General

Helen Curran, Appellant, v. Estate of Thomas P. Curran, Sr., Respondent, et al., Defendants

87 A.D.3d 607928 N.Y.S.2d 463·New York Supreme Court, Appellate Division·2011·NY

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Opinion

Helen Curran, Appellant, v Estate of Thomas P. Curran, Sr., Respondent, et al., Defendants. [928 NYS2d 463] [MAJORITY] That branch of the motion of the defendant Estate of Thomas E Curran, Sr. (hereinafter the defendant), which was pursuant to CELR 3211 (a) (1) dismiss the complaint insofar as asserted against it should have been denied. “An agreement to arbitrate is not a defense to an action,” and thus, as here, it may not be the basis for a motion to dismiss a complaint based on documentary evidence (Allied Bldg. Inspectors Intl. Union of Operating Engrs., Local Union No. 211, AFL-CIO v Office of Labor Relations of City of N.Y., 45 NY2d 735, 738 [1978]; see CPLR 3211 [a] [1]; Nachman v Jenelo Corp., 25 AD3d 593 [2006]; Nastasi v Nastasi, 26 AD3d 32, 40-41 [2005]; Schwartz v Schmergel, 121 AD2d 527 [1986]). In light of our determination, the plaintiffs remaining contention is academic. Skelos, J.E, Belen, Hall and Roman, JJ., concur.