The motion was properly denied in the absence of evidence affirmatively establishing that the parties expressly agreed to arbitrate their disputes ( see, Matter of Waldron [Goddess], 61 N.Y.2d 181, 183). Such evidence is not provided by the agreement between plaintiff and nonparty clearing broker containing an arbitration clause and another clause stipulating that plaintiff's introducing broker is a third-party beneficiary of such agreement. As the IAS Court stated, it is "not obvious" that the third-party beneficiary clause was meant to modify the arbitration clause, which makes no mention of defendant either by name or by function ( cf., McPheeters v. McGinn, Smith Co., 953 F.2d 771, 773; Mowbray v. Moseley, Hallgarten, Estabrook Weeden, 795 F.2d 1111, 1117-1118). Defendant's argument that it is a party to the agreement by definition under the introductory clause thereof defining the clearing broker as including its "affiliates" depends too much upon "implication or subtlety" for purposes of compelling arbitration with a nonsignatory ( Matter of Waldron [Goddess], supra, at 184; see also, TNS Holdings v. MKI Sec. Corp. 92 N.Y.2d 335).
Concur — Williams, J.P., Lerner, Rubin and Saxe, JJ.