In an April 5, 2011 decision by Justice Driscoll, the court granted the petitioner’s motion brought by order to show cause for a preliminary injunction, extended a TRO previously entered which enjoined the respondent from, inter alia, providing ADR services within 50 square miles of petitioner’s NY office, and ordered the parties to arbitrate the key disputed issue as to whether the parties’ retainer agreement’s restrictive covenant was enforceable. Recognizing New York’s public policies favoring arbitration and enforcing broad arbitration provisions, and that it was required to make the initial determination as to whether a particular dispute is arbitrable, the court determined that the petitioner’s arbitration demand concerning the enforceability of the restrictive covenant fell within the agreement’s broad arbitration provision requiring the parties to arbitrate “any dispute or controversy arising out of or in connection with the Agreement or any alleged breach thereof.” The respondent sought dismissal of the motion on the grounds that the petitioner was required to bring the order to show cause in New York County, where the respondent had commenced an action seeking a declaratory judgment that the restrictive covenant was unenforceable. The court rejected that argument on the grounds that the respondent had never served the petitioner with the complaint in the New York County plenary action and did not object to venue in Nassau County during the hearing on the TRO.
National Arbitration & Mediation, Inc. v Olsen, Sup Ct, Nassau County, April 5, 2011, Driscoll, J, Index No. 003957-11