Summary
In Malan Constr. Corp. v. Allis-Chalmers Mfg. Co. (35 A.D.2d 788), it was held that the action of the vendor of certain equipment in foreclosing upon his unpaid seller's lien, constituted a waiver of his right to arbitration of arbitrable disputes arising from the contract of sale.
Summary of this case from Matter of Bd. of Educ., BrentwoodOpinion
November 5, 1970
Order, Supreme Court, New York County entered on July 8, 1969, so far as appealed from, modified, on the law and the facts, to the extent of denying the motion of plaintiffs-respondents to stay this action pending arbitration, granting the cross-motion of defendant-appellant to permanently stay arbitration, and granting plaintiffs-respondents' motion to vacate defendant-appellant's demand for a bill of particulars as to Items I, II and III, except Item III(A) which is consented to, and otherwise denying it, and, as so modified, affirmed. Appellant shall recover of respondents $30 costs and disbursements of this appeal. During March, 1963, defendant-appellant agreed to sell to plaintiffs-respondents certain equipment for an agreed price. The contract contained a valid arbitration clause limiting the function of the arbitrator to making findings of fact and not conclusions of law. Arbitrable disputes between the parties arose prior to September, 1966. Defendant filed a lien on September 26, 1966. On March 23, 1967, defendant commenced an action to foreclose its lien, thus waiving its right to arbitration and inviting respondents to litigate the disputes between the parties in an action at law rather than by arbitration. Respondents accepted that invitation by (1) serving their answers to the original and supplemental and amended complaints; (2) seeking to assert a counterclaim therein; (3) offering to waive a jury trial; (4) conducting examinations before trial; and (5) commencing the instant action on January 7, 1969. No request for arbitration was made until February 3, 1969, approximately 28 months after the disputes between the parties arose, and almost two years after the foreclosure action was commenced. The foreclosure action was concluded by entry of judgment on April 9, 1970 in favor of defendant and against plaintiffs and the Aetna Casualty Company which had bonded the lien. The facts in this case show that the parties elected to resolve their disputes not by arbitration, but in a court of law. The parties deliberately abandoned and waived their respective rights to enforce arbitration. ( Matter of Nathan Assoc. [ Murray Hill Constr. Corp.], 268 N.Y. 692; Matter of Zimmerman v. Cohen, 236 N.Y. 15; Matter of Cooper Hats [ Kadis], 285 App. Div. 937, affd. 309 N.Y. 705; Oklahoma Pub. Co. v. Parsons Whittemore, 255 App. Div. 589; Matter of Bel-Rose Fashions v. Braunheim, 25 Misc.2d 1037; 22 Carmody-Wait 2d, New York Practice, § 141:70.) The length of the demand for particulars in the instant case does not in and of itself make the demand oppressive and in our opinion it does not cast an unreasonable burden on compliance. The complaint is lengthy and prolix and the demand for particulars must of necessity be extensive. Netter v. Freidus ( 24 A.D.2d 434) is authority for the statement where claims are so broad and general, the demand, even though long, may in certain cases be necessary. Golden v. Eastern Life Ins. Co. of N.Y. ( 281 App. Div. 1014) is pertinent, holding a demand, although lengthy, is not excessively so by reason of the length and prolixity of the plaintiffs' pleading. Plaintiffs' motion for vacatur is granted to the extent of vacating Items, I, II and III, except III (A) which is consented to, and otherwise vacatur is denied. The items disallowed refer to a contract which in turn relates to the performance of a contract with the City of New York, and in the circumstances the information called for is unnecessary.
Concur — Capozzoli, J.P., McGivern and McNally, JJ.; Nunez and Tilzer, JJ., dissent in part in the following memorandum by Nunez, J.: I dissent in part to the extent of voting to affirm the vacatur of the demand for a bill of particulars. In my view Special Term properly held that the remedy is not successive pruning by the court of the demand for a bill of particulars by eliminating some items and portions of others, but a vacatur of the demand. The complaint is reproduced in 8 pages of the record on appeal. On the other hand, the demand takes up 23 pages of the record on appeal. In Winterstein v. Mauntner ( 84 App. Div. 962) this court said: "It appears that the defendants are entitled to a bill of particulars but plaintiff objects to the demand upon the ground it casts an unreasonable burden upon her to comply therewith. The demand consists of fifty-nine separately numbered paragraphs containing over two hundred items. [Compared to 33 separately numbered paragraphs and about 150 separate items.] We recognize that the complaint is lengthy but this does not justify the meticulous and unnecessarily repetitious demand served herein. We have heretofore held that such a demand should be denied in its entirety as it constitutes an abuse of the right to a bill of particulars. [Citing cases.] Order unanimously reversed and the demand vacated in its entirety". In Carroad v. Regensburg ( 17 A.D.2d 734) this court modified Special Term's order which granted in part and denied in part plaintiff's motion to modify defendants' demand for a bill of particulars and unanimously vacated the demand in its entirety with costs and stated: "The demand herein, in the light of the complaint and the recognized limitations as to particulars in such actions, seems to us unreasonable, oppressive, and an abuse of the right to a bill of particulars. The remedy, under the circumstances, is not successive prunings of the demand by Special Term and this court by eliminating some items and portions of others, but rather a vacatur of the entire demand [citing cases]". The demand calls in one instance on the plaintiff to set forth every single term and provision of a public document, other items demand names of witnesses, evidence and details of general damages, legal interpretations or details of facts not alleged in the complaint. I agree with Special Term that "Defendant is seeking an oppressive volume of detailed, minute and petty particulars, many of which are unnecessary in the proper preparation of the case", and we should not undermine Special Term's discretion in these matters.