BSI-BANCA DELLA SVIZZERA v. ENSRA CONSTR

We agree with the IAS Court's finding of affirmative action on petitioner's part sufficient to demonstrate its intent to assume its assignor's obligations under the contract in issue, including the arbitration clause contained therein (see, Matter of Kaufman [Iselin Co. — Crest-Tex Mills], 272 App. Div. 578, 581-582; Matter of Vann v. Kreindler, Relkin Goldberg, 78 A.D.2d 255, 259-260, affd 54 N.Y.2d 936). Petitioner's demand that the contract be assigned directly to it and its retention of a consultant to keep it advised of the progress of the project shows that it was engaged in more than mere monitoring of the project. There being an agreement between the parties to arbitrate, the untimeliness of petitioner's application for a stay of arbitration precludes it from arguing that the agreement is invalid or has not been complied with (CPLR 7503 [c]; see, Matter of Matarasso [Continental Cas. Co.], 56 N.Y.2d 264, 267).

Concur — Carro, J.P., Rosenberger, Wallach, Kupferman and Rubin, JJ.