Opinion
CA 03-00713
October 2, 2003.
Appeal from that part of an order of Supreme Court, Monroe County (Frazee, J.), entered February 4, 2003, that granted the motion of defendant A.A.C. Contracting, Inc. seeking a permanent stay of arbitration.
BOYLAN, BROWN, CODE, VIGDOR WILSON, LLP, ROCHESTER (DAVID K. HOU OF COUNSEL), FOR DEFENDANT-APPELLANT.
CHAMBERLAIN, D'AMANDA, OPPENHEIMER GREENFIELD, ROCHESTER (HENRY R. IPPOLITO OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: GREEN, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Supreme Court properly granted the motion of defendant A.A.C. Contracting, Inc. (AAC) seeking a permanent stay of arbitration. As the court properly determined, defendant Horning Construction (Horning) waived its right to arbitrate its claim against AAC by asserting a cross claim against AAC in which it sought recoupment of the same funds sought in its demand for arbitration ( see generally De Sapio v. Kohlmeyer, 35 N.Y.2d 402, 405). Moreover, the demand for arbitration was not made until two years after the interposition of the cross claim. Where, as here, the "participation [of Horning] in the lawsuit manifests an affirmative acceptance of the judicial forum, with whatever advantages [the judicial forum] may offer in the particular case, [its] actions are then inconsistent with [its] later claim that only the arbitral forum is satisfactory" ( id.).