, Gische, JJ.

653732/16 -4421N 4420 4419

[*1] Delos Megacore Ltd., Plaintiff-Appellant,

v

Omega Investments Ltd., Defendant-Respondent.

Reitler Kailas & Rosenblatt LLC, New York (Leo G. Kailas of counsel), for appellant.

Brown Gavalas & Fromm LLP, New York (Peter Skoufalos of counsel), for respondent.

Orders, Supreme Court, New York County (Charles E. Ramos, J.), entered February 10, 2017 and February 13, 2017, which granted defendant's motion to dismiss or stay this action in favor of arbitration pending in London, and order, same court and Justice, entered March 15, 2017, which, to the extent appealable, denied defendant's motion to modify or, alternatively, for leave to renew, unanimously affirmed, without costs.

The motion court properly stayed this action in favor of pending arbitration, since the decision in the arbitration proceeding could dispose of the issues in this action (see CPLR 2201; Doronin v Amanat, 133 AD3d 524 [1st Dept 2015]; JP Foodservice Distribs. v PricewaterhouseCoopers, 291 AD2d 323 [1st Dept 2002]). In this action, plaintiff seeks to recover on a promissory note; at issue in the earlier commenced arbitration proceeding is the propriety of a subsequent agreement between the parties that includes a provision releasing defendant from its obligations under the note.

Contrary to defendant's arguments, issues of arbitrability were properly resolved by the London arbitration tribunal pursuant to the law governing the tribunal; the parties' subsequent agreement provided that English law would apply to any disputes arising under the agreement and would be addressed in arbitration in London in accordance with the rules of the London Maritime Arbitrators' Association.

The purportedly "new" evidence that defendant submitted in its renewal motion was already before the court and, in any event, would not change the original determination (see CPLR 2221[e]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 6, 2017

CLERK