Opinion
September 29, 1994
Appeal from the Supreme Court, New York County (Edith Miller, J.).
While an arbitrator should decide any issue of whether or not a "meeting of the minds" occurred between the parties (Matter of Fener Realty Co. [NICO Constr. Co.], 182 A.D.2d 436, 437), the IAS Court itself properly decided the issue of capacity to contract since an issue of public policy is involved (cf., Matter of Prinze [Jonas], 38 N.Y.2d 570, 576).
The IAS Court wrongly concluded that respondent is entitled to rely on the "winding up" provision of Business Corporation Law § 1006 (a) since rather than winding up, it entered into a new business relationship with petitioner at a time when its corporate status had lapsed due to non-compliance with unspecified provisions of Nevada corporations law. Respondent was not exercising a right or remedy existing as of its dissolution (see, Matter of 172 E. 122 St. Tenants Assn. v. Schwarz, 73 N.Y.2d 340, 349). All the same, the fact that the respondent corporation was dissolved in another State is of no moment, as it continues as a de facto corporation (see, National Bank v. Paskow, 75 A.D.2d 568, 569, affd 53 N.Y.2d 953).
Concur — Ellerin, J.P., Ross, Asch, Rubin and Williams, JJ.