Nachmani v. By Design Llc

• Decision Date: 08 June 2010
• Citation: 2010 N.Y. Slip Op. 04847,901 N.Y.S.2d 838,74 A.D.3d 478
• Parties: Oded NACHMANI, Petitioner–Respondent,v.BY DESIGN, LLC, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

74 A.D.3d 478

901 N.Y.S.2d 838

2010 N.Y. Slip Op. 04847

Oded NACHMANI, Petitioner–Respondent,

v.BY DESIGN, LLC, Respondent–Appellant.

Supreme Court, Appellate Division, First Department, New York.

June 8, 2010.

OPINION TEXT STARTS HEREThe Law Office of Bo–Yong Park, P.C., New York (William J.T. Brown of counsel), for appellant.Kalnick, Klee & Green, LLP, New York (Allen Green of counsel), for respondent.

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered January 25, 2010, granting the petition to compel a non-American Arbitration Association (“AAA”) arbitration and to stay the AAA arbitration demanded by respondent, unanimously affirmed, without costs.

The court aptly perceived that respondent, by demanding AAA arbitration nearly four months after service of petitioner's demand for arbitration and without seeking a stay of petitioner's proceeding, was seeking to delay the matter and effectively refusing to arbitrate pursuant to petitioner's demand; we need not address whether respondent had other improper motives ( but see generally Brady v Williams Capital Group, L.P., 14 N.Y.3d 459, 902 N.Y.S.2d 1, 928 N.E.2d 383 [2010] ). We note that respondent had participated in the earlier-commenced proceeding by service of a response advancing a counterclaim and by designating its arbitrator pursuant to the parties' agreement ( see Matter of North Riv. Ins. Co. [Morgan], 291 A.D.2d 230, 233, 737 N.Y.S.2d 355 [2002] ). The subject agreement's choice of New York law for its enforcement displaced the provisions of the Federal Arbitration Act, and, in any event, we are not bound by respondent's authority regarding the ability of the court to provide the relief sought ( see ImClone Sys., Inc. v. Waksal, 22 A.D.3d 387, 802 N.Y.S.2d 653 [2005] ). With respect to its purely speculative claims regarding petitioner's designated arbitrator ( see Bronx Lebanon Hosp. Ctr. v. Signature Med. Mgt. Group, L.L.C., 6 A.D.3d 261, 775 N.Y.S.2d 279 [2004] ), AAA arbitration would not have provided respondent any greater assurances of arbitrator impartiality ( see Morgan Guar. Trust Co. v. Solow Bldg. Co., 279 A.D.2d 431, 720 N.Y.S.2d 69 [2001], lv. denied 96 N.Y.2d 711, 727 N.Y.S.2d 697, 751 N.E.2d 945 [2001] ). Petitioner correctly interpreted the provision requiring that the decision be in accordance with the AAA Commercial Rules as a choice of law rather than a forum selection clause ( see Merrill Lynch, Pierce, Fenner & Smith v. McLeod, 208 A.D.2d 81, 83–84,...