Upon the following papers read on these motions to dismiss and to quash ; Notice of Motion and supporting papers19-23; 44-54; Notice of Cross Motion and supporting papers33-39 ; Answering Affidavits and supporting papers 57; 58; 59 ; Replying Affidavits and supporting papers 68; 69; Other 75; 76-77 ; it is,

ORDERED that the branches of the motion by the defendants Patricia O'Brien and 328 Main LLC (001) and the cross motion by the defendant Jennifer O'Brien (002) which are for an order staying these proceedings and compelling the plaintiff to proceed to arbitration are granted; and it is further

ORDERED that the branches of the motion by the defendants Patricia O'Brien and 328 Main LLC (001) and the cross motion by the defendant Jennifer O'Brien (002) which are to dismiss the complaint are referred to the arbitrator; and

ORDERED that the branch of the motion by the defendants Patricia O'Brien and 328 Main LLC (003) which is for an order quashing subpoenas served on third parties Taxbuzz, Squareup, Venmo, Chase Bank, and JP Morgan Chase Bank is granted; and it is further

ORDERED that the motion by the defendants Patricia O'Brien and 328 Main LLC (003) is otherwise denied.

On September 1, 2016, the plaintiff entered into an agreement with the defendant Pat O'Brien (s/h/a Patricia O'Brien) to purchase her accounting practice. The agreement provided that Pat O'Brien would provide consulting services to the practice during a transition period and that the defendant Jennifer O'Brien would work for the practice for at least one year. The agreement contained an arbitration clause. It was signed by the plaintiff and Pat O'Brien and had a signature line for Jennifer O'Brien, but she did not actually sign the agreement.

On August 24, 2020, the plaintiff commenced this action alleging that, between September 2016 and June 2020, the defendants diverted client fees from the practice to themselves. The complaint contains nine causes of action including, inter alia, breach of contract, fraud, conversion, and unjust enrichment. The defendants Pat O'Brien and 328 Main LLC ^[FN1] move to dismiss the complaint or to stay the action and compel the plaintiff to proceed to arbitration if the complaint is not dismissed. The defendant Jennifer O'Brien cross moves for the same relief. In opposition, the plaintiff contends that the scope of the arbitration clause does not include the misconduct alleged in the complaint and that it cannot be compelled to arbitrate with the defendants Jennifer O'Brien and 328 Main LLC because they did not sign the agreement.

The arbitration clause in the parties' agreement provides, in pertinent part, as follows:

"Any controversy or claim arising out of or relative to this AGREEMENT, or the breach thereof, shall be submitted to arbitration before a single arbitrator, subject to the commercial arbitration rules of the American Arbitration Association . . . ."

The Commercial Arbitration Rules of the American Arbitration Association ("AAA") provide, in pertinent part, as follows:

"The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim."

Although the question of arbitrability is generally an issue for judicial determination, when the parties' agreement specifically incorporates by reference the rules of the American Arbitration Association ("AAA") and employs language referring "all disputes" to arbitration, courts will leave the question of arbitrability to the arbitrators (Life Receivables Trust v Goshawk Syndicate 102 at Lloyd's, 66 AD3d 495, 495-496, affd 14 NY3d 850; see also, Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 47; Contec Corp. v Remote Solution Co., Ltd., 398 Fed 3d 205, 208 [2nd Cir]). Here, the agreement incorporates the rules of the AAA and provides that "any controversy or claim arising out of or relative to" the agreement shall be submitted to arbitration. Thus, the scope of the parties' arbitration agreement, including issues of arbitrability, are for the arbitrator to determine (see, Life Receivables Trust, supra at 496).

"Questions of arbitrability" is a term of art covering disputes about (1) whether the parties are bound by a given arbitration clause, as well as disagreements about (2) whether an arbitration clause in a concededly binding contract applies to a particular controversy (Cartagena Enter., Inc. v J. Walter Thompson Co., US Dist Ct, SDNY, Feb. 6, 2016, Scheindlin, J. [2013 WL 5664992] at *2). Both disputes involve the arbitration agreement's scope (Id.). Thus, whether the arbitration clause applies to the plaintiff's claims is an issue to be resolved by the arbitrator and not the court.

Likewise, the issue of whether Jennifer O'Brien and 328 Main LLC, who are not signatories to the agreement, may compel arbitration is an issue properly resolved by the arbitrator (see, Lapina v Men Women NY Model Mgt. Inc., 86 F Supp 3d 277, 283-284 [SDNY]). Moreover, as a signatory to a contract containing an arbitration clause incorporating by reference the AAA rules, the plaintiff cannot disown its agreed-to obligation to arbitrate "any controversy or claim arising out of or relative to" the agreement, including the question of arbitrability with Jennifer O'Brien and 328 Main LLC (see, Contec Corp., supra at 211). A signatory to an arbitration agreement is estopped from avoiding arbitration with a non-signatory when (i) there is a close relationship between the parties and controversies involved and (ii) the signatory's claims against the non-signatory are intimately founded in and intertwined with the underlying agreement containing the arbitration clause (Birmingham Assoc. Ltd. v Abbott Laboratories, 547 F Supp 2d 295, 301 [SDNY], affd 328 Fed Appx 42). The court finds that these two requirements have been met. Accordingly, the [*2]matter is stayed, and the parties are directed to proceed to arbitration.