151 A.D.2d 362 | N.Y. App. Div. | 1989
Order, Supreme Court, New York County (Eugene Nardelli, J.), entered August 29, 1988, which, upon reargument, vacated and withdrew the decision of the same court dated July 18, 1988, and reinstated an order and an order and judgment (denominated order) of the same court entered June 7, 1988, which prior order and order and judgment granted resettlement of an order entered June 5, 1987 (Alfred Klein, J.), and on resettlement directed, inter alia, certain named parties who had signed arbitration agreements to arbitrate the disputes raised in this action, unanimously modified, on the law, without costs, to the extent of directing that the parties who have signed the partnership and joint venture agreements of 64th Street-Third Avenue Associates, Regency Affiliates, Tower Associates, and Regency Joint Venture arbitrate the disputes raised in this action, pending which this action is stayed, and as modified, affirmed. The appeals from the order and order and judgment of the same court entered June 7, 1988 are dismissed as superseded by the appeal from the order of August 29, 1988, without costs.
This is an action by various partners of 11 real estate partnerships (two of which, Regency Affiliates and Tower Associates, are members of a joint venture known as Regency Joint Venture) who sue individually and derivatively on behalf of the partnerships and joint venture seeking an account
Plaintiff thereafter moved at IAS for resettlement of the prior order which we had affirmed, on the ground that the order did not specifically compel arbitration and did not specifically identify the parties required to arbitrate the dispute. Plaintiffs argued that Regency Joint Venture, Regency Affiliates and Tower Associates should not be compelled to arbitrate because the arbitration agreements governing those entities require the concurrence of 75% of "active partners” before submission of a controversy to arbitration. Further, plaintiffs argued that the pendency of an action for an accounting involving 64th Street-Third Avenue Associates precluded arbitration with respect to that partnership. (See, Maroulis v 64th Street-Third Ave. Assocs., 133 AD2d 584.) The court was persuaded by these arguments, and in an order and order and judgment entered June 7, 1988, the court, inter alia, granted resettlement and directed arbitration, but not with respect to the entities referred to above. Subsequently, in a decision, the court granted reargument and determined that these same entities should in fact proceed to arbitration. Reversing itself yet a second time, in an order entered August 29, 1988, the court again granted reargument, vacated its decision, and reinstated the June 7 orders.
While we believe that resettlement was properly granted so
Nevertheless, whatever the merits of the arguments now raised, they are clearly not properly the subject of a motion for resettlement. Resettlement is the appropriate method to rectify discrepancies between a decision and an order; it may not be used as a substitute for appeal or reargument to raise new substantive arguments. (Foley v Roche, 68 AD2d 558, 566; 2A Weinstein-Korn-Miller, NY Civ Prac ¶ 2221.05.) The proper time to advance these arguments was on argument of the motion prior to this court’s affirmance. The same reasoning bars reconsideration of the stay of this action previously granted and affirmed by this court.
We therefore modify the order of August 29 so as to direct that the partners of 64th Street-Third Avenue Associates, Regency Affiliates, Tower Associates, and Regency Joint Venture proceed to arbitration, pending which the action is stayed. Concur — Murphy, P. J., Sullivan, Carro and Smith, JJ.