Opinion
10-11-2016
Charles F. GIBBS, Plaintiff–Appellant, v. HOLLAND & KNIGHT, LLP, Defendant–Respondent.
Blank Rome LLP, New York (Leslie D. Corwin of counsel), for appellant. Orrick, Herrington & Sutcliffe LLP, New York (John D. Giansello and Michael Delikat of counsel), for respondent.
Blank Rome LLP, New York (Leslie D. Corwin of counsel), for appellant.
Orrick, Herrington & Sutcliffe LLP, New York (John D. Giansello and Michael Delikat of counsel), for respondent.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered April 30, 2015, which granted defendant's motion to compel arbitration and stay this action, and order, same court and Justice, entered October 22, 2015, which denied plaintiff's motion for renewal, unanimously affirmed, with costs.
The motion court correctly found that, although plaintiff had not signed the partnership agreement containing the arbitration provision, he had assumed the duty to arbitrate by annually agreeing to be bound by the partnership agreement and by repeatedly invoking the dispute resolution provision in the partnership agreement (see Thomson–CSF, S.A. v. American Arbitration Assn., 64 F.3d 773, 777 [2d Cir.1995] ).
The court also correctly found that the dispute was governed by the arbitration provision.
Renewal was properly denied, as no waiver of the right to arbitrate was effected by defendant's application for a preliminary injunction in aid of arbitration and the accompanying assertion of counterclaims, with no further litigation activity (see Cusimano v. Schnurr, 26 N.Y.3d 391, 400, 23 N.Y.S.3d 137, 44 N.E.3d 212 [2015] ; LaRosa v. Arbusman, 74 A.D.3d 601, 604, 903 N.Y.S.2d 371 [1st Dept.2010] ). Notably, defendant demonstrated a clear intent to continue the arbitration process by seeking mediation of the counterclaims under the dispute resolution provision of the partnership agreement.
We have considered plaintiff's other contentions and find them unavailing.
MAZZARELLI, J.P., SWEENY, ACOSTA, MOSKOWITZ, GESMER, JJ., concur.