Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Estate of Thomas P. Curran, Sr, which was pursuant to CFLR 3211 (a) (1) to dismiss the complaint insofar as asserted against it is denied.
That branch of the motion of the defendant Estate of Thomas P. Curran, Sr. (hereinafter the defendant), which was pursuant to CFLR 3211 (a) (1) dismiss the complaint insofar as asserted against it should have been denied. "An agreement to arbitrate is not a defense to an action," and thus, as here, it may not be the basis for a motion to dismiss a complaint based on documentary evidence ( Allied Bldg. Inspectors Int'l. Union of Operating Engrs., Local Union No. 211, AFL-CIO v Office of Labor Relations of City of N.Y., 45 NY2d 735, 738; see CPLR 3211 [a] [1]; Nachman v Jenelo Corp., 25 AD3d 593; Nastasi v Nastasi, 26 AD3d 32, 40-41; Schwartz v Schmergel, 121 AD2d 527).
In light of our determination, the plaintiffs remaining contention is academic.