RUTTURA & SONS CONSTRUCTION CO., INC. v. J. Petrocelli Construction, Inc.

• Decision Date: 19 January 1999
• Citation: 257 A.D.2d 614,684 N.Y.S.2d 286
• Court: New York Supreme Court — Appellate Division
• Parties: RUTTURA & SONS CONSTRUCTION CO., INC., Appellant,<BR>v.<BR>J. PETROCELLI CONSTRUCTION, INC., et al., Respondents.

257 A.D.2d 614

684 N.Y.S.2d 286

RUTTURA & SONS CONSTRUCTION CO., INC., Appellant,

v.J. PETROCELLI CONSTRUCTION, INC., et al., Respondents.

Decided January 19, 1999.

Santucci, J. P., Altman, Friedmann and McGinity, JJ., concur.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court correctly determined that the defendant J. Petrocelli Construction, Inc. (hereinafter Petrocelli), did not waive its right to arbitrate by participating in this litigation. Because Petrocelli raised the requirement of arbitration as an affirmative defense in its answer, and because there are arbitrable and nonarbitrable issues involved, it did not waive its right to arbitration (see, Sherrill v Grayco Bldrs., 64 NY2d 261; De Sapio v Kohlmeyer, 35 NY2d 402; Bucci v McDermott, 156 AD2d 328).

The Supreme Court also properly granted the branch of the cross motion which was for summary judgment dismissing the second cause of action, which was to recover on a surety bond. The evidence indicates that the plaintiff did not commence this cause of action within one year after work was completed, as required by the subcontract. The plaintiff has failed to show that facts essential to justify opposition may exist upon further discovery. A determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence (see, Auerbach v Bennett, 47 NY2d 619; see also, Carrington v City of New York, 201 AD2d 525; Kennerly v Campbell Chain Co., 133 AD2d 669).