202 A.D.2d 383 (1994)

608 N.Y.S.2d 516

Stephen Baron et al., Respondents, v. Stewart Michael Design, Inc., Appellant

Appellate Division of the Supreme Court of the State of New York, Second Department.

March 7, 1994

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the parties are directed to proceed to arbitration.

The parties entered into a contract which contained an arbitration clause. After the defendant gave notice of its intent to terminate the contract and seek arbitration, the plaintiffs commenced this action, seeking damages for breach of contract, fraud, conversion, and negligence. The record, which the parties stipulate is complete, is bare of pleadings or motion papers demonstrating that the plaintiffs sought rescission. Under these circumstances, the Supreme Court should have directed the parties to proceed to arbitration (see, Matter of Bichler v 100 Lexington Ave. Corp., 4 A.D.2d 949).


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