Summary
finding waiver when defendant waited over year to seek stay
Summary of this case from General Textile Printing v. ExpromtorgOpinion
December 4, 1990
Appeal from the Supreme Court, New York County (Francis Pecora, J.).
The IAS court properly determined that the defendant, a New York securities firm, had waived its right to compel arbitration by its affirmative use of the judicial process in a dispute with its customer. It is well settled that the right to arbitration, like contract rights generally, may be modified, waived or abandoned. (Sherrill v. Grayco Bldrs., 64 N.Y.2d 261, 272.)
Although not every foray into the courthouse effects a waiver of the right to arbitrate, nevertheless, where a defendant's participation in litigation "manifests an affirmative acceptance of the judicial forum, with whatever advantages it may offer in the particular case, his actions are then inconsistent with a later claim that only the arbitral forum is satisfactory." (De Sapio v. Kohlmeyer, 35 N.Y.2d 402, 405.) Here, defendant demanded a complaint, obtained an extension of time to answer the complaint and then served an answer with counterclaims, sought discovery of documents, and waited more than one year before seeking a stay, all of which evidenced a waiver of the right to arbitrate. (Sherrill v. Grayco Bldrs., 64 N.Y.2d, supra, at 272; De Sapio v. Kohlmeyer, 35 N.Y.2d, supra, at 405.)
Concur — Ellerin, J.P., Wallach, Smith and Rubin, JJ.