In this action seeking to recover an outstanding balance for services rendered, the defendant moves to dismiss the action and/or compel arbitration pursuant to CPLR §§ 3211(1)(a) and 7503. Plaintiff opposes defendant's motion.

Plaintiff commenced this action in February 2006 seeking to recover the outstanding balance for services allegedly rendered by plaintiff to the defendant. In the complaint, plaintiff alleges that the defendant defaulted under the terms of the agreement and that there now remains a balance of $3,320.00. Defendant did not interpose an Answer, but rather, moved pursuant to CPLR § 3211 to dismiss the complaint and compel arbitration pursuant to an arbitration clause in the agreement entered into by the parties.

In opposition, plaintiff contends that although there is an arbitration clause in the subject agreement, the agreement allows for the parties to resolve their claims through other venues, if both parties consent. Plaintiff further contends that pursuing his claim against the defendant in Mount Vernon City Court is the more cost effective resolution of his claim.

Under CPLR 3211(a)(1), a court may dismiss a complaint based upon a defense founded on documentary evidence where the proffered evidence disposes of plaintiff's claim as a matter of law. See Johnson v Chase Manhattan Bank USA, N.A., 2 Misc 3d 1003A (Supt Ct. New York Co. 2004) (citing Leon v Martinez, 84 NY2d 83 (1994); [*2]Bronxville Knolls, Inc. V Webster Town Center Partnership, 221 AD2d 248 (1st Dept 1995); Talbi v ZCWK Assocs., 179 AD2d 475 (1st Dept 1992)).In the instant matter, defendant has argued that an arbitration agreement exists between the parties. Plaintiff has acknowledged that the subject agreement does contain an arbitration clause, however, he contends that arbitrating his claim will not be cost effective and that defendant could refuse to file for arbitration thereby avoiding paying plaintiff indefinitely.

The Court finds that there is no basis for plaintiff's speculative contention that defendant will refuse to arbitrate the instant matter since it is defendant who is seeking to compel arbitration of this matter. Accordingly, the Court finds that the complaint must be dismissed as a matter of law because the action is specifically barred by the terms of the agreement entered into by the parties, which provides for arbitration in the event of a dispute arising out of or relating to the subject agreement. The parties are directed to proceed to arbitration.

This constitutes the Decision and Order of this Court.

The Court considered the following papers on this motion:

Notice of Motion dated May 16, 2006, Memorandum of Law; Response to Motion, dated June 5, 2006; Reply Affirmation dated June 12, 2006.

Dated:March 23, 2010

Mount Vernon, New York

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HON. ADAM SEIDEN

Associate City Judge of Mount Vernon