| N.J.R. Assoc. v Tausend |
| 2011 NY Slip Op 03301 [83 AD3d 596] |
| April 26, 2011 |
| Appellate Division, First Department |
| N.J.R. Associates, a New York Limited Partnership,Respondent, v Nicole Tausend, a Limited Partner of N.J.R. Associates,Appellant. |
—[*1] Wilk Auslander LLP, New York (Alan D. Zuckerbrod of counsel), for respondent.
Order and judgment (one paper), Supreme Court, New York County (Joan A. Madden, J.),entered November 15, 2010, which, to the extent appealed from, granted the petition to stayarbitration of respondent's fraud-based counterclaims, denied respondent's motion to dismiss thepetition, and denied respondent's request for sanctions, unanimously modified, on the law, thepetition denied, and the motion to dismiss the petition granted, and otherwise affirmed, withoutcosts.
Respondent's filing of a CPLR article 75 petition to stay the arbitration sought by petitioneron the grounds that the arbitration agreement was invalid due to fraud did not constitute a waiverof her right to arbitrate her counterclaims (see Matter of Heilman [Casella], 188 AD2d294 [1992], lv denied 82 NY2d 652 [1993]). Given that petitioner initiated the arbitrationand successfully moved to dismiss respondent's petition to stay the arbitration, petitioner is notentitled to stay the arbitration of respondent's counterclaims on statute of limitations grounds(see CPLR 7503 [b]; Morfopoulos v Lundquist, 191 AD2d 197 [1993]).
Sanctions against petitioner are not warranted. Concur—Tom, J.P., Andrias, Friedman,Abdus-Salaam and RomÁn, JJ. [Prior Case History: 2010 NY Slip Op 32936(U).]