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Supreme Court, New York County, February 5, 2010
APPEARANCES OF COUNSEL
Gusrae, Kaplan, Bruno & Nusbaum PLLC, New York City (Brian D. Graifman and Daniel M. Branower of counsel), for defendant. Rubin, Fortunato & Harbison P.C., Paoli, Pennsylvania (Jason K. Roberts of counsel), for plaintiff.
{**27 Misc 3d at 392} OPINION OF THE COURT
James A. Yates, J.
Merrill Lynch International Finance, Inc. (MLIFI) seeks payment on a promissory note from Conway Donaldson, a former registered broker for Merrill Lynch Pierce Fenner & Smith (MLPFS), who allegedly owes money on a low-interest retention loan he received upon MLPFS' merger with Bank of America Corporation (BofA). MLIFI, an affiliate of MLPFS and a subsidiary of BofA/Merrill Lynch & Co., Inc., filed a motion for summary judgment in lieu of complaint (motion sequence No. 001), pursuant to CPLR 3213, seeking judgment equal to the unpaid balance of the retention loan. The company also seeks to recover interest and attorneys' fees.
Conway Donaldson has moved to compel arbitration (motion sequence No. 002), arguing that the dispute between the parties arises from or relates to his employment with MLPFS, which is bound to arbitrate any employment-related dispute under the Rules of the Financial Industry Regulatory Authority, Inc. (FINRA). FINRA requires that disputes arising from the "business activities of a member or associated person" be arbitrated. Defendant is a registered associated person under FINRA. In response, MLIFI contends that it is not a broker-dealer and therefore, it is not required to arbitrate disputes under FINRA rules.
This court, on October 1, 2009, denied MLIFI's motion for summary judgment in lieu of complaint and granted Donaldson's motion to compel arbitration. Subsequently, in light of similar actions with unrelated brokers, but raising the same issues and with varied results, brought before Justices Barbara R. Kapnick (Merrill Lynch Intl. Fin., Inc. v Collins, Sup Ct, NY County, Oct. 15, 2009, index No. 601997-2009), O. Peter Sherwood (Merrill Lynch Intl. Fin., Inc. v [*2]Krieger, Sup Ct, NY County, Dec. 9, 2009, index No. 112071-2009) and Bernard J. Fried (Merrill Lynch Intl. Fin., Inc. v Gutkin, Sup Ct, NY County, Dec. 17, 2009, index No. 601176-2009), plaintiff moved for leave to reargue.
I. Background
A. The Relationship among the Parties
There are three interested parties in this action. MLPFS (not a named party) was a Delaware corporation with its principal{**27 Misc 3d at 393} place of business in New York. As an investment banking firm, it offered research and brokerage services to investors. MLPFS failed in 2008 and was bought by BofA. After January 1, 2009, MLPFS became a wholly-owned subsidiary of BofA/Merrill Lynch & Co., Inc., a leading global bank and wealth management franchise.
MLIFI is also a subsidiary of BofA and was a sister company to MLPFS. MLIFI is the legal entity which had extended a loan to certain brokers employed by MLPFS conditioned upon continued employment at MLPFS and which, in the above-mentioned cases, is currently pursuing a number of brokers for unpaid balances.
Defendant Conway Donaldson was employed as a financial advisor and registered broker at MLPFS from June 2000 until April 2009.
B. The Arbitration Clause
Two written agreements are at issue. The first is an employment contract between Donaldson and MLPFS which contains a broad arbitration clause, requiring arbitration of all employment

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