Prime Realty Holdings Co. v. Station Plaza Co.

— In a proceeding pursuant to CPLR article 75 to stay arbitration, the petitioner appeals from so much of an order of the Supreme Court, Nassau County (Harwood, J.), dated July 23, 1985, as denied its application to stay arbitration and granted the respondent’s cross motion to compel arbitration.

Order affirmed insofar as appealed from, with costs.

Special Term did not err in denying the petitioner’s application to stay arbitration based upon its determination that *142there was no condition precedent to arbitration (see, Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 7). Its finding that the contractual limitation in section 4.08 of the parties’ sublease was applicable only to a right reserved by the respondent landlord to audit the petitioner tenant’s books and records is fair and reasonable (see, Farrell Lines v City of New York, 30 NY2d 76, 83). The arbitration clause, also contained in section 4.08 of the sublease, broadly covered "any dispute as to 'Gross Collections’ ”, and contained no express contractual limitation constituting a condition precedent to arbitration (see, Matter of County of Rockland [Primiano Constr. Co.] supra).

We do not agree with our dissenting colleague, for we find the contractual language in Silverstein Props. v Paine, Webber, Jackson & Curtis (65 NY2d 785) to be distinguishable. The notice provision in that case required written notice by the tenant in order to dispute what otherwise constituted a final determination of real estate taxes and expenses billed to the tenant by the landlord. The requirement of notice was not ambiguous and could be applied only to the right to proceed to arbitration. The contract contained no other provision for which notice could be required. In contrast, the notice requirement at bar was ambiguous, as it was not clear from the contractual language precisely what action was conditioned upon notice. The notice requirement could have applied to the landlord’s right to inspect the tenant’s books of account and records to verify the tenant’s statement of gross collections, or to the landlord’s right to proceed to arbitration. "A cardinal principle governing the construction of contracts is that the entire contract must be considered and, as between possible interpretations of an ambiguous term, that will be chosen which best accords with the sense of the remainder of the contract” (see, Rentways, Inc. v O’Neill Milk & Cream Co., 308 NY 342, 347). The relevant sentence in section 4.08 of the sublease concerning arbitration states: "In the case of any dispute as to 'Gross Collections’ such dispute shall be determined by arbitration under the provisions of article 20.” Article 20 of the sublease does not make notice of dispute a condition precedent to arbitration. The only condition stated in section 20.01 of the sublease is that the particular lease provision sought to be arbitrated contain an express provision stating that it is arbitrable. Special Term’s resolution of the ambiguity was in accord with the general rule of construction, as it gave effect to both section 4.08 and section 20.01 of the sublease. Accordingly, we affirm the order insofar as it is appealed from. Gibbons, Kooper and Spatt, JJ., concur.