Par Plumbing Co. v. Oxford Hall Corp.

• Decision Date: 14 July 1964
• Citation: 43 Misc.2d 792,252 N.Y.S.2d 341
• Parties: PAR PLUMBING CO., Inc., v. OXFORD HALL CORP. et al.
• Court: New York Supreme Court

Page 341

252 N.Y.S.2d 341

43 Misc.2d 792

PAR PLUMBING CO., Inc., v. OXFORD HALL CORP. et al.

Supreme Court, Special Term, Kings County, Part I.

July 14, 1964.

Levine & Gordon, Jamaica, for plaintiff.

Rothstein & Korzenik, New York City (Harold Korzenik and Jerome Weisberger, New York City, of counsel), for defendants.

LOUIS B. HELLER, Justice.

In this action seeking to recover an alleged balance for work, labor and services, for an account stated and upon a guaranty of payment executed by the individual defendant, the defendants move for an order compelling the plaintiff to arbitrate the differences existing between the parties and staying the action instituted by the plaintiff. Plaintiff crossmoves for an order staying arbitration and directing that the action be continued.

Briefly the facts reveal that the action was commenced against the corporate defendants on March 4, 1964, and against the individual defendant on April 23, 1964. The defendants were given until June 3rd to serve their answers. During this period the demand for arbitration was served upon the plaintiff on June 2, 1964, and this proceeding instituted by the defendants.

It is contended by the plaintiff that the defendants had, by stipulating to answer the complaint herein and by having 'attempted on two occasions to commence an action in the Supreme Court, New York County,' against the plaintiff, waived their right to arbitration.

With this contention the court is not in accord. The rule to be drawn from the authorities is that whether the participation in an action is a waiver of the right to arbitration depends on whether the participation demonstrates an intention to abandon such right. A defendant, if he takes an active part running for an extended period of time in the action and who also requests affirmative relief going to the merits of the arbitrable claim, may be held to have lost his right to arbitrate (Matter of Zimmerman v. Cohen, 236 N.Y. 15, 139 N.E. 764; Ted Stoppick & Co. v. Ernest Glick Co., Sup., 110 N.Y.S.2d 850). However, a party cannot reasonably be deemed to have waived a remedy unless he seeks others, knowing that they are exclusive (United Paper Machinery Corp. v. DiCarlo, 19 A.D.2d 143, 241 N.Y.S.2d 711).

Nowhere from the facts presented can it affirmatively be stated that the defendants so participated in the instant action as to demonstrate an intention to abandon their right of arbitration provided for by the contract. Nor can it be said that...