Supreme Court, New York County, January 31, 2023

Davidoff Hutcher & Citron, LLP, New York City (Steven Appelbaum and Ian Brandt of counsel), for defendants.

Lee Litigation Group, PLLC, New York City (Rony Guldmann of counsel), for plaintiff.

{**80 Misc 3d at 301}Plaintiff is a unit owner in nonparty Towers on the Park Condominium and sues defendants Argo Real Estate LLC and Board of Managers of Towers on the Park on behalf of a class of unit owners for breach of a contract and breach of fiduciary duty, claiming defendants are leasing the condominium's parking spaces at below-market rates. Defendants move to compel arbitration of plaintiff's individual claims and to dismiss this action based on the condominium's bylaws. (CPLR 3211 [a] [1]; 7503 [a].) The court grants defendants' motion as follows.

The bylaws include an arbitration provision:

"ARTICLE XIV. ARBITRATION

"Section 1. General Procedure. Any matter required or permitted to be determined by arbitration pursuant to the terms of the Condominium Documents shall be submitted for resolution before a single arbitrator in a proceeding held in New York City, New York in [*2]accordance with the then existing rules of the American Arbitration Association or any successor organization thereto." (Aff of Greta Pryor, exhibit A.)

Defendants contend that plaintiff's claims must be arbitrated because they arise from defendants' alleged violation of the bylaws. Plaintiff maintains that its claims are not presumptively arbitrable, because the bylaws contemplate judicial resolution of disputes as well as arbitration and do not expressly designate that the type of claims plaintiff alleges are to be arbitrated. (Id.)

Both parties overlook, however, whether the court maintains authority to determine the arbitrability of plaintiff's claims. Although arbitrability is typically a question for the court, the bylaws' arbitration provision shows a "clear and unmistakable" intent that an arbitrator is to determine the arbitrability of this action. (ALP, Inc. v Moskowitz, 204 AD3d 454, 456 [1st Dept 2022]; Teshabaeva v Family Home Care Servs. of Brooklyn & Queens, Inc., 198 AD3d 500, 501 [1st Dept 2021].) The bylaws direct that "[a]ny matter required or permitted to be determined by arbitration . . . shall be submitted for resolution . . . in accordance with the then existing rules of the American Arbitration Association." (Pryor aff, exhibit A, bylaws art XIV, § 1.) This broad provision expressly incorporates all the American Arbitration Association's rules, including Commercial Arbitration Rules rule R-7 (a), that an "arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of{**80 Misc 3d at 302} the arbitration agreement or to the arbitrability of any claim or counterclaim." (Emphasis added.) Consequently, even though plaintiff insists that the bylaws' arbitration provision is not applicable to plaintiff's claims, this question is for the arbitrator to decide, pursuant to the parties' written agreement embodied in the bylaws. (Strongbow Consulting Group LLC v PricewaterhouseCoopers LLP, 195 AD3d 532, 532 [1st Dept 2021]; Anima Group, LLC v Emerald Expositions, LLC, 191 AD3d 572, 573 [1st Dept 2021]; Matter of WN Partner, LLC v Baltimore Orioles L.P., 179 AD3d 14, 16 [1st Dept 2019].)

Finally, while the complaint alleges classwide claims, the parties further fail to address whether this action may proceed as a class arbitration. Yet another set of American Arbitration Association rules resolves this question. Under rule 3 of the Supplementary Rules for Class Arbitrations, "the arbitrator shall determine as a threshold matter, in a reasoned, partial final award on the construction of the arbitration clause, whether the applicable arbitration clause permits the arbitration to proceed on behalf of or against a class." Thus an arbitrator likewise shall determine the availability of class arbitration in the first instance.

For the reasons explained above, the court grants defendants' motion to compel arbitration of plaintiff's claims in this action and dismisses plaintiff's complaint without prejudice. (CPLR 3211 [a] [1]; 7503 [a].)