Inryco, Inc. v. Parsons & Whittemore Contractors Corp.

Silverman, J.,

dissents in part in a memorandum as follows: I would modify the order appealed from so as to deny the motion for a stay of arbitration in toto and permit the parties to submit to the arbitrator all questions relating to the alleged oral agreement. We are all agreed that so ■much of the order appealed from as permits defendants to raise as an arbitrable issue the release or termination of rights by a superseding agreement should be affirmed. To the extent that the alleged oral agreement goes beyond that, it is merely an agreement as to how plaintiff shall perform its obligations under the five written contracts which contain arbitration clauses. In this respect, the oral agreement is no different from the modifications of details and corrections of work that commonly occur in the course of performance of construction contracts. It is thus merely an attempted modification of the written contracts which are concededly subject to arbitration; and issues arising under such a modification are also subject to arbitration. Whether the1 alleged oral modification is valid or not is a question for the arbitrators on which, obedient to the proscription of CPLR 7501, I express no opinion.