IN RE O'CONNELL, INC. v. LOOMS

Although the parties' agreement employs the word "mediate" rather than "arbitrate", it does provide that "[t]he proceedings shall be conducted as the mediator directs, with written findings", that "such findings are agreed to be enforceable in any court with jurisdiction over the [losing] party", and that "[c]osts of mediation shall be borne by the [losing] party". We agree with the IAS Court that such language sufficiently indicates an intention to arbitrate rather than mediate ( see, Matter of Mencher [Abeles Kahn], 274 App Div 585, 588). Questions unrelated to whether the parties agreed to submit the dispute to arbitration, including whether petitioner abided by the arbitrator-selection process in good faith, must be left to the arbitrator ( see, Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co., 37 NY2d 91, 96).

Due to the death of retired Judge Evans, a new arbitrator must be appointed. If the parties cannot agree upon the selection of a new arbitrator, the IAS Court shall make such appointment ( see, CPLR 7504).