Task Associates, Inc. v. Delhi Steel Corp. , 145 A.D.2d 927 ( 1988 )

— Order unanimously reversed on the law without costs, petition granted, and arbitration stayed pending determination of evidentiary hearing and matter remitted to Supreme Court, Onondaga County, for further proceedings, in accordance with the following memorandum: Petitioner has appealed from the denial of its application for a stay of arbitration. Although petitioner failed to make its application within 20 days of service of the demand by Delhi for arbitration (CPLR 7503), a stay is not precluded if the parties never agreed to arbitrate (Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264). Each party claims that a different document represents the agreement between them. Respondent’s version contains an unconditional agreement to arbitrate, but petitioner’s does not. Because a party cannot be compelled to arbitrate a commercial dispute absent an express agreement to do so (Matter of Marlene Indus. Corp. [Cornac Textiles] 45 NY2d 327), the merit of petitioner’s application can be decided only after a determination of which document is the contract between them. Special Term failed to resolve this factual issue, and the record is not sufficient to allow us to make such a determination. Accordingly, we remand this matter for a determination of this factual issue. Petitioner’s application is granted, and arbitration is stayed pending the outcome of the hearing (see, Matter of Princeton Rayon Corp. [Gayley Mill Corp.] 309 NY 13; National Grange Mut. Ins. Co. v Diaz, 111 AD2d 700; Matter of Country-Wide Ins. Co. [Leff], 78 AD2d 830). (Appeal from order of Supreme Court, Onondaga County, Hayes, J. — stay arbitration.) Present — Callahan, J. P., Denman, Green, Pine and Balio, JJ.