On December 2, 2021, the First Department issued a decision in Flowcon, Inc. v. Andiva LLC, 2021 NY Slip Op. 06756, holding that in arbitration under the AAA rules, the decision on whether a claim is arbitrable is for the arbitrator, not the courts, explaining:
The AAA’s Construction Industry Arbitration Rules provide that the arbitration tribunal shall rule on its own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement. Thus, the threshold issue of the arbitrability of Flowcon’s claims alleging nonpayment is one for the arbitrator, not the courts, particularly given the parties’ broad arbitration clause. To the extent Andiva argues that arbitration would usurp the court’s gatekeeper role of ruling upon the validity of a lien and undermine the public policy underlying the remedies afforded a lienee under Lien Law §§ 39 and 39-a since its allegation of lien exaggeration would be effectively resolved by an arbitrator rather than a court, the argument is unavailing. This Court has held that an arbitrator’s decision as to the value of labor and materials is conclusive as to all parties to the arbitration but not conclusive as to the validity of the mechanic’s lien itself.
(Internal quotations and citations omitted) (emphasis added).