| Matter of Waldman v Mosdos Bobov, Inc. |
| 2010 NY Slip Op 03343 [72 AD3d 983] |
| April 20, 2010 |
| Appellate Division, Second Department |
| In the Matter of Chaim Waldman et al.,Appellants, v Mosdos Bobov, Inc., et al., Respondents, and Bobover Yeshiva Bnei Zion,Also Known as Bobov Bnei Zion, Respondent. |
—[*1] Dechert, LLP, New York, N.Y. (Gary J. Mennitt of counsel), forrespondent-respondent.
In a proceeding pursuant to CPLR article 75 to confirm an arbitration award, the petitionersappeal from (1) an order of the Supreme Court, Kings County (Schneier, J.), dated August 6,2008, which denied their petition to confirm the award and granted the cross petition to vacatethe award, and (2) so much of an order of the same court dated December 19, 2008, as, uponrenewal and reargument, adhered to the original determination.
Ordered that the appeal from the order dated August 6, 2008, is dismissed, as that order wassuperseded by the order dated December 19, 2008, made upon renewal and reargument; and it isfurther,
Ordered that the order dated December 19, 2008, is affirmed insofar as appealed from; and itis further,
Ordered that one bill of costs is awarded to the respondent-respondent.
"Like contract rights generally, a right to arbitration may be modified, waived or abandoned"(Sherrill v Grayco Bldrs., 64 NY2d 261, 272 [1985]; see Stark v Molod Spitz DeSantis & Stark, P.C., 9 NY3d 59, 66[2007]). Where a party affirmatively seeks the benefits of litigation, in a manner "clearlyinconsistent with [its] later claim that the parties were obligated to settle their differences byarbitration," the right to arbitrate has been waived (Stark v Molod Spitz DeSantis & Stark, P.C., 9 NY3d 59, 66 [2007][internal quotation marks omitted]; Flores v Lower E. Side Serv. Ctr., Inc., 4 NY3d 363, 372 [2005];Sherrill v Grayco Bldrs., 64 NY2d 261, 272 [1985]; Fein v General Elec. Co., 40 AD3d 807 [2007]).
Here, the petitioners previously commenced two judicial actions regarding the same disputeupon which this arbitration award is based, one of which terminated with this Court's affirmanceof the dismissal of the complaint (see Waldman v Bobover Yeshiva Bnei Zion, 289AD2d 399 [2001]). "By commencing an action at law involving arbitrable issues, [thepetitioners] waived whatever right [they] had [*2]to arbitration"(Hart v Tri-State Consumer, Inc.,18 AD3d 610, 612 [2005]; see Denihan v Denihan, 34 NY2d 307 [1974]; Matterof G.J. DiBenedetto, M.D., P.C., Retirement Trust v Nationwide Assoc., 297 AD2d 740[2002]; Matter of Hawthorne Dev. Assoc. v Gribin, 128 AD2d 874 [1987]). Moreover,once waived, the right to arbitrate cannot be regained, even by the respondent's failure to seek astay of arbitration (see Sherrill v Grayco Bldrs., 64 NY2d at 274; Ryan v Kellogg Partners Inst. Servs.,58 AD3d 481 [2009]; Tengtu Intl.Corp. v Pak Kwan Cheung, 24 AD3d 170 [2005]; Bucci v McDermott, 156AD2d 328 [1989]). Since the arbitrators should not have conducted the arbitration, the awardexceeded their authority (see CPLR 7511 [b] [1] [iii]; Matter of G.J. DiBenedetto,M.D., P.C., Retirement Trust v Nationwide Assoc., 297 AD2d at 741), and the cross petitionto vacate the award should have been granted on this ground. Accordingly, the order datedDecember 19, 2008, must be affirmed insofar as appealed from on this alternative ground(see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539 [1983]).Prudenti, P.J., Dillon, Eng and Roman, JJ., concur. [Prior Case History: 20 Misc 3d1130(A), 2008 NY Slip Op 51669(U).]