Rose v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 57 A.D.2d 553 ( 1977 )

In an action, inter alia, to recover damages as the result of certain securities transactions, in which defendant’s application to .compel arbitration had been granted, defendant appeals (1) from an order of the Supreme Court, Nassau County, dated May 10, 1976, which granted plaintiff’s motion for reargument and, upon reargument, denied its motion to stay the action and compel arbitration and (2) as limited by its brief, from so much of a further order of the same court, dated August 10, 1976, as, upon granting its motion for reargument, adhered to the determination dated May 10, 1976. Appeal from the order dated May 10, 1976 dismissed as academic, without costs or disbursements. That order was superseded by the order dated August 10, 1976 (see Matter of Board of Educ. v Clarkstown Teachers Assn., 47 AD2d 628). Order dated August 10, 1976 reversed insofar as appealed from, on the law, without costs or disbursements, and proceeding remitted to Special Term for further proceedings not inconsistent herewith. The plaintiff’s affidavits submitted to the Special Term establish a "substantial question” as to whether he knowingly and intentionally entered into an agreement to arbitrate any disputes which he might have with the defendant. This question should be tried by the Special Term (see CPLR 7503, subd [a]; Matter of Prinze [Jones], 38 NY2d 570, 574). Margett, Acting P. J., Shapiro, Titone and O’Connor, JJ., concur.