In a March 15, 2011 decision by Justice Demarest, the court denied the plaintiff’s motion for an order compelling arbitration because the plaintiff failed to comply with a condition precedent. The plaintiff sought arbitration to determine whether the defendant unreasonably withheld consent to a sublease under the parties’ lease agreement. The court found that the lease agreement provided that the plaintiff was required to give the defendant notice of its intent to submit to arbitration the question of whether such consent was unreasonable withheld within 10 days of receiving notice from the defendant of its refusal to consent, but did not give such timely notice. The court rejected the plaintiff’s argument that the defendant waived the 10-day notice requirement by its continued acceptance of rent payments, upon finding that such waiver was withdrawn.
Red Hook Meat Corp. v Bogopa-Columbia, Inc., Sup Ct, Kings County, March 15, 2011, Demarest, J, Index No. 28567/10