The motion court correctly invoked the general rule articulated inFirst Options v. Kaplan ( 514 U.S. 938, 944-945) that, in deciding whether the parties agreed to arbitrate a certain matter, including arbitrability, courts should apply ordinary state contract law. However, the motion court overlooked the "important qualification" to the usual rule favoring arbitration, namely the presumption that a court, not an arbitrator, will decide an arbitrability question (id.); such qualification is applicable when deciding whether a party has agreed that arbitrators should decide arbitrability (id.). As the Supreme Court later noted, a disagreement about whether an arbitration clause in a concededly binding contract applies to a particular type of controversy (such as the change order dispute here) is for the court to determine (Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79). This is to be contrasted with procedural "threshold" or "gateway" issues that are properly determined by the arbitrator.
Rather than remand the matter to the motion court for determination of the issue of arbitrability, in the interest of judicial economy, we decide the issue and determine that section 13.1 of the agreement clearly sets forth that change orders are subject to arbitration before JAMS. Section 13.1 refers to failure to resolve "any dispute . . . arising under or relating to" the agreement between the parties, and the later portion of the section makes clear that change order disputes under section 8.2 that remain unresolved "pursuant to . . . Section 13.1" should be decided by JAMS.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.